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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C, Re (Surrogacy: Consent) (Rev1) [2023] EWCA Civ 16 (16 January 2023) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html Cite as: [2023] 1 FCR 755, [2023] 2 FLR 109, [2023] EWCA Civ 16 |
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ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
Her Honour Judge Gordon-Saker
PE20P01804
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE THIRLWALL
and
LORD JUSTICE PETER JACKSON
____________________
Re C (Surrogacy: Consent) |
____________________
Aidan Vine KC and Mavis Amonoo-Acquah (instructed by Brethertons LLP) for
the Respondents
Hearing date : 3 November 2022
____________________
Crown Copyright ©
Lord Justice Peter Jackson:
Introduction
Background
Parental orders
(1) The child has been conceived artificially and is genetically related to one of the IPs (subsection 1)
(2) The IPs are married, in a civil partnership or living as partners in an enduring relationship (ss. 2).
(3) The IPs have applied within 6 months of the child's birth (ss. 3).
(4) The child is living with the IPs and at least one of them is domiciled in the UK (ss.4).
(5) The IPs are over 18 years old (ss.5).
(6) The surrogate has been paid no more than reasonable expenses, unless authorised by the court (ss.8).
"(6) The court must be satisfied that both —
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants […],
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order."
(1) Unless the court directs otherwise, the agreement of the other parent or the woman who carried the child to the making of a parental order may be given in the form referred to in Practice Direction 5A or a form to the like effect.
"I agree to a parental order being made in respect of ________________________ (my child), who is the child to whom the attached certified copy of the entry in the Register of Live Births relates. in favour of *[______________________ (the named prospective parents)]
If a parental order is made in respect of my child, I understand that I will no longer legally be treated as the parent and that my child will become part of the family of the applicant(s).
I understand that I may withdraw my agreement at any time until the court makes the parental order. If I do withdraw my agreement and want my child returned to me, I understand that I must notify the court that I have changed my mind and I must, at all times, act through the court and not approach the applicants directly.
I have not received any payment or reward from any person making arrangements for the parental order for my child.
*[I have taken legal advice] / *[I have not taken legal advice, but I have been advised to do so], about giving agreement to a parental order being made in respect of my child and the effect on my parental rights. *(delete as appropriate)
I agree unconditionally and with full understanding of what is involved, to the making of a parental order in respect of _____________________ (my child) in favour of *[_________________________(the applicant(s)]
Signed.................................
on................. day of .............. 20…
Witness statement
This form was signed by ...............................
On the........................................day of .......................20…
before me (print full name)............................................
Signed..........................
Office of witness*….………………………
Address of witness.………………………
* In England and Wales this form must be witnessed by an officer of the Children and Family Court Advisory and Support Service (Cafcass) or, where the child is ordinarily resident in Wales, by a Welsh family proceedings officer."
"(3) … Adoption orders create a presumption in law that the child is treated as if the biological child of the adopters. A parental order does not require that presumption to be made. Both orders are transformative, but a parental order proceeds on the assumption one of the applicants is the biological parent. That is one of the key criteria in s 54 HFEA. It doesn't change the child's lineage as an adoption order does; a parental order creates a legal parentage and removes the legal parentage of the birth family under the provisions of the HFEA 2008. Unlike adoption there is already a biological link with the applicants before the parental order application is made. Its purpose is to create legal parentage around an already concluded lineage connection.
(4) From the point of view of the child the orders are different. An adopted child is seen to have had a family created for it, whereas in a surrogacy arrangement the child's conception and birth has been commissioned by the parents, the child has a biological connection and the same identity as one of the parents. The latter arrangement is more congruent with a parental order than an adoption order."
"Let me say something about [the mother]'s position. Were she to have withheld her consent that would have been fatal to the application for by Section 54(6) it is a true veto and the court, unlike in adoption proceedings, has no dispensing power. That provision no doubt exists in conformity with the policy objective of the 2008 Act, that whilst gratuitous surrogacy is not unlawful, a surrogacy agreement is unenforceable."
This distinction is also followed through in section 54(7), which does not dispense with the consent of a mother who cannot be found or is incapable of giving agreement (as applies in an adoption case), but instead states that her agreement is not required.
"11. The original intention of the parties was that once the child was born they would cooperate in obtaining a parental order in favour of A and B. This would have had the effect of transferring legal parenthood from one couple to the other. However, surrogacy arrangements are unenforceable (s.1A Surrogacy Arrangements Act 1985) and parental orders are unique as they can only be made if the legal parents unconditionally agree: s.54(6) of the 2008 Act…
12. As originally framed, [counsel]'s argument proposed that as a matter of law, C and D, had the right "to change their minds and keep H". It is undoubtedly correct that a surrogate mother has the right to change her mind, but [counsel] wisely withdrew from the submission that such a mother also had the right to have her own way about where the child should live. She was also forced to concede that, while the six-week "cooling off" period protects a mother in relation to the important issue of consent to a parental order, it tells one nothing about what the best welfare arrangements for the child will be after birth…"
"No surrogacy arrangement is enforceable by or against any of the persons making it."
Section 27 of the 1990 Act (now section 33 of the 2008 Act) provided that:
"The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child."
The hearing before the judge in this case
"THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements' order, then that would obviously not be freely and unconditionally given consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in Mrs Chapman's report, so I do not think any of those cause me a difficulty in making the order. The only one that does is the consent because, although I understand there is an agreement that there will be contact, and I will be asked to make a child arrangements order, I cannot do that as a condition of making the parental order. I can only make the parental order if you freely consent and without conditions, so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit convoluted. You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say in response, as it were?
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a-- I would like to see C and so I am making the parental-- the consent on that I see C. If I-- I don't unconditionally give it because I am fearful that I won't have time to spend time with C and so that's why I can't quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn't lie and say that I do give my consent unconditionally. If that helps, your Honour."
"THE JUDGE: Well, it is very clear and I fully understand what you are saying. It does not help me-- and this is not a criticism of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents… I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…
She then explained that she would be content to hear an oral application for a child arrangements order, saying:
"So in terms of trying to reassure you, I am told that application would not be opposed. You could make it orally once I have concluded the making of a parental order but I cannot make the parental order unless you do consent to it… -- and if you do not consent, and again I am not saying this in any way to put pressure on you-- sometimes it may sound a bit like that but of course if you do not consent, you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I cannot adjudicate on that in advance.
So we are in a slightly difficult position… I think you consent to the concept that the applicants are, as it were, C's parents and that is recognised in law. I think the issue is one of concern about the way forward for contact, so-- but unless I have you unconditionally consenting I think we cannot move on from this limbo, so I am not-- try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs Chapman to see if she would like to add or say anything because I think apart from this difficulty she feels that the criteria are met but I just want to check with her.
THE JUDGE: … so, Ms A, we are in the position that as a matter of law and also considering C's welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just coming back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditional consent, your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditional consent.
THE JUDGE: And you are quite sure about that?
MS A: I don't see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly of course for C. I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order… Then in terms of a child arrangements' order, now that the parental order has been made, everybody agrees that it is… right for Ms A to have contact and under the Children Act you can make an application or I can treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from Cafcass because obviously I already have that information from Mrs Chapman, so I would be content to make a child arrangements' order and Ms Maxwell has said that the agreed way forward is the every six weeks-- I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and Christmas and-- so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In that case, I had better go back to Mrs Chapman in case from a welfare point of view she has any concerns. Mrs Chapman, from a welfare point of view for C would you be happy to endorse that order?
MRS CHAPMAN: Yes, I am happy to endorse that order.
THE JUDGE: So in that case that order will then follow, so we have a parental order and there will then be a child arrangements' order. I think then I hope very much that all of you can relax a little after what has been quite a difficult time and move forward. C is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, Mrs Chapman, is there anything else you want to add?
MRS CHAPMAN: No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know it can be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for C…
Okay, thank you all very much for attending. I know it has been difficult for everybody and I can see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.
THE JUDGE: Bye."
The appeal
1) The Court was wrong to make a parental order when it was clear that the Appellant's consent was being given conditional on the making of a child arrangements order and therefore was not given 'unconditionally' as required by s.54(6) HFEA 2008.
2) The Court was wrong to make a parental order when the consent provided by the Appellant was not provided 'freely' as required by s.54(6).
Analysis and Determination
"…there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements' order, then that would obviously not be freely and unconditionally given consent."
She was also alive to the importance of consent being freely given:
"…please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents…"
She equally recognised the danger of mixing up the issues:
"I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…"
"I don't unconditionally give it because I am fearful that I won't have time to spend time with C and so that's why I can't quite unconditionally consent… I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn't lie and say that I do give my consent unconditionally."
Faced with that statement, which she herself described as "very clear", the judge should have held to the line that it was inappropriate to pursue the matter further, at least during that hearing. She might have adjourned to give the parties a further opportunity to consider their positions, but it was not right to expect the Appellant to do that during the course of the hearing: "try to think about what I have just said for a minute". Even if it was reasonable to have explored the matter further, the judge should certainly have paused at the point where the Appellant appeared willing to relent, so that her consent could be taken in writing in a non-pressured and witnessed setting. Instead, and motivated by an understandable desire to help the parties to achieve what the Appellant herself had described as the "best for all of us", the judge immediately made the order. This was an attempt to square a circle that could not be squared in that way.
Lady Justice Thirlwall:
Lady Justice King: