19th Dec 2023

Kara Swift Writes For DCN Perspectives Magazine, Winter Edition

Kara Swift Writes For DCN Perspectives Magazine, Winter Edition

 

We are pleased to see Senior Associate Kara Swift‘s article “The reality of modern families and how English family law is adapting” featured in the Donor Conception Network (DCN) Perspectives Magazine, Winter edition 2023.

The reality of modern families and how English family law is adapting

Modern families are diverse, they take many different shapes and operate with their own unique arrangements. This article will consider the approach of the Family Court to the unusual situation where applicants for a parental order for their donor conceived child are long term platonic friends. The cases show that when it comes to interpreting the Human Fertilisation and Embryology (HFE) Act 2008, the English Family Court operates with an overriding commitment to the welfare of the child to ensure that the legislative structure can be interpreted in a way that means even quite complex family situations involving donor conception can find legal support.

Under section s.54(2) of the HFE Act the applicants must be:

  1. a) husband and wife,
  2. b) civil partners of each other, or
  3. c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

Under section s.54(4) of the HFE Act at the time of the application and the making of the order:

  1. a) the child’s home must be with the applicants, and
  2. b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

Case 1: (published Jan 2023) Parental order granted to friends whose donor conceived child was born via surrogacy overseas

Mr W and Ms X were joint applicants for a parental order in England where, by the time of the judgement, they both lived. They had met in 1999/2000 whilst at University in Kiev, remained friends and describe developing a strong desire to have a child together even though their relationship was platonic. In 2019 they entered into a surrogacy agreement with a gestational surrogate (using donor eggs) Ms Y, through a surrogacy agency in Georgia (the country where they had both been born).

Following the child’s birth in early 2020 Mr W and Ms X remained in Georgia, but due to the pandemic the child’s birth certificate and application for a British passport were delayed. Mr W returned to England for work, but the child remained in Georgia with Ms X, supported by Mr W’s mother. Later in the year, Mr W returned to Georgia and then at the end of November, both Mr W and Ms X went back to England to prepare accommodation for the child’s arrival. An application for a parental order was initially made by Mr W as a single applicant on 13 August 2020 but was resubmitted as a joint application on 13 January 2021. The child’s passport was received in February 2021 and he arrived in England in April 2021, where he now lives with Mr W and Ms X.

This was possible because the Court adopted a wide and purposeful construction of S.54(4) and was satisfied that child had his home with the applicants when the application was issued. When one of the applicants was not physically with the child, they remained in regular contact with him and had responsibility for the care being provided for him.

The consideration of S.54(2)(c) was a question of fact. Parliamentary debate prior to the HFE Act confirmed that couples need not be in an intimate relationship and that Parliament intended the court to determine what constitutes an enduring family relationship.

The Court determined that Mr W and Ms X shared a commitment to each other, wished to bring the child up together within their relationship and the child had a home with them, remaining in their care.

Case 2: (published Nov 2022) Two male friends awarded parental order of donor conceived child

In this case the applicants for a parental order were two male friends (Mr X and Mr Y), who had known each other for 15 years. Initially the relationship was intimate but more recently it had settled into a relationship that was not intimate although still committed and loving.

Mr X was, and is still, married to his wife with whom he lived at the time of the application, and who was supportive of the decision to have a child but did not see herself as a parent.  Mr Y’s sister, Ms B, agreed to be a gestational surrogate and Mr X’s niece, Ms C, the egg donor.

The Court considered three characteristics that pointed to an ‘enduring family relationship’: that the applicants were ‘living as partners’, in a ‘family relationship’ and whether that relationship was ‘enduring’.

Looking at the reality of the situation, the applicants’ joint decision derived from the strength and nature of their relationship and the actions both before and since the child’s birth were very much a partnership. Even though they lived in separate households, the child easily moved between them. There was no requirement for their long term committed relationship to be exclusive. The nature of the support they offered one another and the co-parenting arrangements (the child calls them ‘Daddy’ and ‘Papa’) were indicative of them being a family unit. Finally, although they had not lived together during their relationship – and it was unconventional – it was a long-established, loving, committed and enduring relationship so the parental order was granted.

In conclusion, although most cases will not involve such complexity, English family law is changing and adapting to give recognition to – and to keep up with the reality of – diverse modern families. This is a welcome step forward for modern families, but it remains a complex area and the pace of change is such that specialist family law advice is always recommended.

As published in the DCN Perspectives Magazine, Winter edition 2023.

 

Kara is a Senior Associate at Family Law in Partnership. She advises on all aspects of private family law, supporting a wide range of married and unmarried clients following separation to resolve matters relating to their children, finances and property rights with diligence and care. Kara has a particular interest in the law relating to surrogacy. 

If you would like to discuss your family circumstances, please contact Kara Swift or any of the FLiP team below.