Alternatives to a Parental Order
In June 2026, Mr Justice Peel handed down judgment in PP & QQ and RR [2026] EWFC 172 https://www.bailii.org/ew/cases/EWFC/HCJ/2026/172.pdf which is an example of the options open to the Court to overcome problems in a Parental Order application where the evidence shows that the S54 criteria cannot be met after proceedings have commenced. The case concerns twins born via surrogacy in Sri Lanka, with anonymity directions preserved. The applications before the court were for a Parental Order; permission to withdraw that application when it emerged that neither of the applicants had provided gametes to conceive the children; a Child Arrangements Order (joint 'lives with'); and permission to apply for an Adoption Order.
Key Facts and Background
Non-identical twins were born on 26/11/2025 in Sri Lanka to surrogate RR, with embryos intended to be donor eggs fertilised with PP's sperm. However, DNA tests on 10/02/2026 and again in May 2026 confirmed PP is not the biological father, meaning neither Applicant is biologically related to the children thereby disqualifying the couple from applying for Parental Orders. 'Wish Fertility' initially confirmed on 13/01/2026 that the embryos were created using donor eggs and PP's sperm, but later stated that donor sperm may have been used. The Applicants said that they never consented to the use of donor sperm, and they produced a consent form dated 26/12/2024 that confirmed egg donation only. The surrogate executed a notarised affidavit on 05/02/2026 renouncing involvement and consenting to the Applicants' plans, and later signed A104 consent to adoption on 19/06/2026. The family arrived in England on 07/05/2026 after delays, and the twins have lived with the Applicants since birth with care led by QQ. British citizenship for the children was granted on 05/03/2026 following a section 3(1) British Nationality Act 1981 application.
'Wish Fertility' Letter and Discrepancies
On 17/06/2026 the clinic 'Wish Fertility' stated that both PP's semen and donor sperm were available and used in embryo creation, but they could not identify which was used. The judge noted apparent inconsistencies between this letter, the January 2026 confirmation using PP's sperm, the scan report, and the absence of any sperm-donation consent. The suggestion that mixed sperm sources were used was described as startling and, given both twins are unrelated to PP, implies embryos were likely from donor eggs and donor sperm.
Parental Order Application and Withdrawal
Section 54(1)(b) HFEA 2008 requires gametes of at least one applicant to be used, which is not met here. Under FPR 29.4, court permission of the Court is required to withdraw an application for a Parental Order, and leave to withdraw the Parental Order application was granted. The judge found the Applicants blameless and unable to continue the Parental Order process due to lack of genetic link.
Permission to Apply for Adoption
In the absence of the option of a Parental Order, permission was sought to commence adoption proceedings under section 42(6) ACA 2002 as the statutory cohabitation periods were not met. Applying guidance from M v Warwickshire County Council [2008] 1 FLR 1093 CA https://www.bailii.org/ew/cases/EWCA/Civ/2007/1084.html the court considered the issues of child welfare and real prospect of success and exercised a broad discretion in granting permission. The children have lived with the Applicants since birth; the surrogate consents; adoption would secure legal parentage and responsibility. Permission to apply for an Adoption Order was granted, with a requirement to give at least three months' notice to the local authority under section 44(3) ACA 2002.
Child Arrangements Order (Joint 'Lives With')
The Applicants applied to secure parental responsibility pending adoption, as only the surrogate otherwise holds it. Under section 10(5)(c)(iii) CA 1989, they had standing with the surrogate's informed written consent. A joint 'lives with' order was made, conferring parental responsibility alongside the surrogate, as in the children's best interests.