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Council registrar wrongly informed woman to make adoption order for her child, High Court rules

A High Court judge has granted a declaration of parentage after finding a Cambridgeshire County Council Registrar wrongly told a parent to pursue an adoption order for her child who was conceived by her partner via in vitro fertilisation (IVF).

In Osborne & Anor v Cambridgeshire County Council [2022] EWHC 1982, Mr Justice MacDonald called the adoption order a "legal aberration". He found that there was no need for the order, as the same-sex couple who are both mothers to the boy, had gone through the relevant legal procedures for both to be registered as the mother on the child's birth certificate.

In addition, the judge considered an application for judicial review brought by the two parents against Cambridgeshire County Council over the Registrar's decision not to register the mother, Sarah Osborne, as C's parent. 

The child, C, was born in 2014 as a result of an IVF procedure. Ms Osborne's partner, Helen Arnold, carried the baby. The couple completed all the required forms for Ms Osborne to be considered "as a matter of fact and law, C's second female parent pursuant to Section 43 and 44 of the Human Fertilisation and Embryology Act 2008," the court found.

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However, when the couple went to register C's birth, Ms Osborne was told by the Registrar that she could not have her name on the birth certificate because she was not the father and there could only be one mother.

The Registrar then informed her that she would have to adopt C by completing a step-parent adoption. Accordingly, she applied for an adoption order which was later granted.

"There was no acknowledgement whatsoever of who I was, of our relationship, or my role; of us being a family," Ms Osborne said in a statement to the court.

She added: "We had spent so much time and effort discussing, planning, preparing for, and going through treatment; we had our precious son, we had made it a reality, and within those few minutes I felt all my pride and identity as a mother being stripped away from me; those few hostile, dismissive and inconsiderate comments, because of my gender, were devastating."

The parents only pursued legal action when Ms Osborne's name was featured on the Register of Births of their second child - who was born via the same procedure as C - without issue.

At the High Court, Cambridgeshire County Council and the Registrar General accepted that the failure by the council's Registrar to include the mother on the birth registration was wrong in law and not determinative of Ms Osborne's legal status in relation to the child, governed by Sections 43 and 44 of the Human Fertilisation and Embryology Act 2008.

It was further conceded by Cambridgeshire County Council that there was "no proper basis" for the Registrar to refuse to register Ms Osborne as the child's legal parent.

The judge concluded that: "I am entirely satisfied that it is appropriate in this case to grant a declaration of parentage in favour of Ms Osborne with respect to C pursuant to s.55A of the Family Law Act 1986, to make an order under the inherent jurisdiction of the High Court revoking the adoption order made in respect of C by the Family Court sitting at Ipswich on 3 November 2015, to grant permission to Ms Osborne and Ms Arnold to bring their claim for judicial review out of time and to quash the decision of the Registrar to register the birth without naming Ms Osborne as a parent, thereby enabling a fresh registration to take place."

The judge said he was "equally satisfied" that Ms Osborne and Ms Arnold's claim for judicial review must succeed.

Adam Carey

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