The most senior family law judge in England and Wales has ruled that two parents who missed the 6 month deadline to apply for a parental order were still entitled to that order. The head of the Family Division, Sir James Munby, in Friday’s landmark judgment ruled that it was almost nonsensical to prevent parents from applying for the orders. In the UK, intended parents who become parents through surrogacy must apply for a parental order within 6 months of birth. The order removes the parental right of the surrogate (and her husband if married). Only once that order is made are the intended parents recognised in the UK as the child(s) legal parents.
The judgment has been welcomed by many legal commentators as a common sense approach, leaving many confused why such a rigid period had been decided by parliament.
Sir James observed:
“Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor’s legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor’s office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child be barred by such mishap?”