Should Parental Orders be Granted for Children Over 18?
Date posted: 26 May 2022
The case of X v Z (Parental Order Adult) EWFC 26 was a landmark case that was heard in the High Court in March 2022. It was the first time a Court was asked to consider if a Parental Order should be made when the child in question born by a surrogacy arrangement is now an adult.
The child, referred to as Y, was born in 1998 in the USA to his surrogate mother Mrs Z. Mrs Z carried an embryo containing the gametes of Mr and Mrs X throughout her pregnancy. Y was born and upon issue of his US passport, he was brought to the UK where Mr and Mrs X reside.
Mr and Mrs X went through the legal process in the USA, were declared Y’s legal parents by the Superior Court of California and named on Y’s US birth certificate. Mr and Mrs X were not aware of a need to go through legal proceedings in the UK in addition to those in the USA at the time of Y’s birth.
In September 2021, after starting a surrogacy arrangement with another couple in the UK, Mrs Z (who had stayed in close contact) alerted Mr and Mrs X as to the necessity to make an application for a Parental Order in respects of Y, now aged 24.
The Court considering this matter looked at section 54 of the Human Fertilisation and Embryology Act 2008 which has 8 criteria to be met before a Parental Order can be made. Mr and Mrs X met all criteria, except for section 54.3, where an application for a Parental Order must be made within 6 months of the child’s birth.
The Court applied the case of Re X, which allowed for applications for a Parental Order to be made outside of the 6 month period as the Court would look at the facts of each matter and the reasons for the delay in making the application.
Arguments were made that the Human Fertilisation and Embryology Act 2008 did not state that a Parental Order cannot be made to a person who is over 18 years old, unlike section 47 and 49 of the Adoption and Children Act 2002 which prevents an application for adoption being made for a child over 18 and section 8 of the Children Act 1989 which states that an order should not be made for a child over 16, except in exceptional circumstances.
The Court ruled that a Parental Order should be made in favour of Mr and Mrs X. The Court stated that the legal status of Mr and Mrs X is the opposite of the parties’ expectations, Mr and Mrs X made the application as soon as they became aware of the need to make an application, the Human Fertilisation and Embryology Act 2008 does not exclude orders being made to adult children unlike the Adoption and Children Act 2002 and it will secure Y’s Article 8 rights to a family life.
Had Mr and Mrs X not been granted a Parental Order for Y, Mr and Mrs Z would have been considered the legal parents of Y.
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