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Friday, October 10, 2014

High court put justice before statutory requirements in surrogacy case

Sir James Munby’s award of a parental order after a couple missed a deadline to apply is a sensible interpretation of parliament’s intentions

Judges will seek to apply the law faithfully as laid down by parliament, the deputy president of the supreme court told me this week. Lady Hale, who was responding to my “what if?” question about the Human Rights Act for a special anniversary edition of BBC Radio 4’s Law in Action to be broadcast next week, was saying no more than any judge would. But what happens when a judge comes across a statutory requirement that would lead to an injustice? Can it simply be ignored?

The issue came up in a case decided last week. It was brought by a couple who wanted a surrogate child, presumably because they were unable to have one of their own. We know little about them except that they began legal proceedings in Birmingham.

In 2011, the Birmingham couple made a surrogacy agreement with a married couple in India. The Indian surrogate mother conceived using eggs donated by a third party and sperm from the Birmingham father.

A child was born in December 2011, the surrogate parents confirmed that they wanted to give up their parental rights and responsibilities, and the Birmingham couple brought the child to the UK on a British passport last year. He is well cared for and much loved.

So far, so good. But what the Birmingham parents did not know is that they needed a parental order from the English courts. That would ensure that the child was treated as their own. More importantly, it would extinguish the legal rights and responsibilities of the Indian couple. Without such an order, the Indian mother and her husband would continue to be treated as the child’s parents. They had no wish to remain involved with the child but could not give up those responsibilities without a court order.

The Birmingham couple could have sought an adoption order but that would seem odd, given that one of them is the child’s biological father. A parental order under section 54 of the Human Fertilisation and Embryology Act 2008 was the obvious solution.

But there was a problem. Section 54(3) says that “the applicants must apply for the order during the period of six months beginning with the day on which the child is born”. It does not say what should happen if they do not. The Birmingham couple were at least a year out of time.

Not surprisingly, non-compliance with a legislative requirement is not a new problem. It came up as long ago as 1877 when Lord Penzance, sitting as Dean of Arches, drew a distinction between statutory requirements that were “mandatory” and those that were merely “directory”. If mandatory, failure to comply meant that the proceedings failed. If directory, you might be able get round them.

The distinction was well explained in 2005 by Lord Rodger, a law lord. He said:

If your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by 11 o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter’s birthday and, if he fails to turn up, he cannot discharge the duty later.

Giving judgment in the surrogacy case last week, Sir James Munby said the courts had to decide which of these categories a case fell into. Did parliament intend non-compliance with the six-month deadline to be fatal? Or did it intend a “sensible” result?

Munby, the president of the family division, pointed out that a parental order “has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences”. A court had to treat the welfare of the child as paramount throughout his life. Parliament could not have intended a delay of a few months – for which the child had no responsibility – as critical. So he made the parental order that the Birmingham parents had requested.

Munby was able to reach this conclusion using principles of statutory interpretation. But he said he could also have reached the same result by “reading down” the statute under the Human Rights Act. However, he stressed that every case was fact-specific.

Welcoming the decision, a family lawyer specialising in surrogacy work said Munby’s decision to grasp the nettle was long overdue. Pamela Collis, from the law firm known as HowardKennedyFsi, said such orders had been refused in the past. But she asked what would ​now happen to the children involved. “Their inheritance prospects and very being may be coloured by the fact that they have no legal parents,” Collis added.

So unless Munby’s judgment is overturned on appeal – which strikes me as highly unlikely – his next task will be to devise a procedure for historical cases that come to light. But that should not be too difficult. His was a wise judgment and its benefits should be widely shared.


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