The circumstances surrounding an application for costs in a surrogacy dispute must be considered, a Family Court Judge has ruled.
The surrogacy arrangement had been made by a former same sex couple. The resulting child, a daughter, was born in the United States and now lives in New York with her biological father, ‘Y’.
His ex-partner, ‘Z’ now lives in London. He is keen to remain part of the girl’s life and so applied for a parental order in the UK courts, giving him the status of parent. This application failed because he was unable to satisfy the court that he was domiciled in the UK – i.e. permanently resident: one of the qualifying criteria cited in section 54 of the Human Fertilisation and Embryology Act.
The application for the parental order has originally been jointly made by both Z and Y but the latter later applied to withdraw it. Z also applied for a declaration that he held parental responsibility via a ‘step-parent responsibility agreement’ which was registered in this jurisdiction. Such agreements regulate the parental role to be played by step parents. But this was also opposed by Y, on the grounds that his former partner did not qualify for parental responsibility under English law, and therefore that status could not be given by the agreement. He also argued that the document itself was legally invalid.
Y’s solicitors invited Z to withdraw his application and he eventually agreed to do so, suggesting that a scheduled hearing on the issue be cancelled. Once he had agreed to a formal declaration that he did not have parental responsibility, Y then argued that Z should pay his legal costs in the matter.
Sitting in the High Court. Mrs Justice Theis noted that
“Whilst it is unusual to order costs in children cases, there is no presumption that there will be no order as to costs…it is the conduct of a party which is the main consideration as to whether or not a costs order should be made against that party; specifically whether there has been reprehensible behaviour or an unreasonable stance…”
In a brief hearing, she concluded that Z should pay only half the costs on these grounds. She stressed that the “factual and legal background to the registration of the parental responsibility agreements here was not straightforward.”
One of the reasons, she continued, behind Z’s decision to make the application had been the suggestion that X might be adopted by Y and his partner. He later discovered that a court in New York had in fact already approved adoption and he successfully applied for this order set aside on the grounds of fraud.
The judge explained:
“… the wider context of why he made the application can’t be ignored.”
“In those circumstances, having regard to all the circumstances of the case, I do not consider that Z’s conduct is such that it was reprehensible or that, in the circumstance of this case, he took an unreasonable stance in order for him to be responsible for all the costs relating to his application.”
You can read Y v Z & Others here.