G v G

A parental order, like an adoption order, confers enduring legal status and should be set aside only in exceptional circumstances. Serious procedural failures and material non-disclosure require careful scrutiny, but do not justify revocation where the order would probably have been made after a proper process and revocation would undermine the child’s welfare.

The court must assess the likely effect of full disclosure on the applicants, the surrogate and the original decision, and the practical consequences of a rehearing. The surrogate’s consent under section 54 is a true veto. Applications for parental orders must comply strictly with the statutory scheme and the mandatory procedure in Part 13 of the Family Procedure Rules 2010.

D was born through a surrogacy arrangement and was handed to the commissioning parents, Mr and Mrs G, at birth. A county court purported to make a parental order at the first directions hearing, without a parental reporter’s report, an adequate examination of the statutory conditions or a final hearing. The parties later separated.

Mr G applied to set aside the parental order. He relied on the gravely defective procedure and alleged that Mrs G had concealed an intention to leave the marriage. The High Court exercised original jurisdiction to determine the application. It considered whether the alleged non-disclosure, the procedural failures and D’s welfare justified revoking an order which had altered the parties’ lifelong legal status.

1. Application refused. The court had original jurisdiction to entertain an application to revoke a parental order on grounds of deception and serious procedural defects. However, a parental order, like an adoption order, confers enduring status. Certainty and clarity therefore require a very high threshold before it is set aside.
2. The adoption authorities showed that revocation may be available for such exceptional matters as a failure of natural justice, fraud, or a fundamental mistake which invalidated consent. The circumstances here were materially different from Re M (Minors) (Adoption) [1991] 1 FLR 458 and Re K (Adoption and Wardship) [1997] 2 FLR 221. Mrs G’s silence about her affair and pessimism about the marriage did mislead Mr G, the surrogate and the court, but it did not reach that exceptional level.
3. The court had to assess the effect which a proper process and full disclosure would probably have had. It found that a parental order would have been made at a properly conducted final hearing. It was also more likely than not that the court would have made the order with full disclosure, if Mr G remained an applicant and the surrogate remained consenting, because D’s welfare favoured legal recognition of the commissioning parents as his lifelong parents.
4. Under section 54(6) of the Human Fertilisation & Embryology Act 2008, the surrogate’s consent was a true veto; there was no power to dispense with it. Revocation would therefore make a rehearing ineffective if she withheld consent. It would also leave Mrs G, who had cared for D throughout his life, without legal maternal status. Revocation would not promote D’s welfare and would instead create an artificial and damaging position.
5. The procedural defects were grave. The order should not have been made at the first directions hearing and the statutory procedure in Part 13 of the Family Procedure Rules 2010 was mandatory. Nevertheless, the use of the repealed statute in the drawn order could be corrected under the slip rule, and the defects did not warrant revocation where the substantive outcome would have been the same.
6. The case was remitted to the county court for the continuing proceedings under the Children Act 1989. The judge indicated that permission to appeal would be granted if sought, given the novelty and public importance of the issue.

The challenged parental order was made in the county court on 6 May 2011. The High Court did not treat the challenge as an appeal. It exercised original jurisdiction to determine the application to set aside that order and refused it.