M v F & SM (Human Fertilisation and Embryology Act 2008)

Section 54 of the Human Fertilisation and Embryology Act 2008 requires a parental-order application to be made by two qualifying applicants. A single biological parent cannot obtain a parental order under the present wording, although that restriction has been declared incompatible with Convention rights. Pending legislative or remedial action, the court may use wardship, care and control, and ancillary orders to protect the child’s stability. Those orders do not confer legal parenthood. The court should respect the constitutional responsibility of Parliament and Government when deciding how to remedy the statutory incompatibility.

A was born following a gestational surrogacy arrangement using the gametes of M and F. M and F separated before the birth. Although SM carried the child and was his legal parent with F, SM surrendered care to M and supported the orders sought. F took no part in the child’s life or the proceedings.

M intended to apply for a parental order, but section 54 of the Human Fertilisation and Embryology Act 2008 permitted applications only by two people meeting specified relationship requirements. The court therefore considered the appropriate protective and welfare orders pending a possible change in the law.

1. Statutory position. Section 54 of the Human Fertilisation and Embryology Act 2008 requires an application to be made by two people and requires those applicants to fall within one of the specified relationships. On the present wording, M could not apply alone for a parental order.
2. Convention incompatibility and constitutional limits. In Re Z (A Child) (No.2) [2016] EWHC 1191 (Fam), the President had declared sections 54(1) and 54(2) incompatible with Articles 14 and 8 of the ECHR insofar as they prevented a single person from obtaining a parental order. The appropriate legislative response was for Parliament or Government to determine. The court should not prescribe the form of reform or express views about wider reform with potentially unforeseen consequences.
3. Interim protection. It was in A’s welfare interests for wardship to continue and for care and control to remain with M. Ancillary orders could reduce the need for repeated applications and protect the child while the law remained unchanged.
4. Effect of a parental order. A parental order has a transformative effect, creating the child’s legal relationship with the intended parent and affecting personal, emotional, psychological and social identity. Adoption was inappropriate on these facts, and wardship and care-and-control orders did not make M A’s legal parent.
5. The existing wardship and care-and-control arrangements were approved. The judgment was given in private subject to strict anonymity requirements.