Parental Orders and Surrogacy – bending the rules to benefit families
Date posted: 25 April 2016
A “Parental Order” is an order by the Court declaring that a child is to be treated as though born to the people applying for such an order.
s.54 of the Human Fertilisation and Embryology Act 2008 sets out clear and seemingly rigid rules on who can apply for a Parental Order and the circumstances in which the Court can make such an order.
Recent case law shows that the Courts are willing to apply the legislation openly in order to make a decision which is within the best interests of the child.
For example, s.54(2)(c) of the HFEA states that the applicants for a Parental Order must be “living together in an enduring family relationship”. In January 2016, Judge Theis decided that two applicants for a Parental Order were entitled to apply and were granted a Parental Order, despite the fact that they did not live together all of the time (DM and Another v SJ and others (Surrogacy: Parental Order) EWHC 270 (Fam)). The Court decided that because this couple spent as much time together as they could and clearly intended to live together full time as soon as they could, it did not matter that one of the applicants spent time away from the home in order to spend time with his children from a previous relationship.
We have also seen decisions from the Court which appear to relax the rule at s.54(3) of the Act which states that applications for Parental Orders need to be made within 6 months form the day that the child is born (Re X (A Child) (Surrogacy: Time Limit) EWHC 3135 (Fam),  1FLR 349).
We at Wilson Solicitors LLP are pleased to see the Courts interpreting the law liberally. It means that families can grow and reflect advances in modern society and the law is able to develop alongside scientific advances whilst meeting the crucial welfare needs of the children who are the subject of these proceedings.
You can read more about how to apply for a Parental Order here.
Comment prepared by Lucia Johnson, solicitor in our family team.