Procedural rules and time limits are an important part of the legal system. Without them cases would become unmanageable and access to justice would be considerably more expensive, slower and more difficult for ordinary people to understand.
Despite the need to address those concerns, it would be strange system if the rules were applied so strictly that outcomes were manifestly unfair, unjust or harmful to the interest of users or the wider public, particularly where children are involved.
It is not always easy to say that courts have struck the right balance but a recent family law case relating to a parental order has firmly demonstrated their ability to do so.
Background to Re X (A Child)
A Birmingham couple married in 1998 and in 2011 they entered into an India surrogacy agreement with surrogate parents in India. The agreement was lawful under Indian Law and was accepted by all parties.
Eggs were donated by a third party donor and fertilized with sperm from the Birmingham father. Consequently the surrogate mother conceived and gave birth to child, X, which was born in India in December 2011.
In July 2013 child X was brought into the UK using a British passport. Written documentation showed that the surrogate parents had agreed to give up their parental rights and responsibilities.
Parental Order Application
The Birmingham couple were totally unaware that they needed to apply for a parental order. Needless to say, neither did they know of the requirement under section 54 (3) of the Human Fertilisation and Embryology Act 2008 that they had a period of six months beginning with the day on which the child was born to apply for the parental order.
Without a parental order, the Birmingham couple did not have parental responsibility for X. Hence, the surrogate parents remained X’s legal parents and they could not transfer responsibility to the Birmingham couple despite their wish to do so.
Following previous cases, it was thought that it was too late to ask the court for a parental order. However, Elizabeth Issacs QC, representing X, argued that the court should be able to make a parental order notwithstanding the strict deadline.
Decision on the Parental Order in Re X (A Child)
The parental order application came before Sir James Munby, President of the family division for its final hearing. He noted that it had always hitherto been considered that the court had no power to make a parental order if the six month time limit had not been complied with.
However, Sir James Munby held that the previous assumption had not been correct and there was a power to make a parental order notwithstanding the expiry of the six month time limit.
He arrived at the conclusion after considering the cases of Howard v Bodington (1877) and Newbold and others v Coal Authority (2013). The main point he relied upon was raised by Sir Stanley Burnton in Newbold and others v Coal Authority (2013); this had the effect of enabling him to make a decision which Parliament would have intended to be sensible.
In such circumstances parents, including the Birmingham couple, can apply for a parental order to become legal parents of children even after six months of the birth of the child and are likely to be successful. Sir James Munsby scrutinised the strictness of the law and made clear that Parliament intended to deliver sensible results. This is good news for all concerned especially in other case of surrogate children living in the UK whose welfare is of the utmost importance.