X (A Child) (Surrogacy: Time Limit)

A six-month time limit for applying for a parental order under section 54(3) of the Human Fertilisation and Embryology Act 2008 is not an absolute bar. Whether non-compliance invalidates proceedings depends on statutory construction, including the provision’s purpose, its relationship to the Act’s objects, and the consequences for those affected.

A parental order concerns a child’s lifelong identity, legal parentage and welfare. The court may therefore permit a late application where refusing it would cause serious and irremediable prejudice and no countervailing prejudice is shown. Article 8 also supports a Convention-compliant reading where necessary to make protected family and private-life rights practical and effective.

X was born in India through a surrogacy arrangement. Under Indian and English law, the surrogate parents were X’s legal parents. The commissioning parents had not applied for a parental order within six months because they were unaware of the requirement.

After proceedings concerning X’s living arrangements had begun, the case was transferred to the High Court and X was made a ward of court. The parties initially proceeded on the assumption that the expired period in section 54(3) of the Human Fertilisation and Embryology Act 2008 could not be extended. They later made a joint parental-order application, more than two years after X’s birth.

The issues were whether the court had jurisdiction despite the delay, whether X’s divided residence with separated commissioning parents met the statutory home requirement, and whether payments made in the overseas arrangement should be authorised.

1. Parental order made. The court held that the application could proceed despite being made after the period in section 54(3) of the Human Fertilisation and Embryology Act 2008. The six-month requirement did not make every late application permanently invalid.

2. Applying Howard v Bodington (1877) 2 PD 203 and Regina v Soneji and another [2005] UKHL 49, the question was whether Parliament could fairly be taken to have intended total invalidity. That required consideration of the statutory subject matter, purpose, importance of the requirement and the actual or possible consequences of non-compliance. A parental order has a transformative and lifelong effect on the child’s legal identity and family relationships. Treating even a trivial delay as fatal would be insensible and inconsistent with those objects.

3. The conclusion was independently supported by Article 8. Following the reasoning in A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam) and Pomiechowski v District Court of Legnica, Poland and another [2012] UKSC 20, the legislation could be read down where necessary to avoid impairing the essence of Convention rights. This case engaged both X’s family life and private life, including his identity.

4. Whether a late application should proceed remains fact-specific. The relevant delay was substantially explained by the shared, but mistaken, understanding that the statutory period was absolute. Refusal would cause immense and irremediable prejudice to X and the commissioning parents, while allowing the application caused no prejudice to any party.

5. The separated applicants remained husband and wife and had applied jointly. X’s home was with both of them although he divided his time between their separate homes. The payment to a mediator fell within the statutory prohibition, but retrospective authorisation was appropriate. The applicants acted in good faith, there was no exploitation or improper pressure on the surrogate mother, and X’s lifelong welfare strongly required a parental order. The wardship and prior orders were discharged.

High Court (Family Division): The matter was transferred from the Birmingham County Court after proceedings concerning X’s residence. X was made a ward of court while the legal-parentage issue was investigated. This was the first-instance determination of the parental-order application.