The President held in Re Z (A Child) (Surrogate Father: Parental Order)  EWFC 73
that s 54 of the Human Fertilisation and Embryology Act 2008 could not be read down to enable a parental order to be made in respect of a single applicant, thus rendering it incompatible with Article 8 taken in conjunction with Article 14 of the European Convention.
The father initially sought a parental order in accordance with s 54 of the Act in that it could be read down to allow an order to be made in respect of only one person. The father's fall-back position was to seek a declaration of incompatibility in accordance with s 4 of the Human Rights Act 1998.
Ultimately, all three parties invited the court to make a declaration that:
'Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple.'
The President was satisfied that, in all the circumstances, the declaration sought was soundly based in fact and law. Despite being invited to express his views as to how the incompatibility may be remedied, he declined to go further on the basis the matter related to a controversial area of social policy which was constitutionally a matter for the legislature, and for the government to decide whether or not to use the Ministerial power.
The father's representatives Natalie Gamble Associates have commented on the decision here
If you haven't got anything nice to say...don't say anything at all
It's the 'super' injunction case that's been making headlines, with talks of extra-marital relations and oil-filled paddling pools.
The latest hearing
in the saga saw the Supreme Court, by a majority of 4:1, continue the interim injunction pending the final hearing.
Initially the claimant, known as PJS, was refused an injunction; however, the Court of Appeal then prevented the newspapers printing details of the claimant and his partner. Undeterred, the details were released by a Scottish newspaper and publications in the US which quickly found their way on to the internet and into the wider public domain, with the press then arguing for the legitimate public interest in them being able to report the story, particularly given the coverage it had already obtained elsewhere. The Supreme Court, in extending the interim injunction, weighed the competing interests of the European Convention on Human Rights, Article 10, allowing freedom of expression, and Article 8, regarding privacy. Lord Mance said there was no public interest in naming PJS and that revealing the details would be a breach of the family's privacy.
While the story had been accessible on the internet previously, it was felt that, were the injunction lifted, coverage by the press would be intensive and could produce more enduring invasions of the privacy of PJS, his partner and their children.
Lord Toulson, dissenting, said that once such a story had become readily available to anyone who wanted to know it, it had lost the essence of confidentiality and that the court must live in the world as it is and not as it would like to be.
A full trial of the issue is anticipated later in the year.
Simply the best
It's the time of year you've all been waiting for (other than summer, Christmas...possibly your birthday), with the arrival of the newly updated Family Court Practice
. Made available for the early birds in Family Law Online from 11 May and now making its way in print, this year's version includes a new Procedural Guide on Setting Aside a Financial Relief Order, latest amendments to the CPR and the FPR (including Part 39 - Attachment of Earnings, and Part 40 - Charging Order, Stop Order, Stop Notice, plus PD40A) and recent guidance on a variety of issues including electronic monitoring in family cases, committal and arbitration. There is the usual updated commentary from the expert author team which considers everything from Sharland
, radicalisation, add-backs, pensions, children giving evidence and occupation rights. To order your copy, email firstname.lastname@example.org
or call 0117 917 5100 today to discuss online services.
In other news
See below for a list of at-a-glance headlines of important items and articles you might have missed:Bar Council issues guidance in relation to illegally obtained evidence
Tackling financial disclosures
Is Britain getting a divorce from marriage?
Changes to the Family Court: where are we now?
Case closure programme drives significant drop in CSA caseload
A day in the life of ... Sarah Phillimore (family law barrister)
Brexit: To Hell in a handcart - Episode One
Brexit: England and Wales as a global family law leader or EU-emasculated?
Family Law newsletter: 16 May 2016
The impact of technology on family law: Part 1: Procedure
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