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The mother and father entered into a surrogacy agreement in 2011 with the surrogate mother and father in India. The child was conceived using a donor egg and the father’s sperm. The child was born in December 2011 but the parents did not return to the UK with the child until 2013 by which time the 6-month time limit for applying for parental orders under s 54(3) of the HFEA 2008 had lapsed as they were unaware of this requirement.
In 2013 the surrogate parents confirmed in writing that they wished to relinquish all parental rights in respect of the child. The parents sought to regularise the child’s legal status which ideally would have been by way of parental orders which would recognise the reality of the situation that the father was the biological father of the child. The alternative was an adoption order.
In recognition of the fact that the time limit had passed and that neither parent held parent responsibility, the child was made a ward of court and proceedings were transferred to the High Court. The case proceeded on the assumption that parental orders were not open in this instance due to the time delay and that in the absence of an application for an adoption order the only options were residence, special guardianship or wardship.
Nevertheless the parents applied for parental orders 2 years and 2 months after the birth of the child and the court was asked to determine whether the time limit under s 54(3) was absolute.
The President in interpreting the meaning of s 54(3) found that it could not have been the intention of Parliament to place an ultimate bar on the grant of parental orders where applications were made outside of the 6-month time limit.
That interpretation was consistent with the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the decision of Theis J in A v P (Surrogacy: Parental Order: Death of Applicant)  EWHC 1738 (Fam),  2 FLR 145. Although that case was concerned with the interpretation of s 54(4)(a) of the HFEA 2008 the same reasoning could be applied here that the statute must be ‘read down’ in such a way as to ensure that the essence of the protected right was not impaired and what was being protected were rights that were practical and effective not theoretical and illusory.
The true focus in this case was on the 13-month period between the expiry of the time limit and when the judge first identified the issue of s 54(3). Taking into account the importance of a parental order in influencing a person’s identity as a human being, the fact that the court had to look far into the child’s future, and the impact of missing the deadline on an innocent child whose welfare was the court’s paramount concern the court was bound to adopt a more liberal approach in order to secure compliance with the European Convention. Each case would turn on its own facts but in this case the application would be allowed to proceed.
As the other elements of the application were satisfied and it was plainly in the child’s best interests for the parents to be recognised in law as his legal parents parental orders were granted. The wardship and other orders were all discharged.
Neutral Citation Number:  EWHC 3135 (Fam)
Case No: BM13P08884
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
Royal Courts of Justice
Date: 3 October 2014
SIR JAMES MUNBY
PRESIDENT OF THE FAMILY DIVISION
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Re X (A Child) (Surrogacy: Time limit)
Ms Elizabeth Isaacs QC and Mr Matthew Maynard (instructed by Anthony Collins Solicitors LLP) for the child (X)
Ms Tracy Lakin (instructed by Greens Solicitors LLP) for the commissioning father
Ms Dympna Howells (instructed by Glaisyers) for the commissioning mother
The surrogate mother and the surrogate father were neither present nor represented