‘Everyone remains the child of someone’: a parental order for an adult

Abstract

In X v Z [2022] EWFC 26 a parental order was granted under section 54 Human Fertilisation and Embryology Act 2008 regarding a surrogacy arrangement undertaken in 1998, meaning that the ‘child’ involved was an adult at the time of both the application and the making of the order. This represented a novel issue for judicial consideration, and the judgment provides striking evidence of the extent to which the statutory conditions for parental orders ‘are being stretched to their limits, or simply cannot be applied’ (Joint Consultation Paper, 2019, para. 11.2). Mr and Mrs X undertook a surrogacy arrangement with Mrs Z through a Californian agency in 1998 and Y was born as result (para. 1). They are Y’s biological parents, since both of their gametes were used to create the embryo that was carried by Mrs Z (para. 10). The relevant pre-birth legal process was followed declaring Mr and Mrs X as Y’s legal parents under Californian law (para. 12) and a US passport was secured for Y, allowing the family to return to the UK when Y was a few days old (para. 13). The couple were entirely unaware of the requirement for a parental order to transfer legal parenthood in the UK and no application was made (para. 17). Quite remarkably, this position remained until September 2021, when Mrs X was contacted by Mrs Z who had recently been informed of the parental order process (para. 16). Mrs X sought legal advice and the application was made in December 2021, when Y was 23 years old. The apparent difficulty for the applicants is that section 54(3) provides: ‘the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born’. However, as is now well known, since Sir James Munby P’s judgment in Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam), [2015] 1 FLR 349 parental orders can be granted for applications made after six months, with a 13-year-old and 12-year-old twins in A v C [2016] EWFC 42, [2017] 2 FLR 101 being the oldest children where orders had been previously granted. The question for the court in X v Z was whether this reasoning was limited to parental order applications raised prior to the child’s eighteenth birthday, as is the case for adoption orders under section 49(4) Adoption and Children Act 2002. Ultimately, Theis J granted the parental order (para. 57), stating: ‘[t]he fact that Y is now an adult does not, in my judgment, preclude the court from making the order’ (para. 55). The judgment emphasises the factual background, observing that ‘Mr and Mrs Z’s