Edinburgh sheriff grants parental order recognising 72-year-old man and late wife as parents of three-year-old boy

About this case:

• Citation:
  [2024] SC EDIN 29
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Wendy A Sheehan

The first petitioner applied for an order in terms of section 54 of the Human Fertilisation and Embryology Act 2008 on 31 August 2023, three years after the birth of the child, A. At the date of the application, the second petitioner resided in a nursing home after suffering a severe stroke, however she died in December 2023.

The petition was heard by Sheriff Wendy Sheehan in Edinburgh Sheriff Court. Scott KC appeared for the first petitioner. A curatrix ad litem was appointed to report to the court, who recommended the granting of the order sought.

No alternative remedies

On 21 August 2020, A was born in the State of Oklahoma. The first petitioner’s gametes were used to bring about the creation of the embryo of the child along with the gametes of an American donor, with the surrogate who carried the child and her husband consenting to the making of the order. The State of Oklahoma issued a birth certificate on 2 October 2020 recording the petitioners as the child’s mother and father.

Due to Covid-19 travel restrictions, the first petitioner was unable to travel to the USA until July 2021, while the second petitioner’s health prevented her travel altogether. During the intervening period, A was cared for by a professional nanny, who agreed to act as A’s guardian in the event that the first petitioner died before A turned 18. A decision was made by the first petitioner not to apply for an order as a single parent, necessitating a guardianship order in respect of the second petitioner. This was granted by Dundee Sheriff Court in May 2023.

A was brought to Scotland by the first petitioner in August 2021. He visited the second petitioner in her nursing home three times a week for 21 months and recognised her as his mother. The first petitioner, while outwith the normal accepted range of parenthood, was described as active and energetic, and had enrolled A in nursery and researched boarding schools for his secondary education.

It was submitted that it was better for A that a parental order be granted than no order be made at all. There were no alternative remedies that would offer A the same transformative effect, and while a section 54 application was usually made up to six months after the birth of the child, the courts in Scotland and England had held that there was no statutory bar on making an order past that time.

Further factors identified as supporting the making of an order included the effect on his status and identify of not having a mother listed on his UK birth certificate, the importance of recognising the connection made between A and the second petitioner, and the legal rights claim he would have on her significant moveable estate.

Legality that matched reality

In her decision, Sheriff Sheehan said of the application of section 54: “Given the liberal and purposive approach to the construction of s.54(3), I do not consider that the petitioners’ failure to apply to the court for a parental order within six months should operate as a bar to their application. There are cogent reasons which account for the various delays in this application.”

She added: “A broad and flexible approach to interpretation of these proceedings should be adopted when this is necessary to secure the effective protection of the rights preserved by Article 8 ECHR and Article 8 UNCRC. That interpretation results in s.54(4) being read down so as to read ‘At the time of the application and the making of the order (a) the child’s home must be with the applicants (or in the case of an application where an applicant has died and the application is brought on his or her behalf by the surviving applicant, the child’s home must be with the surviving applicant’.”

Noting the possible issues that may arise in future, Sheriff Sheehan said: “Despite the reassuring terms of the curatrix ad litem’s reports, there are obvious welfare issues that arise. The fact that the first petitioner is researching the availability of a suitable boarding school place for A for his secondary education and has considered appointing a guardian in the event of his death during A’s childhood demonstrates that he understands these issues. These concerns must be balanced with the fact that A’s welfare would be gravely compromised by the court’s refusal to make an order.”

She concluded: “The lack of a parental order would result in a failure to recognise his genetic relationship with the first petitioner and would deny him the social and emotional benefits of recognition of his relationship with his parents with a legality that matched his day-to-day reality. A is well cared for and thriving in the care of the first petitioner. Overall, am satisfied that the orders sought will safeguard and promote his welfare and that it is better for him that I make a parental order than that none is made.”

The sheriff therefore granted the order as craved by the first petitioner.