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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Z, Re (Foreign Surrogacy: Allocation of Work : Guidance on Parental Order Reports) (Rev 1) [2015] EWFC 90 (16 November 2015) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2015/90.html Cite as: [2016] 2 FLR 803, [2015] EWFC 90, [2017] 4 WLR 5, [2016] Fam Law 314 |
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2015] EWFC 90 | ||
IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008 section 54
AND IN THE MATTER OF L & M (Twins born on 5th May 2014)
Strand, London, WC2A 2LL |
||
2015 |
B e f o r e :
____________________
XZ & ZZ | Applicants |
|
| - and - |
||
| Mrs Y and L & M (Children) (by their guardian |
1st Respondent2nd &3rd Respondents |
|
And |
||
| Cafcass Legal (acting as Advocate to the Court) |
____________________
Tracy Lakin (instructed by Barbara Carter) for the 2nd & 3rd
Respondents
(By their guardian Ms Jennie Dawe)
Penny Logan (of Cafcass Legal) acting as Advocate to the Court
The 1st
Respondent
did not attend and was not
represented
Hearing dates: 8th July
2015
____________________
Crown Copyright ©
The Honourable Ms Justice Russell DBE:
Introduction
respect
of twins (L and M) born to a gestational surrogate in India on the 5th May 2014. The Applicants had entered into a commercial agreement through a surrogate agency and clinic in India. To allude to words used previously by Mrs Justice Theis this is a case which again raises some of the difficult questions
regarding
the law of surrogacy, particularly in cases involving surrogacy arrangements made in another jurisdiction. The consequences of what the court has to decide are of fundamental importance to the parties and the children, not only because it concerns orders which determine who the legal parents of these young children are, but also because it determines the individual legal status of each child throughout their lives.
result
of international surrogacy. These difficulties are not novel and mirror some of those found in cases of inter-country adoption; they arose in cases under the 1990 HFEA. Following the decision of Mr Justice McFarlane (as he then was) in
Re
G (Surrogacy: Foreign Domicile) [2007] EWHC 2814; [2008] 1 FLR 1047, there should have been some consideration given at the first directions appointment for the application for parental orders to have been transferred to be heard by a High Court Judge. The Judges of the Family Division have developed an expertise in dealing with international surrogacy and this judgment will give some guidance as to the practice that should be followed by the Family Court in future. Paragraph [73] sets out the guidance on the allocation of surrogacy cases where the child is born overseas that has been approved by the President of the Family Division and is to be followed in all cases where a child is born abroad as the
result
of a surrogacy agreement and a parental order is sought. In addition the judgment contains
reference
to the advice given to parental order
reporters
by Cafcass and the
regulations
contained in the Family Procedure Rules (FPR) 2010 and
relevant
Practice Directions (PDs). Further guidance is given here at [86] concerning the need for parental order
reporters
to see the child with the applicants as part of their investigations when preparing their
report
concerning the child's welfare.
Re
G the judgment concluded [52 c)] that the issues raised in foreign surrogacy were of a similar standard and complexity to those raised in cases of inter-country adoption and so there were strong grounds for any parental order application that involves an international element being transferred to a nominated inter-country adoption county court or to the High Court at the first directions hearing. This case predated the 2008 HFEA and the formation of the Family Court. During the intervening period (before the Family Court came into being in 2014) the practice had evolved in London and in some family courts in England and Wales whereby all cases involving an international surrogacy agreement were transferred to be heard in the High Court at the outset of the proceedings. In this case the applications were not listed to be heard by a judge of the Family Division for a full eight months (the order itself transferred the case to the High Court but following the formation of the unified Family Court this was erroneous).
reads
that the court should, at the first appointment, "consider, in accordance with rule 29.17, whether the case needs to be transferred to another court and, if so, give appropriate direction" and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 (in force from 22 April 2014 on the formation of the Family Court) which provides that proceedings pursuant to s 54 of the HFEA 2008 in which the child's place of birth was outside of England and Wales should be heard by a Judge of the High Court, Family Division, supports this practice. The practice of allocation to a Judge of the Family Division is by no means uniform and it is intended that the guidance in this judgment should provide for uniformity of practice in future.
2015
with
reasons
to follow.
Summary of case and guidance
result
of in-vitro fertilisation following a commercial surrogacy agreement entered into in India between Y and the applicants who are British citizens domiciled in England. Y has no biological connection with the children and the Applicant and commissioning father is their biological father. The non-identical twins were born on 5th May 2014 and the application for parental orders was issued on 1st August 2014; however, the infants
remained,
effectively, stranded in India because of an inordinate delay in the issue of their travel documents and did not travel to the UK with the applicants until May
2015,
by which time they were just over a year old. The situation for them and for the commissioning parents was increasing parlous as time passed placing a significant and increasing financial and emotional burden on the family as well as denying the children the opportunity to develop the important initial bond that babies need.
resolution
of their difficulties. The case gave rise to many potentially complex legal issues that are not uncommon in applications for parental orders for children born abroad as the
result
of commercial surrogacy agreements which are discussed below, over and above the consideration of the provisions of the HFEA itself.
reporter;
specifically that, in order to complete the parental order
report,
the child must be seen with the Applicants by the
reporter
to enable her/him to assess the child's welfare satisfactorily, in all circumstances except if there is judged to be sufficient independent evidence.
Background
ZZ
(the commissioning mother) was born in 1976. They are both British born citizens of Indian/Sikh ethnicity. They married in 1999. The Applicants found that they were not able to have children despite intervention so decided to have a family by surrogacy. The 2nd Applicant's first statement in these proceedings set out the difficult background to their decisions to arrange for surrogate births for their children, she suffered from severe endometriosis and infertility and underwent nine unsuccessful attempts at IVF. In May 2010 she was diagnosed with multiple sclerosis, a chronic illness with an unclear and uncertain progression and prognosis.
respect
of K by Mr Justice Moor at Birmingham High Court District
Registry
on the 28th May 2012.
result
of the surrogacy would need a British passport to come to the UK to join his or her family the Applicants made some enquiries to find out what documents would be
required;
in addition on the 1st May 2014 they also went to the Indian Consulate in Birmingham to notify them of the expected birth and the surrogacy agreement as
required
to enable them to get an Indian medical visitor's visa as commissioning parents. L and M were born on the 5th May 2014. The Applicants travelled to India within a few days of their birth and met Y. They obtained legal advice in India confirming that the surrogacy agreement was legal under Indian law. Indian birth certificates were issued for the twins naming both Applicants as their parents.
returned
to the UK without the children as they had not been issued with British passports. At the end of May 2014 they
received
a package from the British High Commission
returning
their passport applications. The commissioning mother
returned
to India.
2015.
It
remains
far from clear why there was such a long delay for in the event once the case was allocated to be heard by a judge of the High Court and orders were made by me directed at the FCO and the High Commission in Delhi the twins were able to travel within a month. There was, it appears, to have been some doubt about the authenticity of the death certificate for the husband of Y (the 1st
respondent
and the gestational surrogate mother) in India raised by the personnel of the High Commission in India and those at the
relevant
passport office in the UK; later they raised questions about the identity of Y herself; by the time the passports were issued there were not any substantive
reasons
given for the earlier obstructions and for the considerable delay.
Chronology & Proceedings
regarded
as their father without parental
responsibility.
The twins had to
remain
in India being cared for by nannies, because the applicants had their home with their child in England; their employment and means of support was in England; and, as they were domiciled and
resident
in the UK, they could not
remain
in India with the twins for prolonged periods of time. I shall
return
to the situation
regarding
the long delay in issuing passports for the twins so they could travel to the UK with the commissioning parents below. On 20th August 2014 the first appointment took place in the absence of the parties before District Judge Maughan who made an order for the Applicants to file some documentary evidence of the surrogacy agreement and listed it for a first directions appointment on 25th September 2014 at 10.30 am before Her Honour Judge Hindley QC at the Family Court at Birmingham. At this stage the case should have been allocated to be heard by a Judge of the Family Division.
Respondent
(Y) signed an acknowledgement of service and confirmed her consent to parental orders being made. The Applicants filed a statement of service with the court on 10th September 2014. The following day, 11th September 2014, the district judge made a second order appointing Ms Jennie Dawe of Cafcass to be the parental order
reporter
for the twins.
Reporter.
The twins
remained
in India as they had not been granted travel documents by the High Commission in India. Ms Dawe, concerned for the welfare of the babies, applied for them to be joined as parties but the judge
refused
as she said she was concerned about the availability of legal aid for the children because they were not in the jurisdiction; no further
reason
was given. It is no longer an issue here but in the light of the expressed view of the parental order
reporter
and the provisions of FPR 2010, PD16A Part 4 Section 1 7.2 (a) would have applied along with (f) and (g).
"7.2
The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order –
(a) where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party;…
(f) where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separaterepresentation
of the child;
(g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court…
recitals
confirming the attendance of the Applicants in person and of Ms Dawe, as the Parental Order
Reporter
appointed. It was further
recorded
that the twins were the subject of applications pending in India and that the Court had been informed that it was expected that visas would be available by 9th October 2014 to enable them to enter the UK. The judge gave directions for the Applicants to file their evidence and for the parental order
reporter
to file her
report
by 2 pm on 25th November 2014. The case was ordered to be listed for final hearing or further directions at 10.00 am on 3rd December 2014 before Her Honour Judge Hindley QC at the Family Court in Birmingham.
remained
in India. The Applicants decided to take matters further and had a meeting with their MP on the 22nd of October 2014. The MP in turn
received
an email from a Ms
Zoe
Parker who told him there was no timescale in place for issuing the passports. On 7th November the Applicants
received
a phone call from the High Commission in Delhi to the effect that the passport office in Liverpool had advised that the time for the decision was "short".
report
as ordered. She prepared a
report
dated the 9th November 2014 in which (at paragraph 5) she confirmed her view that the children needed to be in the UK for her to be able to carry out and complete her welfare
report.
To try to progress matters she had contacted Cafcass Legal, who had provided her with the name of a Children's Policy Officer to assist in liaison between government departments.
return
to India to be with their twins, were contacted by the High Commission and told that they would have further communication in a week about the passport applications; as a
result
they delayed their
return
to India. On the 22nd November with no further indication of when the twins would be able to travel to the UK Ms Dawe emailed the court to say that in her view the delay in obtaining the passports was becoming a child protection issue. The twins had had to
remain
in India cared for by strangers as their parents had to travel to the UK to look after K, to work and to try to advance the passport applications.
result
of the Parental Order
Report
of the 22nd November. It seems that neither the Applicants nor Ms Dawe attended court and that the order was made in the absence of the parties; nothing to the contrary is
recorded
on the order. The judge made an order vacating the final hearing listed on 3rd December 2014 and listed the case for final hearing or further directions on 5th January
2015
before herself at the Family Court at Birmingham. The order included
recitals
in the following terms:
…upon the courtrecording
that, save for the completion of the
report
by the Parental Order
Reporting
Officer, which
requires
the children to be in the United Kingdom, the matter is
ready
to be listed for a final hearing.
And upon the courtrecording
that the delay in the British High Commission in Delhi, India, in issuing passports for the children L (born on 5th May 2014) and M (born 5th May 2014) is having a significant detrimental effect upon the children's welfare.
And upon the courtrequesting
that Cafcass contact the children's Policy Officer (Ms Hayley Griffiths) at the Foreign and Commonwealth Office as a matter of urgency to seek her assistance.
Report
dated 17th December
2015.
The application had not progressed and the information she was given amounted to no more than a complaint about miscommunication to the effect that her enquiry should have been sent to the Treasury Solicitor at the Passport Office and not to the Children's Policy Officer. On the 18th December 2014 Mr Wharton wrote to Ms Dawe to say that the British High Commission in Delhi were "still uncomfortable with the documentation" and to suggest a "clear" route to nationality under the British nationality Act.
Reporter
Ms Dawe and there is no
record
of their attendance). The judge made an order which
repeated
the
recitals
recording
the court's concern at the detrimental effect that the delay caused at the British High Commission was having on the welfare of the children. The case was
relisted
for final hearing or further directions on 5th February
2015
(time estimate 1 hour) before Her Honour Judge Thomas.
2015
the Applicants
received
a letter by email from Maxine Pritchard from Liverpool Passport Office (HMPO) which said that they have been unable to authenticate the documents provided in
respect
of the twin's applications. It
referred
specifically to the death certificate for Y's late husband; Ms Pritchard also advised the Applicants to
register
the children as British citizens under s3 (1) of the British Nationality Act 1981. On the same day the Applicants
received
an email from Jane Higham (HMPO) confirming that the issue was the death certificate. The next day the Applicants sent Ms Dawe a photograph showing the preparation of the surrogate's husband for cremation in keeping with his
religious
rites. The Applicants
received
emails from the Complaints
Resolution
Unit of HMPO on the 20th January
2015
which did not
resolve
the difficulties. The Applicants emailed Ms Higham at HMPO with details of an additional death certificate, which had been
registered
on-line, on 5th February
2015,
and on the 7th February they provided her with the name of the person who had issued the death certificate.
recorded
that except for the completion of a
report
by the Parental Order
Reporter
which
required
the children to be present in the jurisdiction the case was
ready
for final hearing. The
recitals
to the order set out the predicament of the children stranded in India and of the financial and practical effects of their delayed travel on Applicants whose home is in England and that the Court
recorded
"that the delay in issuing passports for the children…is having a significant detrimental effect upon their welfare." The court order also
recorded
that The British High Commission in Delhi had
required
a verified death certificate in
respect
of the
Respondent's
husband and that this had been provided and that no further
response
had been
received
from the Passport Office in Liverpool to the Applicants' enquiry about passports for the children after a letter dated the 8th January
2015.
The judge joined the children as parties. The case was again listed for a final hearing, or further directions, this time on the 3rd March
2015.
2015
when the solicitor for the children spoke to Ms Higham, at her office in Liverpool, it seemed to be clear during that conversation that the issue causing the delay was the death certificate of Y's husband. The children's solicitor followed this conversation up by a letter dated 13th February
2015;
a letter was also sent to the British High Commission. On the 15th February
2015
the Applicants were informed by British High Commission in Delhi that they wanted the commissioning father personally to hand in the death certificate.
2015
the commissioning father flew to India to be with the twins, care for them and to try to sort out their passports. The Applicants sent a further letter to HMPO
regarding
the death certificate, followed by a copy of the death certificate on the 19th February
2015,
which was also sent to the High Commission in Delhi. On the 20th February Mr Sunandan (who had been dealing with the application at the High Commission) informed the commissioning father that his personal attendance with the death certificate at the High Commission was no longer necessary, but on the 25th February the children's solicitor became aware that the High Commission in Delhi was
requesting
to see the commissioning father for
reasons
that were not clear. As a
result
of her contact with Ms Higham at Liverpool HMPO the children's solicitor wrote to the court and
requested
an adjournment as it seemed that the issues over the passports would be
resolved
within weeks. The commissioning mother left England for India, with K, on the 1st March
2015
to be there to bring the twins home. The commissioning father had moved to the village of S in the Punjab.
reached
crisis point. In February
2015,
the commissioning father had travelled to India to care for the children as the nannies employed by the applicants were no longer available and it was not a financially viable situation for the family to continue with the expenses that arose as a
result
of the arrangement that had been put in place for what was supposed to be a temporary solution to the twins
remaining
in India. The Applicants
relied
on the income of the commissioning father and being in India compromised his ability to earn the money necessary to support the family. He had no choice; had he not
returned
to India it is possible that the children would have had to have been placed in a charitable institution or orphanage. In addition to the concern of the Applicants and Ms Dawe the twins were forming attachments with the nannies because of the amount of time they had been caring for L and M. They had all been confined in their
rented
apartment because of a perceived fear on the part of the Applicants of the children being abducted. The commissioning mother was unable to stay in India for more than a few weeks at a time as her medication for multiple sclerosis (which is supplied by her healthcare company) was not available for her in India.
2015.
They were told that there was now concern over the identity of the surrogate. The following day on the 3rd March
2015
Her Honour Judge Thomas made an order adjourning the final hearing in the absence of any of the parties with
reference
to the letter of the 27th February from the children's guardian Barbara Carter [sic], and
recording
that the Applicants were in India and that "save for completion of the
report
by the Parental Order
Reporting
Officer, which
requires
the children to be in England and Wales, the matter is
ready
for a final hearing." Once again the judge expressed the court's concern that "the delay in issuing the passports for the children…is having a significant detrimental effect upon their welfare." The case was
re-listed
for final hearing or further directions on 30th March
2015
before Her Honour Judge Thomas, and Cafcass and the children's guardian were given permission to disclose this order as is
required
in any attempt to
resolve
the issue in
respect
of the children's passports.
2015
the children's solicitor spoke to Mark Edmundson at Liverpool HMPO and was told that the passport office was still waiting for verification of the death certificate and for a transcript of the interview with the Applicants; Mr Edmundson said he was hoping for a decision the following day. The following day the children's solicitor was told that Ms Dawe understood that the application for passports was likely to be
refused
as it was alleged that the documents
relating
to Y were fraudulent. This information was, indeed, followed up by a telephone call the next day 12th March
2015
from Jonathan Wharton (the Head of the Passport and Nationality Policy Team at the High Commission) to the children's solicitor in which he said that HMPO were still not satisfied with the documentation
relating
to the death and that there was now a further issue as to the identity of Y herself.
response
to a letter from the children's solicitor dated 19th March
2015
Mr Wharton suggested, by email, that the solution was for the Applicants to adopt the children. This
response
would seem to betray considerable ignorance of both adoption and surrogacy law and policy. As a
result
of these communications the children's solicitor wrote to the court to confirm that the passport applications
remained
an outstanding issue.
2015
Her Honour Judge Thomas again made an order in
response
to correspondence in the absence of the parties. In her order the judge
referred
to a letter from Barbara Carter, the children's guardian [sic], dated the 24th March and
recorded
the commissioning father was in India "attempting to sort out the necessary procedures that are
required
to secure British passports for the children" and, again,
recording
the detrimental effect of the delay on the children's welfare. The applications were adjourned until 8th April
2015
before Her Honour Judge Thomas.
2015
the commissioning mother alone attended the hearing before Her Honour Judge Thomas, as did the children's solicitor and the Parental Order
Reporter,
Ms Dawe. There was an order made which transferred the proceedings to the High Court of Justice and for the applications to be listed for directions before me at the Royal Courts of Justice on 23rd April
2015.
The judge had the following
recitals
placed on the order; that the "British High Commission in India has raised issues in
relation
to the verification of the surrogate mother's husband's death and has now raised concerns about the verification of the identity of the surrogate mother herself"; and the "Applicants have informed the Court that they have supplied all possible documents to assist in the verification of the identity of the surrogate mother herself."
2015
the Applicants' immigration solicitor submitted applications to
register
the children as British citizens with the Home Office. The family was in an increasingly difficult position. The conditions at the new property were not ideal; there was no air conditioning, intermittent power and communications and the commissioning father was left on his own caring for two very young children with no support. By April, when the hot weather was set in they were living in
reduced
circumstances in very high temperatures. The commissioning mother was very concerned about the
real
strain her husband was under as a sole carer and there
remained
a fear for them both that if the situation was not
resolved
the children would have to be placed in a charitable institution or orphanage.
2015
and again on 18th May
2015.
On 23rd April I was invited on behalf of the applicants to make parental orders without the children being present in the jurisdiction and without a parental order
report
having been prepared. Ms Dawe said through her counsel that, as a last
resort,
she was prepared to give oral evidence in support of parental orders based on their care of their daughter K and the investigations she had been able to carry out up to that point. I could not accede to their
request
to deal with the application without the children being seen by Ms Dawe and, on the basis of the positions of the parties as put on that date, it seemed that in part at least that the parental orders were being sought to try to circumvent the difficulties in bringing the children to the UK as British Citizens and on British passports. Ms Dawe considered the family's circumstances seemed exceptional and both she and the Applicants felt that no other solution was available. In those circumstances, Cafcass Legal was invited to act as advocate to the Court, given the implications of such a course of action and questions of public policy which arose. Cafcass Legal were contacted by telephone that day and, I am told, acceded willingly to the
request.
2015
I made the following order with
recitals:
Recitals
A. The 1st Applicantremains
in India with the children:
B. The FirstRespondent
has been notified of this hearing.
C. The Court invited Cafcass Legal to act as an advocate to the Court in these proceedings andreceived
confirmation from Cafcass Legal that they accepted the appointment.
D. The Court confirmed that the childrenrequire
separate
representation
because of the complexity of the legal issues that have arisen in
respect
of the application and their future and life-long welfare.
E. The Court further confirmed that it is necessary separately to appoint an advocate to the court independent of all of the parties to assist the court in considering issues of law and public policy andregarding
the practice of parental order
reporters
in preparing parental order
reports.
F. The Courtrespectfully
![]()
request
the Foreign and Commonwealth Office (FCO) and the High Commissioner of the British High Commission in Delhi with
reference
to Jonathan Wharton at the FCO and to Sunandan Sinha, the officers dealing with the citizenship and passport applications in
respect
of [the children] in Delhi to confirm in writing and by
reference
to any evidence
relied
upon the
reasons
why the citizenship and passport applications made to the British High Commission in Delhi and to the FCO office have not been granted. The Court
requires
that this information to be sent to Barbara Carter, Solicitor for the Children on or before 12 noon on 11 May
2015.
IT IS ORDERED THAT:
1. This application for a parental order isreserved
to Ms Justice Russell and be set down for further directions hearing on 18th May
2015
at 10 am with a time estimate of 1 hour; and final hearing on 8th July
2015
with a time estimate of 1 day.
2. The Applicants are directed to inform the 1stRespondent
of the dates of the hearings on the 18th May
2015
and the 8th July
2015
and to inform her that a parental order may be made on that date.
3. Paragraphs 1 and 2 of the order of Her Honour Judge Thomas dated 5 February2015
are discharged.
4. [The children] are joined as parties to the proceedings and Ms Jenny Dawe is appointed as their Children's Guardian. For the avoidance of doubt, Barbara Carter has been appointed as the children's solicitor.
5. Cafcass Legal is appointed to act as advocate to the Court. The papers in the applications are to be sent by the children's solicitor to Penny Logan at Cafcass Legal immediately.
6. The children's solicitor is directed to takeresponsibility
for ensuring that this order is provided to the High Commissioner at the British High Commission in Delhi with
reference
to Sunandan Sinha and the Foreign and Commonwealth Office in London and/or Sheffield with
reference
to Jonathan Wharton and the application for passports and citizenship for these children.
7. The legalrepresentatives
are directed to produce a joint document setting out the matters in this case that are agreed and the matters that are in dispute. This document is to be filed and served not later than 4 pm on 13 May
2015.
![]()
Permission was granted to apply to me any further directions.
2015
and the order was served on them. On the 8th May
2015
the children's solicitor
received
a
response
from Mr Wharton again suggesting adoption as a solution; this
response
was, seemingly, out of step with the decisions being made elsewhere for on the 13th May the Applicants were informed that the Home Office had approved the application and that the children had been
registered
as British citizens.
return
to events in chronological order: on the 23rd April
2015
the court
requested
the Foreign and Commonwealth Office (naming Consular Officer Sunandan Sinha in the order) to confirm in writing with
reference
to any evidence
relied
on by the FCO the
reasons
why the citizenship and passport applications made for the children had not been granted; there was no formal
refusal
letter containing written
reasons
for
refusal
sent to the applicants. It is contrary to the Home Office Nationality Instruction, Chapter 4: Automatic Acquisition by Birth: Outside the United Kingdom
requiring
case officers to write to applicants giving
reasons
for any
refusal
to accept claimed citizenship or to issue a British passport. Although Mr Wharton had made oral
reference
about the Passport Office's concerns at documentary evidence presented for the applications for the twins' passports to the children's solicitor and the commissioning mother neither he nor any other official had provided the written
refusal
which would, in turn, provide the written basis on which the Applicants could apply for judicial
review
of the
refusal
or, indeed, to
respond
to any official 'concerns.'
result
of this court's intervention that the first formal explanation for the delay/
refusal
was forthcoming in the form of the letter from Mr Wharton, as Head of Passport Nationality Policy which
referred
to some, but not all of the evidence, presented by the Applicants to the effect that the FCO was satisfied that the commissioning father is the genetic father of the children but was unable to confirm the identity of the surrogate mother or her marital status although it was accepted that Y's late husband's
re-issued
death certificate is issued by the correct authority, it was said that the circumstances and personal statement could not be verified; no mention was made of the further evidence provided or offered by the Applicants. In fact they had offered to arrange for Y to come to be interviewed by the consular officer. I accept the submission of Ms Cronin, counsel for the Applicants, that this omission was significant as Mr Wharton had said that the consular officer had concerns about how the surrogate was approached to undertake the surrogacy and gone on to dispute her identity even though the Applicants had provided her official identity card with complete biometric markers and photograph, and secondly, as the facts in the death certificate
recording
the date of the death of Y's late husband had been verified in notarised documents signed by local assembly members in the
relevant
Ward, including by Mr H J A, a legislator who knew the deceased personally.
"For the purposes of this Act a child's father is—
(a) the husband, at the time of the child's birth, of the woman who gives birth to the child,
or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or
(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or
(c) where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed
requirements
as to proof of paternity..."
- all this would have
required
was consideration of whether, at the time of the IVF implantation, Y was married (and if so if her husband consented to the implantation). The consideration should have been based on the balance of probability and not on certainty as Mr Wharton's email to the Children's Solicitor implies. Mr Wharton's explicit implication is evinced in his email which
refers
to his inability 'to confirm categorically which details are correct' and that the 'information does not provide the certainty we need'.
request
for written
reasons
from the FCO contained on the face of the order of the 27th April
2015
prompted the Home Office Nationality Section to take charge of the nationality application, to ensure that the consulate transferred all the original documents provided by the Applicants and to give priority to the consideration whether the Secretary of State would allow the children to be
registered
as British citizens under the broad discretion in BNA section 3(1) above. Ms Cronin has helpfully
referred
the court to the "Home Office Nationality Instructions" Chapter 9; entitled "
Registration
of Minors at Discretion" it
reads
"9.10.3 Where a man is neither the biological father of the child nor within the
relevant
definition of "father" in the BNA 1981 ….We should normally
register
if: a. we have the consent of all those with parental
responsibility
…. including a notarised statement of consent from the surrogate mother; and b. we are satisfied that, had the child been born to the man legitimately: the child would have had an automatic claim to British citizenship …under s2 (1)" (citizenship by descent). As a
result
the children were
registered
as British citizens on the 13th May
2015
and issued with passports on the application of this policy guidance.
2015
I made a further order providing a timetable for further evidence and legal argument to be in the following terms. The
recitals
to the order
recorded
that on 13th May
2015
the parties were informed that the Home Office had
registered
the children as British Citizens; that the commissioning father
remained
in India with the children and that the commissioning mother intended to travel to India as soon as the children were issued with their British passports. The order
recorded
that given the delay that had already occurred in the issuing to the children British identity and travel documents, the court expressed its hope that the Indian exit visas would be issued to the children promptly. I gave permission to the solicitor for the child to make an application to me by email if the Children's Guardian considered that one visit to the children would not be sufficient to complete her enquiries.
2015
events continued to move quickly, the twins' passports were delivered to the Applicants' home in England the next day and the commissioning mother and K travelled to India on the 23rd May. The Applicants went to the British High Commission in Delhi to apply for exit visas on the 25th May, which were granted the next day. On the 28th May
2015
all three children flew to England with their parents where they have
remained.
2015
was not contested as the public policy issues that may have arisen had a parental order been sought without
resolution
of the immigration and passport matters, however I had asked that the parties prepare skeleton arguments based on the facts of this case to use it as an illustration of the kind of complex issues that can be raised in foreign surrogacies along with the delays that can occur if not transferred to be heard by a High Court Judge. This judgment will set out some guidance for the allocation of surrogacy cases within the Family Court.
recite
the difficulties being caused by the delays in dealing with the applications at consular level and in the Passport Office. The Applicants and the children were unrepresented until February when an order was finally made for a rule 16.4 (FPR 2010) guardian. Although the situation for the family was
resolved
fairly rapidly once it was transferred there was a considerable delay in the twins being able to join their family in England and they were effectively stranded in India for over a year.
require
permission to
reside
in India under Indian immigration law. Thus while the twins were not permitted to acquire British citizenship from the commissioning parents or to be
registered
as British citizens, they
remained
stateless. As such they were unable to travel. On the children's departure from India, with exit visas granted to them, the Applicants were
required
to pay 36,000 rupees (£364.5) as a penalty for the children's unlawful stay over 12 months in India. They were both stateless and unlawful
residents
under Indian law.
Re
X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) (supra); a case in which Mr Justice Hedley at [10], having noted the "stress and anxiety involved let alone the expense of prolonged accommodation in the Ukraine (at comparable cost to England), the obtaining of expert legal advice, … the cost of testing and immigration negotiations and so forth", said that "The effect was that the children were marooned stateless and parentless whilst the applicants could neither
remain
in the Ukraine nor bring the children home."
required
by Schedule 1 paragraph 4(f) Family Court (Composition and Distribution of Business) Rules 2014 – in force from 22.4.2014 which allocates to judges of the High Court applications under the Human Fertilisation and Embryology Act 2008, section 54, where the child's place of birth was outside of England and Wales". It was observed on behalf of the Applicants, with some justification that the experience of the High Court judiciary in such cases as this and its effective working protocol with the Home Office provide for appropriate Court interventions where, as here, parties have been unable to
resolve
nationality or immigration issues.
Surrogacy Law: s54 Human Fertilization & Embryology Act (HFEA) 2008
relation
to applications of parental orders. Parental orders are a creature of statute and can only be made by the court by virtue of the statutory law, applicants must comply with all the provisions of s 54 of the HFEA 2008 and follow the procedure as set out in Part 13 of the Family Procedure Rules 2010 (FPR 2010). The 2010
Regulations
which accompany the HFEA 2008 came into force in April 2010, paragraph 2 and schedule 1 of the
Regulations
apply s1 of the Children and Adoption Act (ACA) 2002 to Parental Order applications so that the child's welfare must now be the court's "paramount consideration... throughout his lifetime". The parallel with adoption law is underlined by the incorporation of the same statutory provision as
regards
the child's welfare.
relevant
conditions in s54 HFEA 2008 have been met and the approach to an application for a parental order
requires
a similar degree of care and caution as that to an application for adoption. The
requirements
for the making of a parental order should not and cannot be dispensed with:
Re
D and L (Surrogacy) [2012] EWHC 2631; G v G (Parental Order:
Revocation)[2013]
1 FLR 286, notwithstanding the decision of Sir James Munby, President as
regards
time limits in
Re
X (Surrogacy Time Limits) [2014] EWHC 3135 (Fam), subsequently applied in the
reported
decisions of Theis J in AB and CD v CT [
2015]
EWFC
12 and A and B (No 2: Parental Order) [
2015]
EWHC 2080 (Fam) and my decision in A and B (Children: Surrogacy: Parental Orders: Time limit) [
2015]
EWHC 911 (Fam).
result
of the placing in her of an embryo or sperm and eggs or her artificial insemination & the gametes of at least one of the applicants were used to bring about the creation of the embryo, and the conditions in subsections (2) to (8) of s 54 are satisfied. The applicants are
required
to file evidence in the form of statements with the
relevant
documentation exhibited to those statements setting out in detail their case. This is to include the background of the surrogacy and of the surrogate mother Y (the
respondent)
and her husband, wife or partner, where and how the treatment took place, in this case the twins were conceived following in vitro fertilisation (IVF) treatment at the clinic in India which involved the placing in Y's uterus embryos created with the male applicant's sperm and eggs from a donor.
require
that the applicants are husband and wife, or same-sex civil partners or two people who are living as partners in an enduring family
relationship;
this
requirement
is met in this case as the applicants are husband and wife who have filed a copy of their marriage certificate and set out details of their
relationship
in their statements in support of their application. Following the decision of the President, in In the matter of
Z
(A Child) [
2015]
EWFC
73 in which this matter was considered, there is no provision for a single person to make an application for a parental order.
respect
of the twins as can be seen from the date on which the application which was just under 3 calendar months after they were born. There are limited circumstances in which a court can consider an application issued after a period of six months following the decision of the President in
Re
X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) and subsequently applied in
reported
decisions of Mrs Justice Theis in AB and CD v CT [
2015]
EWFC
12 and A and B (No 2: Parental Order) [
2015]
EWHC 2080 (Fam) and my decision in A and B (Children: Surrogacy: Parental Orders: Time limit) [
2015]
EWHC 911 (Fam). In all of these decisions, the court made parental orders notwithstanding the fact that the children subject to the applications were older than six months at the date of the application.
remained
in India and at times were not being cared for there by the Applicants there was no issue in this case as the place the children were living was a home that was entirely arranged and provided for by the Applicants; moreover the commissioning father had
returned
to India in February and
remained
with the children until the whole family came to the UK in May
2015.
Either or both the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man (sub-section (4) (b)). Domicile can be problematic in some cases as it is a peculiarity of English and Welsh law which is often confused with
residence
by applicants acting in person (and others). This was the matter with which the court was concerned in the case of
Re
G
referred
to paragraph 2 above. In the instant case, however, there was no such problem as both Applicants were born in England to fathers domiciled here and there was no evidence to suggest that they had not
retained
their domicile of origin. They were both over eighteen years old at the time the order was made and so meeting the
requirements
of s 54(5) HFEA 2008.
respondent/s'
consent is an essential component of the provisions of s54. Under s54 (6) and (7) HFEA 2008 the court is to be satisfied (s 54(6)) that both the woman who carried the child and any other person who is a parent of the child but is not one of the Applicants (either the husband of the woman, provided he consented, sperm donor in certain specific instances or a woman or the female civil partner of the surrogate, provided she consented)) have freely, with full understanding and unconditionally given their consent. Section 54(7) HFEA 2008
requires
that the consent of the surrogate (and her husband, wife or partner) was given not less than six weeks after the birth. This court was satisfied, on the basis of the evidence filed on behalf of the Applicants that the
respondent
(Y, the gestational surrogate) has consented freely and has been fully informed about what she is agreeing to. I have seen and accept as genuine Y's signed, notarised declaration of consent confirming her free and informed consent to the transfer of custody of the children to the Applicants; that she had
received
financial consideration for her surrogacy services in full; that she consented to the issue of British passports to the children and to the making of a parental order the significance of which was explained to her. The commissioning mother translated the forms prescribed by Part 13 of the FPR 2010 to Y so that she could be sure that she understood what she was signing. This was done in the presence of a Mr Imran Alvi, the Director of Helping Mothers and the surrogacy coordinator, Shweta Khanna.
required
that the
respondent
was a party to the proceedings and that she was served with the application at least 14 days before the hearing or first directions hearing and Y was served with the application and signed the acknowledgement of service which was filed with the court in compliance with the procedural rules. As any form of agreement that is drawn up outside the UK must be witnessed by either a) a person authorised by law to administer an oath for judicial or legal purposes; or b) an official from the British Embassy or Consulate; or c) a notary public; the notarised consent
referred
to in the paragraph above met those
requirements.
I am satisfied that the court has been provided with independent and corroborated evidence that the agreement was properly entered into and Y's consent freely given.
reasonably
incurred. Section 54(8) HFEA 2008 provides that the court must be satisfied that no money or other benefit (other than for expenses
reasonably
incurred) has been given or
received
by either of the Applicants for or in consideration of "(a) the making of the order,(b) any agreement
required
by subsection (6) above,(c) the handing over of the child to the applicants, or (d) the making of any arrangements with a view to the making of the order, unless authorised by the court."
regard
to the welfare checklist as set out in s 1 of the ACA (ACA) 2002: the welfare of the child is no longer simply one consideration among many, but rather the consideration which should override all others.
remains
necessary for the Family Court to have in mind considerations of public policy when exercising its discretion to use the power of authorise payments over and above
reasonable
expenses under s54 (8) HFEA 2008, but the court should and will only
refuse
a parental order in the "clearest case of the abuse of public policy". This approach which was developed by Mr Justice Hedley and
remains
as he set out in
Re
S [2009] EWHC 2977 (Fam) at [7], "This clearly raises matters of public policy and those matters
really
relate
to, as it seems to me, three things: To ensuring that commercial surrogacy agreements are not used to 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." He went on to say. "The court should be astute not to be involved in anything that looks like the simple payment for effectively buying children overseas. That has been ruled out in this country and the court should not be party to any arrangements which effectively allow that." And that; "The court should be astute to ensure that sums of money which might look modest in themselves are not in fact of such a substance that they overbear the will of a surrogate."
Re
X
Re
X and Y (Parental Order:
Retrospective
Authorisation of Payments) [2011] EWHC 3147 (Fam). The approach of this court is that which was set out by Mr Justice Hedley in
Re
L (a child) [2010] EWHC 1738 (Fam) at [12].
"I think it important to emphasise that, notwithstanding the paramountcy of welfare, the court should continue carefully to scrutinise applications for authorisation under Section 54(8) with a view to policing the public policy matters identified inRe
S (supra) and that it should be known that that will be so."
resulting
in the approval of arrangements in favour of people who would not have been approved as parents on welfare grounds under any set of existing law such as adoption for example if the age of the commissioning parents would have excluded them as potential adopters and/or they have previously been turned down for adoption. To paraphrase Mr Justice Hedley, the court must take care not to be involved in anything that looks like payment for buying children overseas. The court cannot be a party to any arrangements which give effect to or sanction commercial surrogacy agreements even if they are legal in the country in which the surrogacy agreement was entered into and where birth took place.
respect
of payments made before during or after commercial surrogacy agreements entered into abroad it must do so with care and, in particular, ensure that sums of money which might look modest by UK standards are not so substantial in the country where the surrogate lives that they could be said to overbear the will of a surrogate by exploiting her financial vulnerability. The statements of the Applicants dealt with these issues and set out fully and frankly the sums paid. The amounts paid for expenses
reasonably
incurred were set out in detail and each expense identified as far as the Applicants were able to do so.
return
to this below, however, the court must also consider payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions and, in doing so here, I am following the decisions of P-M [2013] EWHC 2328 (Fam),
Re
C (A Child) [2013] EWHC 2408 (Fam) and
Re
W [2013] EWHC 3570, as such payments cannot be considered to have been expenses
reasonably
incurred, they fall to be authorised by the Court
retrospectively
along with any payments made to Y. Payments for any medical treatment she
received
can be excluded for such payments must be a
reasonable
expense. Any payment made to the egg donor is excluded for the
reasons
given by Mrs Justice Theis in
Re
C (above at [15]) as such payments do not fall to be considered under the provisions of s54 (8)'.
references
from other commissioning couples and then contacted those couples before they selected the agency. Their contract for services with Surrogacy Abroad
regarding
the twins was their second contract with the agency as it had undertaken the initial arrangements for K's conception and birth. The Applicants have provided this court with copies of bank transfers, the Surrogacy Abroad invoice, a schedule showing their payments to the clinic and the services to which the payment applied. The total sum which was paid amounted to a total of £21,432.38 (sterling) of which £2909.84 was the surrogate compensation fee, similar amounts have been
retrospectively
authorised by the court, for example in the case of in D And L (Minors Surrogacy),
Re
[2012] EWHC 2631 (Fam). In considering the amount paid to Y I take the approach set out above and keep in mind too the judgment of Mr Justice Headley
Re
X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at [19] and [20]:
"In
relation
to the public policy issues, the cases in effect suggest (and I agree) that the court pose itself three questions:
was the sum paid disproportionate toreasonable
expenses?
were the applicants acting in good faith and without 'moral taint' in their dealings with the surrogate mother?
were the applicants party to any attempt to defraud the authorities?"
referred
to the judgment of Sir Nicholas Wall, P in
Re
X and Y (Parental Order:
Retrospective
Authorisation of Payments) (supra) which expressly approved the approach of Mr Justice Hedley and I have applied the principles that have been developed by case law in particular that the question of whether a payment exceeds the level of "
reasonable
expenses" is a matter of fact in each case and that it is contrary to public policy to sanction payments that effectively amount to buying children from overseas. Against that the effect of the 2010
Regulations,
namely that the court must
regard
the children's welfare as the paramount consideration, means that the decision whether to authorise payments
retrospectively
is part of the decision
relating
to the making of a parental order to be decided in the light of the welfare of the children
rendering
virtually impossible to conceive of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign-born child, would not be gravely compromised by a
refusal
to make the order as said by Mr Justice Hedley in
Re
X and Y (2008) and as he said in
Re
L at [10] "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 its making."
respect
of much-wanted children. There is no evidence of moral taint in the Applicants' dealings with Y or with the nationality, immigration, the High Commission or the Indian authorities. I have no
reason
to doubt that the Applicants are entirely genuine and have at all times acted in good faith. Moreover, and as I have already alluded to, the payments are not disproportionate and so the granting of parental orders would offer no affront to public policy and would clearly be in the best interests of the children's welfare. The payments to the agency and clinic and the figures provided by them are not broken down in sufficient detail to separate medical treatment and other
reasonable
expenses from profit and agency fees; this is not unusual, the Applicants have been parties to a legal agreement and made the payments asked of them in keeping with Indian law. The legality of the contract has been confirmed by an independent lawyer instructed by the Applicants who provided his expert opinion that the surrogacy agreement is a legal and valid agreement.
read
and considered the Parental Order
Report
prepared by the children's guardian I have no doubt that the welfare of L and M will be best served by making parental orders in
respect
of each child. I
retrospectively
authorise the payments made over and above
reasonable
expenses having
regard
to the paramouncy of the children's welfare and make a parental order in
respect
of each child.
Guidance: distribution of work
result
of a surrogacy agreement whether it was commercial or not invariably involve some legal complexity. As Mrs Justice Theis said in CC and DD [2014] EWHC 1307 a case in which the applicants were
resident
overseas;
"3. This case highlights once more the legal complexities in this area of the law and the need for those who embark on international surrogacy arrangements to ensure they have expert advice both here and in the jurisdiction where the arrangement is taking place. This international flavour of this case was not unusual: the applicants are of British and French origin, the child was born in the US to a US surrogate mother in an arrangement that involved legal procedures between two US States, the family currently live in France and the proceedings for a parental order are here….
20. There is norequirement
under s54 that the applicant or that the child should be present in this jurisdiction. The court's jurisdiction to make a parental
rests
solely on the
requirement
in s54(4)(b) that at least one of the Applicants has a domicile in a part of the United Kingdom, Channel Islands or the Isle of Man. As noted above, s54 (4) (a)
requires
the child's home to be with the applicants at the time of the application and the making of the order, but does not specify that the child's or the applicants home must be in the UK. A parental order is not a Part 1 Order as defined in Chapter I of the Family Law Act 1986 and therefore jurisdiction to make such an order is not governed by that Act.
In this case it was unfortunate that it was not until April
2015
that specialist advice was obtained.
representing
the Applicants and the children submitted in their joint statement of issues that the "welfare issues raised by this case are stark, serious and exceptional. This travel problem is now
resolved.
However, absent such solution, it is the parties' submission that in this exceptional case the paramount welfare considerations would also have justified the Court arranging an expeditious consideration of the section 54 considerations so as to allow the making of the parental order. This would have included the court hearing directly from the official in the Passport Office, coupled with an urgent invitation to the Home Office to intervene should it choose to do so. In that way the court could have properly addressed, with
representatives
of the
relevant
authorities either present or electing not to be present, the public policy concerns which the course advocated by the parties raise." It can be seen from the case law
referred
to in this judgment that this case is not particularly exceptional in the experience of the judges in the Family Division who have built up a specialist knowledge and expertise in this area of law and an early listing before a specialist tribunal as is envisaged by the guidelines set out below and approved by the President of the Family Division. Indeed it was submitted on behalf of Cafcass Legal as advocate to the court "that [the proposition that] these proceedings should have been transferred to the High Court and the children made parties to the proceedings at the earliest opportunity seems overwhelming."
respect
of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as
referred
to above).
i) All proceedings for parental orders will commence in the Family Court where they will
remain.
They should not be transferred to the High Court.
ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child's place of birth was outside of England and Wales should be allocated to be heard by a Judge of the Family Division.
iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.
iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).
v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order
reporter
is a matter for Cafcass (subject to their own guidance and the guidance below).
Parental Order
Report
recommendations
without having seen the children in the care of the Applicants in the UK in the exceptional circumstances of this case. She made it plain to the court that this was not her preferred option and it was her assumption that she needed to see the children at home with the Applicants. The only
reason
that Ms Dawe felt able to consider such a course was because there was what she described as "wealth of material" about the Applicants' ability to parent K and the support that was available to the Applicants from their wider families. Ms Dawe accepted that parenting three children is different to one but was so concerned about the welfare of the babies stranded in India that she felt that it was an appropriate course for her to take. The role of the Cafcass officer/Cafcass Cymru/Parental Order
Reporter
and the extent and nature of their investigations was one issue in this case that I specifically sought assistance upon from Cafcass Legal and I am grateful to them for that assistance.
Reporter
for the welfare
report
to be properly prepared. The Human Fertilization and Embryology (Parental Orders)
Regulations
2010 does not incorporate section 42(7) of the ACA 2002 which
require
a privately placed child to be seen by the Local Authority together with their adopter in their home, and the Explanatory Memorandum to the
Regulations
makes no
reference
to any such
requirement.
For the purpose of cases of international surrogacy it sets down the following about the acquisition of nationality or citizenship:
"Nationality8.7. As aresult
of
responses
to the consultation, and to ensure parity with adoption legislation, the Parental Order
Regulations
2010 now ensure that where a parental order is made in the United Kingdom and one or both of the commissioning couple are British citizens, the child – if not already so – will become a British citizen."
referred
to the Cafcass Guidance issued to Parental Order
Reporters
at the hearing on 18th May
2015.
This guidance did not
require
in terms that the parental order
reporter
sees the child, but since that guidance was issued, further work was undertaken within Cafcass as a
result
of which fact-sheets were produced for commissioning parents who are applying for parental orders and in the fact-sheet entitled "Parental Order
Reporters"
intended applicants are told that they will be seen by the parental order
reporter
with their child (my emphasis). These documents or fact-sheets were only just published within a few weeks of the final hearing of this case on 7th July
2015.
reported
where the parental order
reporter
has not seen the child. This was accepted by Ms Cronin on behalf of the Applicants. Ms Logan pointed out, and as this court is well aware, members of Cafcass Legal routinely act for High Court team guardians in cases where the children are parties. The court was
reminded
of the fact, well known to it, which is that the High Court team undertakes a large proportion of the parental order cases in the High Court and most of the international ones. Ms Logan told the court that she was unaware, through Cafcass, of any case
reported
or unreported, where the parental order
reporter
has not seen the child. Although this court is aware of one such instance in a
reported
case (see the
reference
in [86] below) it is difficult to imagine circumstances in which a parental order
reporter
could properly
report
on welfare without having seen the child with the Applicants. Ms Logan went on to inform the court she was, at that time, involved in another surrogacy case where determination of the application hade been delayed for a year for similar
reasons.
recommendations
in the absence of seeing the children with the Applicants in the UK. It is the experience of this court that applications for parental orders are made by commissioning parents who do not presently
reside
in this country (when one or both have a UK domicile). In such cases parental order
reporters
see children with commissioning parents/applicants when they visit this jurisdiction as in the case of CC v DD (supra) [2014] EWHC 1307.
report
amply demonstrates both the value and necessity of such observations in terms of the analysis of the welfare checklist set out in s.1 ACA 2002. While it would have been a matter for the court as to whether it would have made the order in the absence of this work in the circumstances of this case; I took the view that the parental order
reporter
had to have seen the children with the Applicants before the court could be satisfied about their welfare.
"This case was listed before me for Directions. However, without the children being in the country the application cannot be progressed. In the first place it appears to me (as presently advised) that the children cannot be said to be habituallyresident
here and thus the court lacks jurisdiction. In any event a welfare decision is
required
as part of the Section 30 application and the Guardian cannot complete her assessment until she has seen the children living with the applicants in this country. The parties invited the court to consider indicating (by
recital
in the order) its view as to the likelihood of an order being granted.
I expressed (and continue to entertain) considerable disquiet about doing that. In the first place I am not presently satisfied that I currently have jurisdiction over these children. Secondly, thereremain
both outstanding welfare enquiries and an invitation to the Court to exercise its jurisdiction under Section 30 (7) to approve certain payments under the agreement. Thirdly the court must be careful not to usurp functions which specifically belong to the executive. And fourthly the giving of advisory opinions (as opposed to Declarations establishing rights or the lawfulness of an action) is alien to the traditional practice of the court. On the other hand it is difficult not to be sympathetic to the actual difficulties faced by these applicants."
require
that the children who are the subjects of a parental order application to be present or habitually
resident
in the jurisdiction for the Court to exercise its jurisdiction under s54. Under s54 (4) (b) the Court's jurisdiction is based on one of the applicants having a domicile in the United Kingdom, the Channel Islands or the Isle of Man. In CC v DD [2014] (supra) Mrs Justice Theis said in her judgment:
"[20] There is norequirement
under s 54 that the applicant or that the child should be present in this jurisdiction. The court's jurisdiction to make a parental order
rests
solely on the
requirement
in s.54 (4) (b) that at least one of the Applicants has a domicile in a part of the United Kingdom, Channel Islands or the Isle of Man. As noted above, s 54(4) (a)
requires
the child's home to be with the applicants at the time of the application and the making of the order, but does not specify that the child's or the applicants' home must be in the UK. A parental order is not a Part 1 Order as defined in Chapter I of the Family Law Act 1986 and therefore jurisdiction to make such an order is not governed by that Act."
referred
to, in CC v DD the parental order
reporter
saw the child (born in the United States and an American citizen who had a US passport and who was able to travel to the UK) on an occasion when the child visited the UK with the applicants. It was rightly observed on behalf of the Applicants that such an arrangement would not be feasible if the subject children, as they were in this case, are stateless and cannot lawfully leave India or travel to the UK. The Applicants submitted the legislation and practice guidance appears to provide the Court with the discretion to direct or judge the scope and arrangements for the welfare oversight needed in any particular case and that the HFEA differs from adoption law and practice as neither the statute nor the
regulations
require
that the subject for children are seen by the parental order
reporter
in their home. This is an accurate exposition of the statutory and
regulatory
provisions as it has always been accepted that Parliament did not intend to
replicate
the adoption
regulations,
however not seeing the child at all is quite different from not visiting the child at home. The FPR 2010 and PD 16A Part 7 (rule 16.35 which must be exercised in accordance with PD 16A) do not
require
that the parental order
reporter
sees the subject children either with the Applicants or otherwise as part of the investigations for the parental order
report.
relevant
procedure and rules contained in FPR 2010 Part 16 is
reproduced
here:
16.35 Powers and duties of the parental orderreporter
16.35.—(1) The parental orderreporter
is to act on behalf of the child upon the hearing of any application in proceedings to which Part 13 applies with the duty of safeguarding the interests of the child.
(2) The parental orderreporter
must—
(a) investigate the matters set out in sections 54(1) to (8) of the 2008 Act;
(b)so far as the parental orderreporter
considers necessary, investigate any matter contained in the application form or other matter which appears
relevant
to the making of the parental order; and
(c) advise the court on whether there is anyreason
under section 1 of the 2002 Act (as applied with modifications by the Human Fertilisation and Embryology (Parental Orders)
Regulations
2010) to
refuse
the parental order.
(3) The parental orderreporter
must also provide the court with such other assistance as it may
require.
(4) The parental orderreporter's
duties must be exercised in accordance with Practice Direction 16A.
(5) Areport
to the court by the parental order
reporter
is confidential.
Practice Direction PD 16A
10.1 The parental orderreporter
must make such investigations as are necessary to carry out the parental order
reporter's
duties and must, in particular –
(a) contact or seek to interview such persons as the parental orderreporter
thinks appropriate or as the court directs; and
(b) obtain such professional assistance as is available which the parental orderreporter
thinks appropriate or which the court directs be obtained.
How the parental orderreporter
exercises duties – attendance at court, advice to the court and
reports
![]()
10.2 The parental orderreporter
must attend all directions hearings unless the court directs otherwise.
10.3The parental orderreporter
must advise the court on the following matters –
(a) the appropriate forum for the proceedings;
(b) the appropriate timing of the proceedings or any part of them;
(c) the options available to it inrespect
of the child and the suitability of each such option including what order should be made in determining the application; and
(d) any other matter on which the court seeks advice or on which the parental orderreporter
considers that the court should be informed.
10.4 The advice given under paragraph 10.3 may, subject to any direction of the court, be given orally or in writing. If the advice is given orally, a note of it must be taken by the court or the court officer.
10.5 The parental orderreporter
must –
(a) unless the court directs otherwise, file a writtenreport
advising on the interests of the child in accordance with the timetable set by the court; and
(b) where practicable, notify any person the joining of whom as a party to those proceedings would be likely, in the opinion of the parental orderreporter,
to safeguard the interests of the child, of the court's power to join that person as a party under rule 13.3 and must inform the court –
(i) of any notification;
(ii) of anyone whom the parental orderreporter
attempted to notify under this paragraph but was unable to contact; and
(iii) of anyone whom the parental orderreporter
believes may wish to be joined to the proceedings
request
I have had the assistance of Cafcass Legal in considering the practice of parental order
reporters
in general and I have already
referred
to their practice guidance (which incorporates the provisions of the FPR 2010) and the fact-sheets they published for applicants in parental order proceedings. I accept the submission made by Ms Logan that while neither the FPR 2010 nor the Cafcass Guidance
required
observation of the children with the Applicants, the evidence before the court
regarding
the welfare of the children filed on and behalf of the guardian, most strikingly her
report
would have both impoverished and hampered the court's analysis.
reporter's
investigation in any case must include the child being seen with the applicants unless there are compelling and exceptional
reasons
based on the child's welfare why such observations cannot take place or where there is sufficient independent evidence pertaining to the child's welfare from an alternative source.
Re
A (Foreign Surrogacy: South Africa) [
2015]
EWHC 1756 is one
reported
case where the court, exceptionally, was able to accept the parental order
reporter's
recommendations
when he did not see the child with the applicants. Although he had not seen the child he had the benefit of a comprehensive independent
report
from a South African social worker on which both he and the court could
rely.
The social worker had visited the child and her family, including the applicants and her older sibling who was the subject of a parental order granted by Mr Justice Hedley in 2012. It is worth noting that not only was this possible because of the independent social work
report
but also there is an admirable and well
regulated
legal framework for altruistic surrogacy arrangements which are overseen by the South African High Court under their Children Act 2005. The arrangements are put in place before conception and the provisions of the legislation are framed to ensure that there is no exploitation of the surrogate.
reporter
to "investigate the matters set out in sections 54(1) to (8) of the 2008 Act"( FPR 2010 Part 16 r16.35 (2) (a)) and do so in accordance with PD 16A 10.1 which gives further directions as to how those investigations are to be carried out including that the parental order
reporter
(a) contact or seek to interview such persons as the parental order
reporter
thinks appropriate or as the court directs. The combined provisions of s 54(4) (a) (that the child's home must be with the applicants) the emphasis on the welfare of the child provided by the 2010
Regulations'
incorporation of s 1 of the ACA 2002 and the procedural rules and guidance are that, to be able to investigate as
required
and to base their conclusions and
recommendations
as to the subject child's welfare on evidence, the parental order
reporter
must see the child with the applicants.
The child's home
Z
& Anor v C & Anor [2011] EWHC 3181 (Fam) (where the children were at least with one of the commissioning parents almost all of the time) the time that the Applicants were with the twins in India was limited by practical, financial and medical constraints. The commissioning father was in India from the 8th May 2014 when he took the twins to the flat they had
rented
in advance of their birth. The commissioning mother was there from the 15th May and they both
returned
to the UK on the 22nd May 2014. The commissioning mother
returned
to India on 12th June 2014 but both were in the UK when these applications were made on 31 July 2014 which was approximately three months after the twins' birth.
remained
living in the flat provided by the Applicants until February
2015
when they moved with the commissioning father to his ancestral village in the Punjab. I accept that the Applicants were
responsible
for the provision and financing of the children's home and care whilst they were in Delhi. The commissioning mother phoned every day so that the babies would hear her voice. Their physical home and care was entirely provided for by the Applicants both materially and financially, but most of their physical and emotional care, at least until February
2015,
was provided by the nannies employed by the Applicant. This was not by choice, however, but solely because of the difficulties they had encountered in their applications for travel documents for the children. In
re
X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam) the President said [52] that the court must consider the statute in question "having
regard
to and in the light of (a) the statutory subject matter; (b) the background; (c) the purpose of the
requirement
(if known); (d) its importance; (e) its
relation
to the general object intended to be secured by the Act; and (f) the actual or possible impact of non-compliance by the parties."
re
X at [54] to [57]:
[54]"Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and hisrelationship
with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal
relationships
with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in
relation
to the practical and psychological
realities
of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, and social and, it may be in some cases, cultural and
religious,
consequences. It creates what Thorpe LJ in
Re
J (Adoption: Non-Patrial) [1998] INLR 424, 429,
referred
to as "the psychological
relationship
of parent and child with all its far-
reaching
manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order:
Revocation)
[2012] EWHC 1979 (Fam), [2013] 1 FLR 286, to which I have already
referred.
And the court considering an application for a parental order is
required
to treat the child's welfare throughout his life as paramount: see in In
re
L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore
required
the judge considering an application for a parental order to look into a distant future."
[55] Can Parliamentreally
have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible
result.
Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor's legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor's office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they
recover
only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child is barred by such mishap? Let it be assumed, though in truth, and with all
respect
to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others [2014] EWHC 595 (Fam), namely to provide for the speedy consensual
regularisation
of the legal parental status of a child's carers following a birth
resulting
from a surrogacy arrangement; that policy surely does not
require
section 54(3) to be
read
as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she
referred
to as delay over "a protracted period", but that is a different point.
[56] I have considered whether theresult
at which I have arrived is somehow precluded by the linguistic structure of section 54 , which provides that "the court may make an order … if … the [
relevant]
conditions are satisfied." I do not think so. Slavish submission to such a narrow and pedantic
reading
would simply not give effect to any
result
that Parliament can sensibly be taken to have intended.
[57] I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period."
reasons
including their mother's medical condition and their elder sister's needs. When the Applicants made the initial arrangements they could not have had any
reason
to believe that events would unfold as they did stranding the twins in India.
2015]
EWHC 9ll Fam [39] to [41]:
39. By virtue of the Human Rights Act 1998 the court has a duty toread
and give effect to the law, as far as possible, in a way which is compatible with the children's and the Applicants' right to
respect
for family life under Article 8 of the European Convention on Human Rights (ECHR). The European Court of Human Rights has ruled in a number of cases going back many years from Marckx v Belgium (1980) 2 EHRR 330, Johnston v Ireland (1987) 9 EHRR 203 and Kroon v Netherlands (1995) 19 EHRR 263, that the right to
respect
for family life under Article 8 ECHR includes the right to adequate legal
recognition
of biological and social family ties.
40. This case engages the Article 8 rights of both Applicants and of the two children. While the ECHR is not part of the substantive law of the UK, the effect of the Human Rights Act 1998 is torequire
that UK domestic law is interpreted so as to be compatible with convention rights. That the interpretation should be 'practical and effective' is well established and that interpretation should be the most appropriate to
realise
the aims and objectives of the ECHR; Artico v Italy (1981) 3 EHRR 1 and Wemhoff v Germany (1979) 1 EHRR 55. In Odievre v France (2004) 38 EHRR 43 the ECtHR held that Article 8 ECHR also encompasses the right to an identity. I keep in mind as I must Article 8 of the ECHR which provides:
Everyone has the right torespect
for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or in the economic well-being of the country, for the prevention of crime and disorder, for the protection of health or morals, or for the protection of the rights and freedoms of others.
41. The sine qua non of Art 8 is the right to live one's personal life without interference; it is the right to one's personal integrity, therefore if members of a family are prevented from sharing family life together, Art 8 (1) is probably infringed; Anufrijeva v Southwark London Borough Council and others [2003] EWCA Civ 1406, [2004] 1 FLR 8. That therelationships
between the Applicants and A and B constitute a 'family life' is self-evident on the facts. The existence of a family life is a "question of fact depending upon the
real
existence in practice of close personal ties" K v UK (1986) 50 DR 199. Even without the parental orders sought or adoption orders sought this is a family with rights to have their family life
respected.
Moreover as the provisions of the Adoption and Children Act 2002 include at s1 (4) (f) as part of the welfare considerations "the
relationship
the child has with
relatives,
and any other person… whom the court considers to be
relevant"
it can be legitimately argued that the granting of parental orders would be in accordance with UK legislation and therefore would be both lawful and proportionate in keeping with Art 8 (2) notwithstanding wider public policy issues alluded to above and below.
reference
to s 54(4) (b) the children may not have been living with the Applicants "at the time the application was made" but they certainly were "at the making of the order". Moreover their home in India was one constructed by their commissioning parents and with the previous case law in mind I have no difficulty in finding this part of the provisions of s54 met in the circumstances of this case. The intention of the Applicants was always to establish family life for the twins within their own family. The girls were planned for and much wished for children, conceived with the commissioning father's sperm. The Applicants fought for over a year to
re-unite
their family; for these children have no other family in any sense, nor was it intended that they would be a part of any other family. It was the intention of Y and of the Applicants that they would be brought up by the Applicants as their children in law and in fact, and it is the purpose of this application.
Immigration and citizenship
relationship
between the family court and the immigration authorities in
Re
A (Care Proceedings: Asylum Seekers)[2003] EWHC 1086 (Fam), [2003] 2 FLR 921 :
[53] So much for the authorities. The law, as I have said, is clear and I do not propose to add to the jurisprudence on this topic. I simply make the following points by way of emphasis:
(i) The functions of the court under the Children Act 1989 and of the Secretary of State under the Immigration Act 1971 andrelated
legislation are, by and large, separate and distinct. The court and the Secretary of State are performing different functions.
(ii) The court when exercising its powers under the Children Act 1989 is not entitled to haveregard
to immigration policy. It must be guided by the interests of the child.
(iii) The court when exercising its powers under the Children Act 1989 necessarily has to apply a different test from the test that the Secretary of State applies:
(a) So far as concerns the Secretary of State the child's interests are not paramount. There is a balancing exercise in which the scales start even.
(b) In contrast (and assuming that the threshold is established in those cases where there is a threshold to be met) the court has to apply the principle that the child's welfare is the paramount consideration.
(iv) Where the proceedings under the Children Act 1989relate
to a child who is liable to
removal
or deportation the jurisdiction should be exercised very sparingly.
(v) If, apart from immigration questions, there is no genuine dispute concerning the child, then the court must not allow itself to be used as a means of influencing the decision of the Secretary of State. Indeed, the use of the court's jurisdiction merely to attempt to influence the Secretary of State is an abuse of process.
result
of this practice consideration of the role of the Home Office is to be given at the first directions hearing in an application for adoption; as provided for in FPR 2010 PD14B (The First Directions Hearing – Adoptions with a Foreign Element) 14(2) (d) (ii). It is not always necessary to do so in applications for parental order applications nor is it
required
by the FPR Part 13. It is clear, however, that in this case, that notification and/or invitation should have been given (on the face of a court order) to the Home Office, the Passport Office and the Foreign and Commonwealth Office at the first opportunity after it had become apparent that there were difficulties in the children leaving India. As noted by both Ms Cronin and Ms Logan it was only when the matter was the subject of an order of, and
requests
made by, a High Court judge that formal, if partial, explanations for the delay were forthcoming. Soon after that the children were able to join their family in England.
reasons set out in my judgment above.