F v S

I am giving this short ex tempore judgment concerning an application for a Child Arrangements Order in relation to A, who was born in January 2016 and is nine months of age. A was born in Oregon in the United States, following a legally recognised surrogacy arrangement entered into between the parties. The Applicant, F, is the biological father. The Respondent, S, is the gestational surrogate mother who gave birth to A following IVF with embryos created using gametes from the Applicant and an anonymous third party egg donor. This case was initially listed as a First Hearing Dispute Resolution Appointment, but because there had not been the safeguarding checks sent through by CAFCASS the matter was adjourned over to today.

S has been sent a copy of the application and been notified of today’s hearing. She filed a completed Acknowledgment of Service on 1^st September 2016, confirming she does not oppose the application and understands that part of the application involves the restrictions sought in relation to the exercise of any residual parental responsibility that she has. Even though she does not attend today, I am satisfied she is aware of today’s hearing and consents to the Order that is being sought.

The application is made in order to secure the Applicant’s status in relation to A under UK law, as he does not have parental responsibility.

In this jurisdiction the Respondent is A’s legal mother because she gave birth to A following the placing in her of an embryo (see s 33 Human Fertilisation and Embryology Act 2008).

The Applicant was unmarried at the date A was conceived, so as a result s 35 and 42 HFEA 2008 (which make the birth mother’s husband, wife or civil partner the other legal parents of a child conceived following the transfer of an embryo) do not apply in this situation. The Applicant is A’s father as a matter of common law, as he is her biological father and is her ‘father’ within the statutory definition for British nationality purposes (see s 50(9A) British Nationality Act 1981) which means A was born British by descent (s 2 British Nationality Act 1981) and is entitled to live permanently in the UK.

The Respondent has parental responsibility for A, but the Applicant does not (s 2 Children Act 1989). He is not able to acquire parental responsibility under s 2 Children Act 1989 because he is not on the birth certificate as required by s 4 (1) (a) CA 1989. Section 4(1)(A) CA 1989 sets out the enactments under which a birth must be registered to confer parental responsibility on an unmarried father. The relevant provisions concern a birth certificate which must be registered following the birth of a child in a part of the UK. The Applicant has been registered as A’s father on her Oregon birth certificate, but this was not issued under any of the enactments specified in s 4(1)(A). The effect of s 4(1)(a) 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. Even if the Applicant were to obtain a British consular birth certificate for A naming him as the father, this would be issued under the Registration of Overseas births and Deaths Regulation 2014 which are made under the British Nationality Act 1981, rather than any of the enactments listed under s 4(1) (A). The Applicant is not able to acquire parental responsibility by way of a Parental Responsibility Agreement under s 4(1)(b), as the parties have not entered into such an agreement.

It is also clear from the relevant authorities, set out in para. 6 of the Skeleton Argument, that it is not possible to apply for a Parental Order because the Applicant is a single Applicant (see Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73). Such an order, if it were available, would provide greater legal security and stability for A, as it would extinguish the parental status and parental responsibility of the Respondent and lead to the issue of a British birth certificate, which arguably better reflects the reality of A’s family situation. It would also bring the legal position in relation to her in line with that in the USA, where the surrogacy agreement is recognised. The Applicant has considered making an application to adopt but given that A was born through an international compensated surrogacy arrangement, such an application may create complications in respect of criminal restrictions in the Adoption and Children Act 2002 concerning payments (s 95 ACA 2002) and the bringing of a child into the UK for the purposes of adoption (s83 ACA 2002). In any event, the Applicant considers it inappropriate for him to adopt a child who is his own biological child.

The making of a Child Arrangements Order will ensure the Applicant has parental responsibility in relation to A (see s 12 CA 1989). Even though it has not caused any difficulties to date for the Applicant to be able to provide for A’s day to day care, it is clearly in A’s interests for the Applicant to be able to have parental responsibility, so that he is able to take all steps that are necessary to be able to meet the day to day welfare needs of A. It also provides clarity in relation to his legal status and position in relation to A. In considering whether to grant the application the court’s paramount consideration is A’s welfare, having regard to the matters set out in the welfare checklist at s 1(3) CA 1989.

Having considered the Applicant’s statement filed in support of his application, which sets out the arrangements he has made for A, I am entirely satisfied that A’s welfare needs will be met by this Court making a Child Arrangements Order providing that A lives with the Applicant, with the restrictions in relation to the exercise of parental responsibility by the Respondent who in reality plays no further part in the day to day care arrangements for A.