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Unconditional consent

This is an Appeal about a decision to make a Parental Order in a surrogacy case.

Re C (Surrogacy : Consent) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html

In the original hearing, the woman who gave birth to the child had become more attached to the child than she had envisaged when she originally agreed to the surrogacy, and she was concerned that she would be shut out of the child’s life if a Parental Order was made. She was not legally represented at the hearing and it took place remotely.

The mother at the hearing had said that she would agree to the making of a Parental Order IF and only IF there was a Child Arrangements Order to specify that she would be able to spend time with the child.

Parental Orders are governed by the Human Fertilisation and Embryology Act 2008 and one of the requirements in making them is :-

Section 54(6), with which the present case is concerned, provides that:
“(6) The court must be satisfied that both —
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants […],
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.”

(There’s a s54(7) which allows the Court to waive parental consent only if the biological parent cannot be found, but that isn’t relevant for this case. )

Unlike say a Placement Order which the Court can make even if the parent objects if the appropriate legal test is met, there is no discretion for the Court on a Parental Order – if the criteria in s54(6) is not met, the Court cannot make the Parental Order.

The Court did make a Parental Order and a Child Arrangements Order that the biological mother should be able to spend time with the child. The mother later appealed. There is also ongoing private law litigation about contact.

The issue as to whether the consent has been given freely, with full understanding of what is involved and unconditionally is a matter for the Court, and it is understandable that the Court of Appeal wanted to look very carefully at the transcript of the hearing.

The hearing took place between 10.08 am and 10.30 am. We have been provided with a transcript and have also listened to the recording. It is necessary to set out some parts of the transcript to fairly understand the course of the hearing, with editing to maintain anonymity.
The effective part of the hearing started with an introduction from the Respondents’ counsel. She explained that the parties had agreed the terms of a child arrangements order, and although the court could not make such an order on its own initiative in the parental order proceedings, it could grant permission for an application to be made under the Children Act, and then make an order. However, she noted the requirements of section 54(6) and informed the judge that Ms A would be saying that her consent to a parental order was conditional on the making of a child arrangements order. Counsel nonetheless invited the court to consider making a parental order on the basis of Ms A giving her consent, with a child arrangements order being made “as a separate matter”.
After some consideration of the Children Act provisions and the proposed contact arrangements, the judge then addressed the Appellant:
“THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements’ order, then that would obviously not be freely and unconditionally given consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in Mrs Chapman’s report, so I do not think any of those cause me a difficulty in making the order. The only one that does is the consent because, although I understand there is an agreement that there will be contact, and I will be asked to make a child arrangements order, I cannot do that as a condition of making the parental order. I can only make the parental order if you freely consent and without conditions, so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit convoluted. You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say in response, as it were?
The Appellant then replied in these terms:
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a– I would like to see C and so I am making the parental– the consent on that I see C. If I– I don’t unconditionally give it because I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally. If that helps, your Honour.”
The judge responded at some length, starting in this way:

“THE JUDGE: Well, it is very clear and I fully understand what you are saying. It does not help me– and this is not a criticism of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents… I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…
She then explained that she would be content to hear an oral application for a child arrangements order, saying:
“So in terms of trying to reassure you, I am told that application would not be opposed. You could make it orally once I have concluded the making of a parental order but I cannot make the parental order unless you do consent to it… — and if you do not consent, and again I am not saying this in any way to put pressure on you– sometimes it may sound a bit like that but of course if you do not consent, you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I cannot adjudicate on that in advance.
So we are in a slightly difficult position… I think you consent to the concept that the applicants are, as it were, C’s parents and that is recognised in law. I think the issue is one of concern about the way forward for contact, so– but unless I have you unconditionally consenting I think we cannot move on from this limbo, so I am not– try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs Chapman to see if she would like to add or say anything because I think apart from this difficulty she feels that the criteria are met but I just want to check with her.
The judge then turned to Mrs Chapman, who confirmed that the Appellant was happy with the parenting C was receiving but that she did not want to consent because she wanted a legal right to spend time with C and was scared of having no contact.
The judge then returned to the Appellant for these important exchanges:
THE JUDGE: … so, Ms A, we are in the position that as a matter of law and also considering C’s welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just coming back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditional consent, your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditional consent.
THE JUDGE: And you are quite sure about that?
MS A: I don’t see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly of course for C. I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order… Then in terms of a child arrangements’ order, now that the parental order has been made, everybody agrees that it is… right for Ms A to have contact and under the Children Act you can make an application or I can treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from Cafcass because obviously I already have that information from Mrs Chapman, so I would be content to make a child arrangements’ order and Ms Maxwell has said that the agreed way forward is the every six weeks– I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and Christmas and– so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In that case, I had better go back to Mrs Chapman in case from a welfare point of view she has any concerns. Mrs Chapman, from a welfare point of view for C would you be happy to endorse that order?
MRS CHAPMAN: Yes, I am happy to endorse that order.
THE JUDGE: So in that case that order will then follow, so we have a parental order and there will then be a child arrangements’ order. I think then I hope very much that all of you can relax a little after what has been quite a difficult time and move forward. C is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, Mrs Chapman, is there anything else you want to add?
MRS CHAPMAN: No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know it can be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for C…
Okay, thank you all very much for attending. I know it has been difficult for everybody and I can see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.
THE JUDGE: Bye.”

My feeling when reading this exchange is that the mother had not freely and unconditionally consented at the outset, and that by the end of hearing she was saying that she did unconditionally consent although it is hard to see that she genuinely meant it.

The biological mother argued at appeal that she had not unconditionally consented, and that the division that the Court made of making the Parental Order with ‘unconditional consent’ on the basis that moments later an uncontested Child Arrangements Order would be made did not vitiate that lack of consent.

The carers were arguing that the Court was entitled to separate out the two orders and have them run sequentially in “sealed deliberations” and that therefore the biological mother’s consent was unconditional. They further argued that if the Court of Appeal was not with them on that, that s54(6) should be read as though the words “Such consent not to be unreasonably withheld” were added.

(This is apparently something which is currently being actively considered by the Law Commission who are looking at surrogacy)

The Court of Appeal set out their decision:-

There are three questions to be answered in this case. The first is whether, on a straight reading of s.54(6), the Appellant gave free and unconditional consent to the making of the parental order. The second is whether, if that is not the case, the Convention requires the court to assume and exercise a power to dispense with consent, and thereby to preserve the parental order. The last question is what order this court should make in respect of the underlying application for a parental order if the answer to each of the above questions is ‘No’.
The requirement that a person has “freely, and with full understanding of what is involved, agreed unconditionally to the making of the order” means exactly what it says. Although it may be forensically convenient to separate out the individual elements, what is required is a consent that is free, informed and unconditional. If that is achieved, it is immaterial whether the consent is given gladly or reluctantly.
Where there is any doubt about consent, it will be a matter for the court to judge, giving consideration to all the circumstances. One relevant factor is likely to be the means by which consent has been expressed. Because of the profound consequences of the underlying choice, it is normal for there to be a degree of formality. This is reflected in the preference in FPR 13(11) for consent to be in writing, using Form 101A and with the parental order reporter as witness. Even then, consent can be withdrawn at any stage before the order is made. This degree of formality is not mandatory but its absence should put the court on its guard to ensure that the proffered consent is valid. In the present case, the disputed consent was given orally in the face of the court and via CVP. In that unusual situation, a sharp eye had to be kept on the possibility that the court process might of itself be exerting pressure to the extent that any stated consent was devalued.

Further, although the hearing was conducted with complete courtesy, there were a number of other objective features to put the judge on her guard. In the first place this was a remote hearing in a sensitive case, with the Appellant being alone and unrepresented. The inevitable stress on any litigant was then inadvertently exacerbated by the way in which the Appellant found herself out on a limb, with her position on consent being represented as the only obstacle to an overall solution: “if you do not consent, you will all be in this limbo”. Also, an unrepresented litigant who is addressed by a judge at some length may be influenced by feelings of deference. Again, I recall that the judge was motivated by her assessment of what was in the best interests of C, the Respondents and indeed the Applicant herself. That welfare assessment was very probably sound but it had nothing to do with the question of consent. Had the resulting arrangements been satisfactory to all concerned, the problems with consent would no doubt have faded from memory, but the fact that the outcome has been so disappointing so far tends to show that the order was not built on solid foundations.
I would accept as a matter of principle that it is possible to conceive of a parental order and a child arrangements order coexisting. None of the reported cases has had that outcome, but they may not be representative of all problematic surrogacies. Some unproblematic surrogacies do not lead to parental orders at all, and contact with a surrogate will sometimes take place without any thought of a child arrangements order, even where a parental order has been made. However, in cases where there is less trust, there must still be a narrow path available to parties who genuinely agree that dual orders are the solution. While the statute does not envisage such orders, it does not expressly exclude them and to that extent I would accept Mr Vine’s submission that it might be possible for this outcome to be achieved. What the statute does, however, unequivocally exclude, in order to protect the surrogate, is twin orders in circumstances where one order is the price for the other. That is what occurred in this case.
For these reasons, the answer to the first question is that the Appellant’s consent was not merely reluctant but neither free nor unconditional. It was given in reliance on the promise of a child arrangements order and the Appellant’s statement that she gave it unconditionally did not reflect the reality. Furthermore, the eventual expression of consent was given under unwitting but palpable pressure. The parental order should not have been made.
Coming to the second question, I unhesitatingly reject the submission that section 54(6) can be read in such a way as to confer a dispensing power upon the court. The right of a surrogate not to provide consent is a pillar of the legislation and the assumption by the court of such a power would go far beyond permissible judicial interpretation of the kind found in A v P and in Re X. It is beyond doubt that the proposed setting aside of the parental order would clearly fall within the scope of the private and family life aspects of Article 8: Mennesson at paras. 87 and 96. However, the rights of the Respondents and of C are not violated by the setting aside of the order for want of consent on the part of the Appellant. The Strasbourg court has recognised a considerable margin of appreciation in this area and the potential availability of adoption to secure C’s legal relationships is also relevant, even if that route would be sub-optimal: Valdis Fjölnisdóttir v Iceland, Application no.71552/17, 18 August 2021. I would take this view even if this court were to make its own Article 8 assessment at the present date. I therefore conclude that the Convention does not require the parental order, made without valid consent, to be left in place.

The final question is what order should be made in respect of the underlying parental order application. The choice is between dismissing it or remitting it. I would look favourably on remitting if a parental order could possibly result from the parties being given another opportunity to take stock. I have noted that the judge might have adjourned the hearing for that purpose, and Ms Bazley has accepted that this option was open to her. But that was in the middle of 2021 and we are now in early 2023. In the meantime, relationships between the parties have deteriorated further, as the ongoing Children Act proceedings show. Even with the benefit of their current representation, the parties have been unable to devise a solution of their own. The Appellant’s position is that she will not consent to a parental order.
In these circumstances, I am driven to conclude that to remit the parental order application would perpetuate the process that led to the making of the original order. I would therefore allow the appeal and dismiss the application for a parental order. That C should be brought up by the Respondents and have contact with the Appellant was intended by all. It remains agreed by all that C will continue to be brought up by the Respondents, but the appropriate legal mechanism for that, and the question of contact with the Appellant are matters that are beyond the scope of this appeal.

I’m very glad that the Court of Appeal did not decide to read words into the statute which are not there – we’ve seen in recent years dilution of the statutory principle about only reasonable expenses being paid in surrogacy and about the time limits for making the application. If the Law Commission makes recommendations for changes that are approved by Parliament then so be it, but I personally don’t care for the Court amending statute to solve hard cases.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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