Court makes ground breaking decision for surrogacy parents who miss the six month deadline for making a Parental Order

Up until the 3rd October 2014 it was widely believed that the statutory provisions meant that the court could not make a Parental Order after the expiration of 6 months from the child’s birth. This left many in a difficult predicament, particularly where they had been unaware of the provisions or where as a result of international surrogacy their route back to the UK had taken longer than expected.

In a landmark Judgement Sir James Munby, President of the Family Division has said that whilst the law states an application for a parental order must be made within 6 months of the child’s birth the court can accept late applications.

This case involved a surrogacy arrangement in India. The UK intended parents were unaware that they needed to apply for a parental order and did not return to the UK with the child until after the 6 month period had expired. Whilst in India the surrogate had relinquished all parental rights in the UK the surrogate and her husband were the legal parents. The problem did not come to light until the UK parents separated.

In a thought provoking Judgement Sir James Munby said:

 “Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor's legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor's office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child be barred by such mishap? Let it be assumed, though in truth, and with all respect to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others [2014] EWHC 595 (Fam), namely to provide for the speedy consensual regularisation of the legal parental status of a child's carers following a birth resulting from a surrogacy arrangement; that policy surely does not require section 54(3) to be read as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she referred to as delay over "a protracted period", but that is a different point.

I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that "the court may make an order … if … the [relevant] conditions are satisfied." I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.

I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period.”

Within both international and domestic surrogacy this case is not isolated and it has wide spread implications for many other children who are living with parents who are not legally recognised.

This case once again highlights why it is so important for legal advice to be obtained from the outset and as specialist surrogacy solicitors we are here to help. I for one am just happy that progress is being made, albeit slow, to ensure that children are not being left vulnerable.

If you wish to read the full judgement please see X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) (03 October 2014)