PETITIONS OF AB AND XY FOR ORDERS UNDER SECTION 54 OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008 [2023] ScotCS CSOH_46 (13 July 2023)

PETITIONS OF AB AND XY FOR ORDERS UNDER SECTION 54 OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008 [2023] ScotCS CSOH_46 (13 July 2023)

The statutory 6-month time limit in section 54(3) of the 2008 Act is not an absolute bar to granting a parental order; a purposive and welfare-focused interpretation is required. Separated applicants can still be considered as living in an enduring family relationship if they demonstrate an unambiguous intention to co-parent and maintain family life. The children's home can be with both applicants even if they do not cohabit, provided the factual matrix supports this. The welfare of the children is paramount and supports granting the orders.

Citation
[2023] ScotCS CSOH_46
Parties
Petitioner: AB; Petitioner: XY
Jurisdiction
Scotland
Judgment Date
13 July 2023
Procedural Posture
Petition for Parental Order Under Section 54 of the Human Fertilisation and Embryology Act 2008 / Final Judgment
Outcome
applications granted
Legal Topics
Parental Orders, Surrogacy, Statutory Interpretation, Child Welfare, Human Rights
Family Law Child Law Parental Orders Surrogacy Statutory Interpretation Child Welfare Human Rights

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Parties

AB

Petitioner

XY

Petitioner

Procedural Posture

Petition for Parental Order Under Section 54 of the Human Fertilisation and Embryology Act 2008 / Final Judgment

Legal Issues

  1. 1 Whether the court can grant a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 when the application is made after the statutory 6-month time limit.
  2. 2 Whether separated applicants can be considered as 'living as partners in an enduring family relationship' under section 54(2)(c).
  3. 3 Whether the requirement that the child's home is with the applicants under section 54(4)(a) is satisfied when the applicants are separated.

Ratio Decidendi

The statutory 6-month time limit in section 54(3) of the 2008 Act is not an absolute bar to granting a parental order; a purposive and welfare-focused interpretation is required. Separated applicants can still be considered as living in an enduring family relationship if they demonstrate an unambiguous intention to co-parent and maintain family life. The children's home can be with both applicants even if they do not cohabit, provided the factual matrix supports this. The welfare of the children is paramount and supports granting the orders.

Court Disposition

applications granted

Orders

  • Parental orders made in respect of G and H under section 54 of the Human Fertilisation and Embryology Act 2008.