A v B & Ors (Wardship; Parental Order; s10(9) Leave Application)

The inherent jurisdiction should be used only exceptionally where a child-related issue should not be resolved under the Children Act 1989 or another applicable statutory scheme. A parental order cannot be justified merely because it would serve the child’s welfare; the statutory criteria and the principles governing any Convention-compatible reading of the legislation must be addressed. In an application for leave under section 10(9), the court must consider the proposed application, the applicant’s connection with the child and the risk of disruption causing harm. Leave may be refused where the proposed application seeks to establish parental status despite materially different circumstances of conception and continued litigation risks harm to the child.

A and B were co-parents of X, aged three. X was born after an embryo created from B’s gametes and a donor egg was transferred to A. Y was later born through a separate surrogacy arrangement entered into by B and Mr and Mrs G, using another embryo created in 2019. B cared for Y full time and A had not participated in the arrangements resulting in Y’s birth.

A issued wardship proceedings, sought a parental order and applied under section 10(9) of the Children Act 1989 for leave to seek a child arrangements order giving her a shared-care and parental role in Y’s life. She subsequently accepted that she could withdraw the wardship and parental-order applications, but maintained the leave application. The issues were whether withdrawal should be permitted on a wider welfare basis and whether A’s proposed application had sufficient merit and posed an unacceptable risk of disruption.

1. Withdrawal applications. A was granted leave to withdraw the wardship and parental-order applications. The court considered that Y’s welfare required clarity that A’s parental-order application faced substantial obstacles independently of the surrogate’s lack of consent. On the undisputed facts, A had not shown how she could satisfy the key requirements in sections 54(1), 54(2) and 54(4)(a) of the Human Fertilisation and Embryology Act 2008. Nor had she demonstrated a Convention-compatible route to reading down those provisions under section 3 of the Human Rights Act 1998.
2. Inherent jurisdiction. Wardship was withdrawn because the statutory framework supplied a clear route for any application A could make, and no exceptional justification for continued reliance on the inherent jurisdiction had been established.
3. Section 10(9) leave. Leave was refused. A’s proposed shared-care application was, in substance, an attempt to secure recognition as Y’s mother and to obtain parental responsibility. Her connection with Y arose principally through being X’s parent and Y’s sibling’s parent. It did not reflect participation in Y’s conception or the surrogacy arrangement, and differed materially from the circumstances in which A and B became X’s parents.
4. The court had regard to the nature of the proposed application, A’s connection with Y and the risk that further litigation would disrupt Y’s life and place pressure on B as Y’s full-time carer. The prospects of a shared-care order were considered remote. Mediation and therapy were identified as more appropriate means of addressing the relationship between the children.
5. The refusal was based on the current circumstances. A future application was not precluded if circumstances materially changed, although the court gave no encouragement to renewed litigation.

First-instance decision in the High Court (Family Division). No appeal or earlier decision is stated in the judgment.