Welfare of the Child: A balancing exercise
In Re M (A child)  EWCA Civ 228 (2nd March 2017) the Court of Appeal dismissed an appeal by a homosexual couple, A and B, against an order that the child, Z, should live with the surrogate. The surrogate mother, X, had not been willing to consent to a parental order. A was the genetic father. The substantial ground of appeal concerned whether the judge had conducted a proper balancing exercise when engaging in the welfare analysis of the child’s needs. The Court of Appeal concluded that the trial judge had conducted a proper balancing exercise. The judge at first instance was entitled to put weight on the fact that separation from X would have a detrimental impact on Z and to conclude that in this case the genetic considerations did not justify a move. The judge was able to assure herself that Z would have the opportunity to share his life with his genetic father and siblings now and in the future. Z needed to have both A and B, and X in his life and it was X who was most able to secure this.
In Re Z (A child) (No. 2)  EHC 1191 (Fam) (16th May 2016) the applicant father, who was a single man, sought a declaration of incompatibility in accordance with s.4 HRA 1998 after the President previously ruled that the s.54 HFEA 2008 could not be read down in accordance with s.3 (1) HRA 1998 to enable a parental order to be made on the application of one person. S54 of the 2008 Act was declared incompatible with Z’s human rights under Article 14, taken in conjunction with Article 8, insofar as it prevented Z from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple.
In F v S  EWFC 70 (8th November 2016) a single father made an application for a Child Arrangements Order in relation to A, his biological child, who was born in USA following a legally recognised surrogacy arrangement. The respondent was the surrogate mother who gave birth to A following IVF with embryos created using gametes from the applicant and anonymous third party egg donor. The application was not contested.
The applicant had been registered as A’s father on her American birth certificate, but this was not issued under any of the enactments specified in s4(1)(A) Children Act 1989. The effect of s4(1)(a) of the act is that it is not possible for an unmarried father to acquire parental responsibility by birth registration if the child is born outside the UK. The applicant was also not able to obtain Parental Responsibility by way of a Parental Responsibility Agreement under s4(1)(b) as the parties had not entered into such an agreement. The father could not apply for a Parental Order because he was single. The applicant considered making an application to adopt but as A was born through an international compensated surrogacy arrangement, the application may have created complications in respect of criminal restrictions under the Adoption and Children Act 2002 and the bringing of a child into the UK for the purposes of adoption. In any event, he considered it inappropriate to adopt his own biological child. A Child Arrangements Order was made providing that A lives with the father.
On 14th December 2016 the House of Lords held a short debate on surrogacy. Baroness Chisholm of Owlpen confirmed that the Government will introduce a remedial order to achieve this, so that single people can apply for parental orders on the same basis as couples. The remedial order will be subject to consultation and will include transitional arrangements, which would put all single people on the same footing and allow a reasonable time period to apply. The House will recognise that there are complexities and a considerable number of consequential amendments to other pieces of legislation, so our current plan is that the remedial order will be introduced to Parliament in early 2017. On 7th February 2017 during a House of Commons debate, the Parliamentary Under-Secretary of State for Health, Nicola Blackwood also confirmed the government’s plans to push for a remedial order and she committed to pushing for this to happen by May.
In Re A&B (Surrogacy Consent)  EWHC 2643 (Fam) (25th October 2016), the surrogate mother and her husband did not give consent to a Parental Order being granted in favour of the applicant biological parents of the twins A and B. All other relevant criteria in s54 HFEA 2008 were met. The respondents did not wish to have any involvement in the children’s lives and were refusing their consent due to their own feelings of injustice. The children remained living with the applicants and the respondents remained the children’s legal parents. The proceedings were adjourned indefinitely in the hope that the respondents would change their mind.
In AB & CD v GH  EWFC 63 (7th March 2016), the judge quickly concluded that 6 out of the 7 criteria under s.54 HFEA 2008 were met. The judge took more time to consider the position in relation to domicile. Both applicants were born In Germany; their domicile of origin was Germany. Mrs Justice Thesis concluded that CD had acquired domicile of choice in this jurisdiction, and that even though the parties had not lived in the jurisdiction for any length of time since 2013, she had retained her domicile of choice and not abandoned it. The judge found so for the following reasons: a) she immersed herself in the life in the jurisdiction; b) she felt more attuned to the English culture and customs; b) the couple had their main family home in this jurisdiction; d) CD became a British citizen even though there was no need for her to do that; e) she had no plans in the future to return to Germany either on retirement or to be buried; f) the physical absence from the jurisdiction had not changed her intention to remain committed to living permanently and indefinitely in this jurisdiction. This was a case where the judge felt that the oral evidence had “brought her written evidence to life”
These cases, along with many others, highlight the current problems with the legislation. The courts will go as far as they can to read into the legislation to act in the best interests of the child despite the rigid nature of the HFEA 2008. We shall have to wait and see if the government keeps to its word and introduces a remedial order to rectify the problem for single parents. While there is much work to be done to improve how surrogacy arrangements are regulated and promoted, when the issue only affects a small minority of the population, it is hard to see how a light will be shone any brighter on the issue, anytime soon.