G v G: Setting aside a parental order

Mr Justice Hedley
G v G [2012] EWHC 1979 (Fam), reported today on Bailii, is believed to be the first case in which an application was made to set aside a parental order.

The case involved a child, D, who was born on 28th January 2011 as a result of a surrogacy agreement between Mr. and Mrs G as the 'commissioning parents' and SK as the surrogate. D was handed over to Mr and Mrs G at birth. They, however, separated in September 2011, since when D has been in the primary care of Mrs G, with contact to Mr. G.

In November 2010 Mr and Mrs G had applied for a parental order under Section 54 of the Human Fertilisation and Embryology Act 2008. Despite considerable procedural irregularities (not least that the CAFCASS report had not by then been filed), a parental order was made on the 6th May 2011. There was no analysis of the requirements of Section 58(4), despite it appearing that at least some £10,000 had changed hands.

In November 2011 Mr G applied to have the parental order set aside, on two bases. Firstly, by reason of the numerous procedural defects and secondly, because he alleged that Mrs G had concealed from him her true intention to separate from him and to bring up D alone.

Giving judgment, Mr Justice Hedley found (at paragraph 32) that he was satisfied that Mrs G contemplated separation as a real possibility, perhaps even the most likely outcome. However, he did not accept that separation was a settled purpose between November 2010 and May 2011.

In the absence of any authorities on setting aside a parental order, Mr Justice Hedley looked at the analogous situation of setting aside an adoption order, "since like an adoption a parental order both confers lifelong status on the applicant and deprives those who until then had parental status of that status on a lifelong basis" (paragraph 33). He looked at Re B (Adoption: Jurisdiction to set aside) [1995] 2 FLR 1 and Re M (Minors) (Adoption) [1991] 1 FLR 458, and concluded that these "make it very plain that to achieve revocation is no small task."

As to whether an order would still have been made had the proper procedure been followed, Mr Justice Hedley concluded that it would, albeit after the (favourable) CAFCASS report was filed in June 2011 (paragraph 39).

As to whether the court would have made the order if it had known all that Mrs G knew, he found (at paragraph 40) that: "All were seeking that Mr. and Mrs G should have the status of lifelong parents, even if they were likely to separate", and thus it was more likely than not that an order would still have been made.

He then turned to the welfare considerations (at paragraph 41), and found that setting aside the order would if anything be detrimental to the welfare of the child.

He concluded (at paragraph 43) that he should refuse the application, for four principal reasons:
"First, given that the parental order is like an adoption order, an order conferring status, there should, so far as is possible, be certainty and clarity and therefore the court in considering such an application should be guided by the authorities on revoking adoption orders ... The bar is set very high. Secondly, although the court, Mr. G and SK, were undoubtedly misled by Mrs G in her silence ... that, in my judgment, comes nowhere near the circumstances that existed in Re M, which in any event was said should not be used as a precedent on its facts ... Thirdly, I do not believe that a revocation of this order is consistent with D's welfare, indeed if anything it conduces against it. This is in sharp contra-distinction to Re M. Mrs G is the only mother that he has known and his welfare will be undermined if she is deposed from that role. Fourthly, I am satisfied that the court would have reached the same decision as it did, even if all the matters revealed in the CAFCASS report had been considered properly by the judge, and I think it more likely than not that such an order would have been made had all the information been disclosed, provided, of course, SK's consent and Mr. G's application had continued."
He also concluded (at paragraph 44) that he should not set aside the order for the purposes of protecting the integrity of the court process, his reasons essentially being the third and fourth reasons above.

Finally, he indicated (at paragraph 48) that he would be disposed, if asked, to grant permission to appeal, "not because I have doubts about my judgment, but because, being wholly novel, this is an area which would, in my judgment, benefit from appellate consideration."