Is it ever too late to apply for a parental order?

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If you pursue surrogacy, whether in the UK or abroad, it is vital that you obtain a parental order. This is the bespoke legal ‘solution’ for surrogacy arrangements – extinguishing the legal parental status of your surrogate (and her husband) and reassigning it fully and permanently to you. It results in the re-issue of your child’s birth certificate, ensuring that this important document records you as the parents.

Thankfully, information about the need for a parental order is now much more widely available than it was a decade ago. Parents who have undergone surrogacy are, on the whole, aware about the process and why it is a crucial part of the surrogacy journey.

However, information wasn’t always so readily available, as highlighted in the recent case of A and another v B and another [2016] EWFC 42 where the parents of three children (one 13 year old and two 12 year old twins) only applied for parental orders this year, well over a decade after the statutory time limit of six months.

Back in 2002 and 2004 when their children were born to an American surrogate mother, the parents say they were not told by anyone, either in the US or the UK, about the need for a parental order. It was only by chance that the mother read an article in a Sunday newspaper last February which highlighted the need for parental orders to be obtained following surrogacy arrangements.

The family immediately sought advice and were encouraged to make their parental order applications right away, even though they were significantly ‘out of time’. Despite this, the judge declared that, given the rest of the criteria (as set out in section 54 of the Human Fertilisation and Embryology Act 2008) had been met and that the making of the orders were undoubtedly in the best interests of the children, parental orders should be made.

This follows the initiative taken in the earlier cases of Re X [2014], where a parental order was made more than two years after the deadline, and Re D & G [2015], where parental orders were made some eight and five years after the deadline, respectively. It also serves to show that, where the rest of the criteria are met, the family court judges will put the child’s welfare (which consistently requires a parental order to be made) above the need to have complied with the six month deadline, if a genuine reason can be shown as to why it was missed.

The message to be taken away from this latest ‘parental order extension’ case is that it is not too late to make an application if you have missed the deadline. This is a crucial order to ensure that your child is legally secure, and that you are the parents for UK law purposes.

For more information about parental orders please contact Nicola Scott.

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