Now I’m pretty happy with stretching the law to make it sensible. I’m a relaxed sort of lawyer and never cease to be amazed at the wonders a bit of discretionary magic can work. But I am ultimately still a lawyer at heart, however cuddly I look on the outside. And there comes a point where the law that Parliament has passed is so stupid that it would snap if you bent it into sensible shape.

And frankly, I feel like the game of judicial Twister that is the line of authorities about delayed parental order applications is going to give someone a serious strain before long. I just can’t watch the contortions any more.

It started out with the President interpreting the clearest of statutory phrases in a way that was (to us mere mortals) just inconsistent with the plain and obvious meaning of them – on the basis that Parliament really can’t have been that stupid (note to the President – Parliament really can have been that stupid. Look at LASPO). And so, “must apply for the order within six months of the birth of the child” didn’t really mean must at all. It meant “must apply for the order within six months of the birth of the child [unless the outcome would be really stupid]”. I mean, it wasn’t even under the fig leaf of HRA statutory interpretative elasticity. To be fair to the President, it was a tiny bit more of a thought through judgment than my summary above gives credit for – see Suesspicious Minds writing about it at the time : Conjurers and children’s birthday parties, which explains some of the legal acrobatics that The President performed in order to ensure the just outcome for the family (as it undoubtedly was).

Anyway, that case was Re X [2014] EWHC 3135 (Fam), and in that judgment the talk was of how stupid it would be if the commissioning parents of a child could not become her legal parents just because of some teensy technical thing like a day or two (Munby refused to believe Parliament could possibly have meant what they appear to have said before working out a brain-achingly clever work around to do with the failure of Parliament to spell out a consequence of missing the deadline). But hey, if a day or two is ok, what about a couple of years? Right? Re X purported to be a decision on its facts, but of course in setting out his rationale the President had already driven a pumpkin coach and horses with two lizard footmen through the statute. And its been a slippery twister mat ever since. Pretty quickly we were up to eight years. I mean, if two years is ok, why not eight? Ms Justice Russell’s fig leaf of choice was s1 ACA 2002 (Paramountcy of welfare throughout life). She said

  1. I am, as I must be, mindful of public policy issues. The importance of adhering to the legislation is the general rule and not one to be easily set aside and the need not to discourage commissioning parents through surrogacy from making applications for parental orders promptly. I must, as a matter of law and as set out above, weigh public policy concerns against the welfare of these particular children. I remind myself again that s1 of the ACA 2002 applies to parental order applications by virtue of the Human Fertilisation and of the Embryology (Parental Orders) Regulations 2010 (regulation 2 and Schedule 1) which provide “The paramount consideration of the court must be the child’s welfare, throughout his life”.

and characterises the decision as a balancing act between welfare and public policy (no, me neither). She concludes ultimately that

it would be manifestly unjust to give a delay that was innocently wrought, even a very long one such as this, greater weight than the welfare of these children. The children know who they are and have been brought up in that knowledge. The jurisprudence in this area is dominated by statute and by case law, some of which I have set out above, which gives emphasis to the child’s welfare throughout her life. I have decided to make parental orders as the orders which best meet the children’s needs and meet the justice of this case.

That was A & B (Children) (Surrogacy: Parental orders: time limits) [2015] EWHC 911 (Fam) last year.

Now, in A & Anor v C & Anor [2016] EWFC 42 (11 July 2016), we’ve reached the ever so slightly longer than six months milestone of 13 years. Mrs Justice Theis this time. In rather familiar terms she says :

Whilst, of course, mindful of the public policy consideration of adhering to the six month time period set within s 54 (3) and the need not to discourage commissioning parents in surrogacy arrangements from making applications for parental orders promptly, I have to weigh those considerations against the welfare of these particular children. Section 1 of the Adoption and Children Act 2002 applies to parental order applications by virtue of the Human Fertilisation and Embryology (parental orders) Regulation 2010 (regulation 2 and schedule 1) which provides “The paramount consideration of the court must be the child’s welfare, throughout his life”.

However, notwithstanding this emerging judicial mantra about public policy mindfulness, she goes on to say that she has acceded to a request for publication of the judgment because

the applicants … want to ensure that other people in the same position as them are encouraged to make applications to secure their legal relationship with children born through surrogacy arrangements. 

Whoosh (that was the pumpkin coach whizzing past again – with the lizards waving royally from the rear).

The moral argument for making these orders is unquestionable. In each instance the poor parents were utterly blameless and it was clearly “the right” decision from a welfare perspective. But whatever the judges say (whilst balancing with one leg behind their right ear and their judicial rear in the air), and whatever Parliament might have meant (in a hypothetical scenario where it had thought sufficiently hard about things before enacting a piece of legislation with no discretion or exceptions) it really doesn’t seem to me to in fact be what Parliament SAID in the Act. Re X may be persuasive, given that it is a judgment of The Boss, but it isn’t binding. And although it is a decision based on its facts, look where it’s got us. Parliament says an applicant must apply within six months of birth, and the courts are allowing applications thirteen years after birth.

As my mother said whenever Twister came out of the cupboard in moments of rainy day desperation : “It’ll end in tears”. She was right. Parliament should simply amend the stupid legislation, because just like stupid Twister it will all end with a foot in the squishy bits, and nobody comes out looking very dignified. In Twister as in court : Hard carpets make for sore bottoms, and hard cases make bad law.

At the time Re X seemed like a judicial oddity, but as it becomes more and more established, how long will it be before someone tries to transpose the approach to another statutory context, to sidestep the unheeded mandatory requirements laid down by Parliament?

I thank you for bearing with my metaphor, which I recognise in hindsight has itself become rather stretched and slightly ridiculous. Your reward is this piece of my own creation…


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