![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Family Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A & B (Parental Order Domicile), Re [2013] EWHC 426 (Fam) (14 February 2013) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2013/426.html Cite as: [2013] EWHC 426 (Fam) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
This judgment is being handed down in private on 14 February 2013.
It consists of 8 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
![]() ![]() ![]() ![]() ![]() ![]() |
||
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
![]() |
B e f o r e :
____________________
A & B |
Applicants |
|
- and - |
||
SA |
Respondent |
____________________
Ms Penny Logan (Cafcass Legal) as Advocate to the Court
Hearing date: 14 February 2013
____________________
Crown Copyright ©
Mrs Justice Theis DBE:
Background
Section 54 HFEA 2008 criteria
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c) the conditions in subsections (2) to (8) are satisfied.
The evidence establishes that C was carried by the Respondent, a gestational surrogate mother, following IVF treatment at a fertility clinic in India. The treatment involved the creation of embryos with eggs from an unknown third party egg donor and sperm from B. The DNA analysis confirms B's biological connection with C.
(a) husband and wife,
(b) civil partners of each other, or
(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
The applicants entered into a formally registered domestic partnership in California in 2008, a copy of which is in the papers. This automatically equates to a civil partnership under English law (Schedule 20 CPA 2004).
The application was received by the court on 6 August 2012 and issued on 14 September 2012. It is within 6 months of C's birth on 30 March 2012.
(a) the child's home must be with the applicants, and
(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.
C's home has been with the applicants at the time the application was made and at the time the order was made. He has been in the applicants full time care since birth.
A is 31 and B 40.
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.
The respondent carried C. She was unmarried at the time of C's conception and birth. She had been married, the evidence establishes that she divorced in 2009. I am satisfied that she has freely, with full understanding, agreed unconditionally to the making of the order and that consent has been given more than six weeks after C's birth. There is a notarised statement of consent signed by the respondent over 24 weeks after C's birth. This statement of consent is in the form similar to Form 101A, as required by PD5A Family Proceedings Rules 2010 (FPR 2010), and witnessed in accordance with the provisions in r 13.11 (4) FPR 2010. The evidence establishes that these documents have been translated and read out to the respondent in her first language. In addition, there is a signed acknowledgement of service to the parental order application confirming the respondent has given her consent to the application.
(a) the making of the order,
(b) any agreement required by subsection (6),
(c) the handing over of the child to the applicants, or
(d) the making of arrangements with a view to the making of the order,
unless authorised by the court.
Under the terms of the gestational Surrogacy Agreement the applicants made payments, via the clinic, to the respondent totaling 260,000 Indian Rupees (approximately £2,958). It is conceded that this payment is for more than expenses reasonably incurred. Therefore, consideration needs to be given as to whether the court should exercise its discretion to authorise that payment pursuant to section 54 (8) HFEA 2008. In exercising that discretion the court needs to take into account a number of matters, including whether the applicants have acted in good faith and without moral taint in their dealings with the surrogate mother; whether the applicants were party to any attempts to defraud the authorities (per Hedley J Re X and Y [2009] 1 FLR 733 at paragraph 21). The court also needs to be alert to public policy considerations to ensure that commercial surrogacy arrangements were not used to (a) circumvent childcare laws in this country, so as to result in the approval of arrangements in favour of people who would not have been approved as parents under any set of existing arrangements in this country; (b) not to be involved in anything that looked like the simple payment for effectively buying children overseas; (c) to ensure that sums of money that might look modest in themselves were not in fact of such substance that they overbore the will of a surrogate. Although as Hedley J noted in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam) the court's paramount consideration is the welfare of the child (pursuant to section 1 Adoption and Children Act 2002), therefore it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order, if otherwise welfare considerations support the order being made. Each case needs to be carefully considered on its own facts and circumstances.
Welfare