Z (A Child) (No 2)

A declaration of incompatibility may be made only where the court is independently satisfied that the declaration is soundly based in law and fact; consent or concession alone is insufficient. Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 were incompatible with Article 14 taken with Article 8 insofar as they prevented a single commissioning parent from obtaining a parental order solely because he was not part of a couple. The court was not required to decide whether the provisions were incompatible with Article 8 alone. It was also inappropriate to recommend a particular legislative remedy or invite ministerial use of section 10(2) of the Human Rights Act 1998.

The applicant father, the biological father of a child born through a lawful overseas surrogacy arrangement, had previously been refused a parental order because section 54 contemplated an application by two people. The court had held that section 54 could not be read down under section 3(1) of the Human Rights Act 1998. The father then sought a declaration of incompatibility under section 4(1). The child’s guardian supported the application, and the Secretary of State conceded that sections 54(1) and (2) were incompatible with Article 14 taken with Article 8 insofar as they excluded a single applicant. The central issues were whether the declaration was soundly based and whether the court should determine the Article 8-alone issue or advise on legislative remedies.

1. Declaration. A declaration of incompatibility could not be made merely by consent or concession. The court had to be independently satisfied that it was soundly based in law and fact. On the evidence and submissions, that requirement was met.
2. Scope of incompatibility. Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 were incompatible with the rights of the father and Z under Article 14 taken with Article 8, insofar as they prevented the father from obtaining a parental order solely because he was single rather than part of a couple. The conclusion proceeded on the narrow basis conceded by the Secretary of State.
3. Article 8 alone. There was no need to determine whether the provisions were incompatible with Article 8 considered alone. The court expressly left that issue open.
4. Further guidance and remedial action. The court declined to endorse draft amendments, recommend that the Secretary of State exercise the power under section 10(2) of the Human Rights Act 1998, or comment obiter on wider reform of section 54. Different legislative responses were possible, and the constitutional choice belonged to the legislature and Government.
5. The father’s application for a parental order was adjourned generally with liberty to restore. Future proceedings were reserved to the President of the Family Division.

First-instance decision. The judgment records an earlier decision in the same proceedings, In re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73, in which the court held that section 54 could not be read down to permit an application by one person.