The welfare of a child born to a same sex couple requires the revocation of an adoption order, a senior family law judge has declared.
The couple in question entered a civil partnership, and later converted this into a marriage. In a High Court ruling, Sir James Munby referred to them as ‘X’ and ‘Y’.
He noted:
“They had planned their family carefully. Each wanted to bear a child, using sperm provided by the same donor. Because X is somewhat older than Y, they decided that X should be the first…”
Following fertility treatment at a clinic operated by Barts Health NHS Trust, X gave birth to a child in 2010. Later Y underwent similar treatment and also gave birth.
Some time after the birth of their first child, however, they were “devastated” to discover that Y had not been legally registered as a parent of their first child.
Barts contacted Y to announce the news while she was pregnant with the couple’s second child.
She reported:
“They told me that I was not [the first child]’s legal parent … I rang [X], instantly, I was sobbing. I could not believe what I had been told. Fortunately [she] was very close to home. When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [the first child]’s mummy. This still remains very raw.”
X also remembered the conversation:
“[She] called me, [she] was sobbing and I could barely make out what she was saying.”
The couple were informed by their then solicitors that the best solution to the situation was for Y to adopt X, a suggestion described by Sir James as “utterly inappropriate”.
They proceeded with an adoption application in 2014, and an adoption order was duly granted, but the couple found the process intrusive, an invasion of their privacy and something that simply “felt wrong”.
Y was blunt about the emotional toll, telling the court:
“I feel like a piece of me has been taken away from me. I cannot even start to explain the pain it has brought to us all. We tried our hardest to do things properly and yet it’s like I no longer feel like I am [the first child’s] mummy. I was [the first child’s] mummy but now I am [the first child’s] adoptive mummy. We do not want [the first child] to be different to [the second child] … We feel disappointed and let down by Barts. We planned our family carefully. We want [the first child’s] parenthood to be what it should have been. Adoption is not what we wanted.”
Following fresh legal advice, Y applied for a declaration of parentage, under the Family Law Act 1986 and the Human Fertilisation and Embryology Act 2008, and a revocation of the adoption order. Sir James noted that:
“Y is wholeheartedly supportive of X’s application.”
The issue had originally risen when clinic staff were unable to trace a number of key forms relating to parentage signed by X and Y at the time of the birth of their first child, although it was clear that the forms had existed. In addition, His Lordship explained:
“…a search of the Barts records relating to X’s [fertility] treatment has revealed the existence of a document relating to a different patient’s treatment. So we know that the file relating to X’s treatment does not contain (as it should) a document which is known to have existed but does contain (as it should not) a wholly irrelevant document relating to another patient. The grave deficiencies in the clinic’s record-keeping are all too apparent.”
The available evidence made it indisputable, Sir James explained, that, despite the absence of documentary evidence that:
“..X gave the relevant consent, so did Y, and [so] X is entitled to the declaration she seeks.”
Meanwhile, the first child’s legal guardian was forthright in her recommendation that the misguided adoption order should be revoked, despite this being a very unusual step in the normal course of events.
Sir James was wholly supportive, declaring:
“[The first child]’s welfare demands that the adoption order be revoked. Common humanity to X and Y demands the same. They have suffered very greatly from failings in the ‘system’.”
Failing to grant Y the declaration of parentage and revoke the order would be an “affront to justice” he insisted.
In his ruling the President noted that the case was only the latest in a lengthy line of cases involving fertility clinics who have filed paperwork incorrectly or made other administrative errors.
He explained:
“I have now given final judgment in thirteen cases (Cases A, B, C, D, E, F, G, H, I, J, L, M and N). This is Case O. Case K, which was before me in July 2016, has been adjourned part heard for further argument. Six further cases (Cases P, Q, R, S, T and U) are currently awaiting final hearing. There is at least one other (Case V) pending. There are probably others, for the [Human Fertilisation and Embryology Authority] has identified no fewer than 90 cases where there are ‘anomalies’.”
X was represented in court by the barrister James Turner QC of 1 Kings Bench Walk.
