In our third article during National Surrogacy Week (2-8 August 2021), Helen Page will continue looking at the criteria that must be satisfied in order to obtain a Parental Order and the potential issues that may arise.
Section 54 Criteria
In my article yesterday (link here), I started to look at the criteria that must be satisfied by the intended parents of a child born through surrogacy in order to obtain a Parental Order. These are more commonly referred to as the “Section 54 Criteria” – simply because they can be found in Sections 54 and 54A of the Human Fertilisation and Embryology Act 2008.
A number of the criteria are self-explanatory and, generally speaking, should not cause too many difficulties for any intended parent(s) to satisfy. However, some are not so straightforward, and issues can arise, meaning the court will need to look more closely at whether the criteria have been satisfied and whether to grant the Parental Order.
6-month time limit
This element of the criteria sounds pretty straightforward, right? You simply need to make sure the application is made within six months of the child being born. Job done. But what happens if, for whatever reason, the application is not made within this timeframe?
Since 2014, the Court has been willing to adopt a more flexible approach to the s54 criteria. It is important to point out that this flexibility does not extend to all the criteria and some are completely fixed, with no room for manoeuvre.
The criteria relating to the timeframe for making the application was dealt with by Sir James Munby in 2014, when he was the President of the Family Division, in the case of Re X (A Child) (Surrogacy: Time limit). The child in this case born on 15 December 2011; however, the application for a Parental order was not made until 12 February 2014. This was quite simply because the intended parents did not know they needed to do this to become the legal parents for the child.
It is an issue that had arisen before the Court on numerous previous occasions with, sadly, negative outcomes. It was felt that there was not the option for the Court to extend the statutory time limit that was set out in Section 54 and so the intended parents were unable to satisfy all of the criteria to be able to obtain a Parental Order. On this occasion, however, Sir James Munby took a different view, highlighting:
“Section 54 goes to the most fundamental aspects of status and…to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family…
[T]his case is fundamentally about [the child’s] identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child.
A parental order has, to adopt…a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also…in relation to the practical and psychological realities of [the child’s] identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.
It creates …"the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible…. And the court considering an application for a parental order is required to treat the child's welfare throughout his life as paramount….. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.”
Sir James Munby felt that Parliament intended a sensible result when setting out the Section 54 criteria. He did not think that, given the significant importance of a Parental Order, Parliament intended that the difference between the application being made within six months vs. six months and one day should be determinative and the delay of even one day should be fatal to the outcome of the application. He was satisfied that the court is not prevented from making an order if the application is made after the end of the statutory six-month period.
This does not, of course, give blanket approval for all applications to be made after the six-month period has ended. However, it demonstrates that the fact that the Court recognise the important nature of the Parental Order and the potential impact on not only the intended parents, but more importantly the child, of the Order not being made, such that it is willing to offer a degree of flexibility, in circumstances where this may be the only criteria that has not been satisfied,
Failing to meet the criteria
Sadly, there are going to be certain cases where the intended parent(s) simply do not satisfy the criteria required for a Parental Order and the Court will be unable to grant one. So, what happens in that situation?
The intended parent(s) are not going to become the legal parent(s) of the child, as this can only be conferred upon them through a Parental Order. They can however seek ‘parental responsibility’ for the child by applying for a Child Arrangements Order. This is commonly applied for in circumstances where parents have separated and regulates who a child will live with and what time they will spend with each parent. It is, however, an option open for intended parents. By securing a Child Arrangements Order confirming that the child will live with them, it will also confer upon them parental responsibility. This will allow the intended parents to make day to day decisions in respect of the children, for example in relation to their religion, schooling and healthcare. It is important to remember, however, that the surrogate mother (and her spouse / civil partner / partner, where applicable) will still be the legal parent(s) of the child. This cannot be extinguished in the absence of a Parental Order.
In this situation, it is going to be vital for the intended parent(s) to make sure that they have a valid will in place to ensure that the child will inherit from them in the event of their death. They need to make sure that they all of the mechanisms in place to make sure the child will inherit in the same way that they would have done had they become the legal parent(s).
If you or a family member would like to talk to us in confidence on this issue, our first contact is time unlimited and free of charge. Please contact us.