The right of a single parent...

The right of a single parent to apply for a parental order in respect of a child has recently been considered by the Royal Courts of Justice.

A case which considered a single parent’s right to apply for a parental order has recently been heard before Sir James Munby in the Royal Courts of Justice.

The matter in question surrounded a child, “Z” who was born in August 2014 in America. Z was conceived using the applicant father’s sperm and a third party donor’s egg which were implanted into a surrogate.

After Z’s birth, the father obtained a declaratory judgment from an American court which effectively extinguished the surrogate’s legal rights and responsibilities for Z and established the father as Z’s sole parent. The father was then registered as Z’s father in America and the father subsequently returned to the UK with Z.

The law in the UK however still treated the surrogate as Z’s mother, for she was Z’s birth mother in compliance with s33 of the Human Fertilisation and Embryology Act 2008 (“HFEA”). The father did therefore not have parental responsibility for Z in the UK.

The Court noted that there were two potential routes for an applicant to obtain parental responsibility in such a scenario. These being firstly, by way of a parental order or secondly, by way of an adoption order.

The father therefore applied for a parental order under s54 of the HFEA and the surrogate mother provided her consent for such an order to be made.

The Court however were required to deal with the wording of s54 which required such an application to be made by two people. Examples of such applicants are i) husband and wife, ii) civil partners and iii) two persons living as partners in an enduring family relationship and are not within prohibited degrees of relationship to each other.

This is in contrast to adoption law which provides that an application for adoption can be made by one person or a couple.

Counsel for the father argued that an application for a parental order having to be made by two people is a discriminatory interference with a single person’s rights to private and family life. Also, that this is against the principles of 21st century family law; society is creating increasingly different types of families and despite that, the child’s welfare remains the court’s paramount consideration. The purpose of the legislation was to safeguard the welfare of children who were born via surrogacy rather than to restrict a parent’s eligibility to apply for a parental order.

Despite being presented with these arguments, the Court unfortunately could not agree. It was held that s54 of the HFEA was clear that one person could not apply for a parental order. The Court commented that to allow the application “would be to ignore what is, and always has been, a key feature of the scheme and scope of the legislation”.

Although unsuccessful, the matter highlights that the types of families in society are changing and that the law has unfortunately not changed alongside this.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Beverley Jones

Partner - Head of Family Department (Liverpool)

Heading the family team in Liverpool, I am a family and matrimonial expert who deals with all aspects of family law.