QR (Parental Order: Dispensing with Consent: Proportionality), Re

When considering a parental order, the court must scrutinise the statutory consent requirements with exceptional care. Where a surrogate or her spouse cannot be found, the court must take all reasonable steps to locate them, but those steps must also be proportionate. The surrogate’s privacy and Article 8 rights, including culturally specific risks arising from disclosure, may make further tracing unjustified.

The six-month time limit in section 54(3) of the Human Fertilisation and Embryology Act 2008 may be disapplied where the statutory analysis indicates that Parliament cannot have intended to exclude the application, particularly where exclusion would prejudice the child’s welfare. The child’s welfare throughout life is paramount when deciding whether to make a parental order.

EF and GH, an Indian married couple domiciled in the United Kingdom, applied under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order concerning QR, born in India through gestational surrogacy in May 2020.

The application was made in May 2023, substantially outside the six-month statutory period. The surrogate, XY, and her unnamed husband could not be located. The court had to determine whether the time limit could be disapplied, whether the applicants satisfied the domicile and other statutory criteria, and whether consent could be dispensed with in circumstances involving cultural sensitivities and risks to the surrogate’s privacy.

1. Parental order made. The court was satisfied that the criteria in section 54 of the Human Fertilisation and Embryology Act 2008 were met. The payments made in connection with the surrogacy were retrospectively authorised, having regard to their apparent lawfulness in India, the agreement and QR’s welfare.
2. Consent. Consent is central to the statutory scheme. Applying the three-stage approach in Re D and L (Surrogacy) [2012] EWHC 2631 Fam, the court considered the efforts made to locate the surrogate, the limited evidential significance of her earlier indications of consent, and QR’s welfare. All reasonable and proportionate steps had been taken. Further correspondence to a temporary address, social-media searches or newspaper advertisements could expose XY to serious stigma and compromise her privacy and family circumstances. XY was therefore incapable of being found and her consent was dispensed with.
3. The husband’s consent was also dispensed with. His identity and whereabouts were unknown, the surrogate was said to be estranged from him, and there was no reliable evidence that he had consented to the treatment or surrogacy process.
4. Time limit. The principles distilled from Re X (A child: Parental Order: Time Limit) [2014] EWHC 3135 Fam required consideration of the statutory subject matter, purpose, importance, relationship to the Act’s general object, consequences of non-compliance, Parliament’s intention and whether any departure from the statutory wording would be fatal, together with the assumption of a sensible result. The applicants’ delay resulted from ignorance, QR’s ill health, the pandemic and inadequate advice, rather than deliberate tarrying. Excluding the application would prejudice QR and could not have been Parliament’s intended result. Section 54(3) was disapplied.
5. Domicile and welfare. EF had abandoned his domicile of origin in India and acquired a domicile of choice in England, demonstrated by long-term residence, intention, indefinite leave to remain, property, employment, taxation and personal ties. QR’s welfare throughout life was paramount. A parental order would align her legal status with her established family and social reality.