W (Foreign Surrogacy: Consent and Welfare), Re [2025] EWFC 85

[2025] EWFC 85Case No ZC23P01894
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 April 2025
Before
MRS JUSTICE THEIS DBE
Between
Mr WApplicantMs SRespondentsG, by her Children’s GuardianRespondent
Andrew Powell (instructed by Mills & Reeve) for Applicant for The First Respondent did not attend and was not representedEva Holland of CAFCASS Legal for Second RespondentHearing Hearing date: 28 th January 2025Judgment: 2 nd April 2025
Approved Judgment.............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. Nobody may be identified by name or location. The anonymity of everyone other than the legal representatives must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Mrs Justice Theis DBE:Introduction
[1]The court is dealing with an application for a parental order in relation to G, now aged 21 months. The application is made by Mr W, who is G’s biological father. G was born as a result of a surrogacy arrangement between Mr W and Ms S, the gestational surrogate. The surrogacy arrangement was entered into with a clinic based in Northern Cyprus, Cyprus Family Dream IVF. Ms S is a Kyrgyzstan national who travelled to the clinic in Northern Cyrus for the embryo transfer.[2]Ms S is a respondent to this application as is G, through her Children’s Guardian, Ms Magson.[3]Unusually, this application has taken 15 months to determine. This has been for two reasons:(1) The absence of effective consent in accordance with s 54A (5) HFEA 2008 from Ms S, more than 6 weeks after the birth of G.(2) The relevance of an outstanding police investigations regarding Mr W.[4]A number of recent cases have recognised the central importance of consent in parental order applications and the need for any intended parent embarking on a surrogacy arrangement, particularly one that involves a number of different jurisdictions, to seek specialist legal advice before entering into such an arrangement (Re Z (Foreign Surrogacy) [2024] EWFC 304). This case provides yet another cautionary tale.[5]In Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam), a case that raised similar issues as in this case, Sir Andrew McFarlane, President of the Family Division, was clear at [35] when he stated as follows:
‘The publication of this judgment, and the clear indication that the government may, in any future case, oppose the making of adoption orders, should put would-be parents (of any age) who are contemplating entering into a commercial foreign surrogacy arrangement on notice that the courts in England and Wales may refuse to grant an adoption order (or if HFEA 2008, s 54(1)(b) or s 54A(1)(b) is satisfied, a parental order), with the result that the child that they have caused to be born may be permanently Stateless and legally parent-less. Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.’
[6]That blunt message could not be clearer about the steps that need to be taken, and the consequences if they are not. In the light of the observations made by the President in Re Z, I am going to direct that a copy of this judgment is sent by the solicitor for the child to the relevant Government Departments that participated in Re Z.[7]The hearing of this application took place on 28 January 2025, it led to the possibility of further information being available regarding the surrogate’s consent. As a consequence, the application was adjourned to enable those steps to be taken with directions for further submissions in writing and a timetable for this judgment to be given. Since that hearing, Ms Magson has been able to speak to Ms S and has filed a further report setting out the details of that contact. The parties have made further written submissions, for which the court is very grateful.[8]Before turning to the background Mr W sets out in his most recent statement ‘In addition to being extremely costly, attempts to reaffirm consent from the surrogate has been very difficult’. He does not consider the Clinic or their legal representative, Mr Kizilduman, have been helpful. I agree. There have been very long delays by them in responding to communications. The experience following Mr Kizilduman’s oral evidence in January 2025 is a recent example. Mr Kizilduman simply failed to keep in contact or provide the information he said he would do, even making all due allowance for any personal difficulties he has stated resulted in those delays. The recent direct contact with Ms S has now called into question the reliability of Mr Kizilduman’s evidence. The Clinic have simply not co-operated with any reasonable requests for further information.

Relevant background

[9]Mr W, age 37, who was born in this jurisdiction, married Ms Y in Country C in November 2020. Following the granting of a spousal visa, Mr W’s wife, Ms Y, joined him here in March 2021. Their relationship soon encountered difficulties, with both parties making reports to the police.[10]They separated in 2022 and have since divorced. Mr W states he had always wanted children and read about surrogacy after the separation. Mr W made contact with a surrogacy agency in Northern Cyprus, Cyprus Family Dream Health IVF (the Clinic). He told the parental order reporter that he was impressed by the Clinics expertise and focus on the surrogate’s welfare. At that time, Mr W was undertaking treatment that may limit sperm quality which gave a context for his relatively short decision making timeframe.[11]Mr W travelled to Northern Cyprus for five days in August 2022. He signed a contract with the Clinic, deposited his gametes and chose an anonymous egg donor with very limited information being available in the written profiles. According to the letter from Dr Erman Sever from the Clinic, two embryos were created with Mr W’s gametes and donor eggs. The Clinic chose the surrogate without any involvement by Mr W. He understood he would have no direct contact with the surrogate.[12]The written agreement with the Clinic prohibited direct communication with the surrogate, unless otherwise agreed. The agreement ‘offers the intended parent a two and a half year guarantee that they will receive a baby. Should this not occur then the intended parent is entitled to a refund of monies paid…’ and provides, if the agreement is not terminated, the Clinic ‘will continue the procedure to provide the intended parent his baby, even after two and half year period, without any additional costs to the intended parent’. The agreement provided the payment protocol totalling 75,000 EURO in four staged payments, the last to be within one week of three months pregnancy. The agreement further provides that the birth certificate is provided to the intended parent within approximately two weeks following birth. As regards any additional documents in order to assist in obtaining a passport, the agreement states ‘it is the responsibility of the intended parent to research requirements of your specific country of origin’. The agreement provides ‘Cyprus law will be enforced if conflict occurs between parties’.[13]In September 2022 Mr W was arrested here for an alleged sexual offence against his wife, Ms Y, and released pending investigation.[14]The surrogate, Ms S, travelled to Northern Cyprus and the embryo transfer took place on 10 October 2022. A pregnancy was confirmed and Ms S returned to Kyrgyzstan.[15]In early 2023 Mr W commenced a relationship with Ms B, who he had previously had a relationship with. They remain together.[16]Mr W received updates from the Clinic during the pregnancy and Ms S returned to Northern Cyprus in advance of the expected date of delivery. Mr W travelled to Northern Cyprus in advance of the birth. G was born at Famagusta Life Hospital, Mr W met G and Ms S. G was discharged into Mr W’s care the following day. Mr W said he met Ms S at the registration of G’s birth. Mr W’s partner, Ms B, travelled to Northern Cyprus to support Mr W two weeks after G’s birth, and again in October 2023.[17]Mr W and G remained in Northern Cyprus for four months awaiting G’s travel documents. They travelled to this jurisdiction in November 2023.[18]Mr W’s application for a parental order was made in November 2023. Cafcass safeguarding checks revealed two alleged offences; one of racial/religious aggravated harassment/stalking without violence where the police raised concerns as to Mr W’s mental health and, the second, battery. The former related to a letter Mr W sent to a medical professional accusing them of discrimination. Mr W was interviewed under caution but there was no evidential basis to proceed. The battery related to Mr W being arrested for common assault after Ms Y accused him of pushing her onto the sofa and snatched a phone out of her hand. Mr W was arrested and after investigation the case was closed, with no further action by the police. In addition, in March 2022 Ms Y reported to the police that Mr W had raped her on three occasions in late 2021. Mr W’s arrest in September 2022 related to this matter, it was the first time he was aware of the allegations. Mr W details in his written evidence the wider context of these allegations and the reports he had made regarding Ms Y’s behaviour to the police. Mr W was interviewed and in June 2024 the police concluded the matter, as Ms Y had withdrawn her support, did not wish to proceed with the investigation any further and the case was closed by the police. In his written statements Mr W set out in some detail the information he had that undermined the credibility of Ms Y’s allegations. Cafcass made a safeguarding referral to the local authority and submitted a risk assessment to the court.[19]In January 2024 G was joined as a party to the parental order application, the parental order reporter was appointed as the Children’s Guardian. Directions were made for disclosure from the police and local authority and for Mr W to file a statement addressing these matters. A child arrangements order was made so Mr W would have parental responsibility for G.[20]In March 2024 the Clinic that facilitated the surrogacy arrangement were notified of the police investigation. It was also understood that Ms S was informed as well. Neither had been aware of the police investigation previously. Mr W’s solicitor wrote to them, attaching a copy of Mr W’s written statement setting out his evidence about those matters.[21]The local authority completed a child and family assessment in March 2024. It concluded that the case was being closed with no further action. The detailed assessment set out that there was no safeguarding risk to G and it considered the reports of sexual assault against Mr W by Ms Y were unsubstantiated.[22]At a hearing in May 2024 the court ordered further police disclosure, a further statement from Mr W and a letter to Ms S via the Clinic’s lawyer, Mr Kizilduman, detailing an update about the proceedings and directing a notarised consent or a statement from Mr Kizilduman. The matter was listed for hearing in October 2024.[23]On 20 September 2024 the court directed that in the event that a notarised consent was not received by 15 October 2024 either the Clinic director, Mr Unsal, or Mr Kizilduman were to file a statement setting out their contact with Ms S, her understanding of the proceedings and her position in respect of the parental order application, together with any contact details for Ms S. This was to enable the Children’s Guardian to make contact with her, with a position statement to be filed by the Children’s Guardian setting out details of any discussions had with Ms S.[24]The hearing listed for October 2024 was adjourned to January 2025.[25]Mr W has filed four statements in which he has set out the history in relation to the police records, his own background and the evidence relied upon to support the s54A criteria being established.[26]Mr W has also filed a statement by Mr Kizilduman of Levent Kizilduman & Associates that confirms he is a lawyer in Cyprus engaged with the Clinic. He made the statement in English and stated he did not require an interpreter. In that statement he referred to it being common in surrogacy in Northern Cyprus for clinics to recruit surrogates from countries such as Kyrgyzstan, who travel to Cyprus for the embryo transfer, monitoring and prior to birth so that the baby is delivered in Cyprus. He stated the Clinic had worked with intended parents from the United Kingdom previously, was aware of the need for consent for a parental order to be obtained but was not aware that consent must be obtained more than six weeks after the birth of the child. He stated the letter from Mr W’s solicitor in March 2024 with a translated version of Mr W’s statement setting out the safeguarding concerns was provided to Ms S, as was the further letter from Mr W’s solicitor written in July 2024. His statement continues that Ms S contacted the Clinic in August 2024 seeking help in having the consent notarised. He stated she understood the police and social services investigation had concluded and wished to sign the A101A form again. The statement continued she was not able to travel to Cyprus again as she had overstayed her visa previously and had been unable to find a notary local to her. In the statement he provided Ms S’s address and telephone number. He stated that he considered Ms S was aware of the allegations, did not wish to exercise any legal or parental responsibility for G and consented to the parental order being made.[27]In his oral evidence at the hearing on 28 January 2025, Mr Kizilduman provided details of the discussion he had had with Ms S and Mr Unsal in August 2024. He was able to find the google calendar entry to confirm that meeting took place but did not have a file note to confirm what was discussed. In his oral evidence he was clear that Ms S consented to the parental order being made and understood what that consent meant. Following his oral evidence, he told the parties that he had been informed by the Clinic the surrogate had moved to Russia.[28]Following that oral evidence, I directed that Mr Kizilduman was requested to obtain from the Clinic and serve on the parties by 31 January 2025 the following information:a. Details of communications between the first respondent surrogate and the clinic including the dates of communication including the most recent, method of communication, and any additional contact details for the first respondent.b. How letters from the applicant’s English lawyers dated 8 March 2024 and 24 July 2024 were sent to the surrogate;c. Whether the first respondent surrogate responded to those letters, and if so by what means;d. If the first respondent surrogate did respond, copies of those responses or record of the responses if available;e. Details to enable a meeting via video call to take place between the First Respondent and the guardian. This meeting is to be arranged and facilitated by the clinic and the clinic is asked to provide an interpreter. The meeting will if possible take place on the one of the following dates which are convenient to the guardian - Tuesday 11 February at 11am UK Time, Thursday 13 February at 10am UK time or Tuesday 18th February at 2pm UK time.[29]Directions were also made for a notarised consent to be filed by 7 February 2025 and for the Children’s Guardian, Ms Magson, to use her best endeavours to speak to Ms S, for a short addendum report to be filed by 24 February 2025 with directions for further written submissions by the parties.[30]In her addendum report Ms Magson sets out the numerous attempts she had made to contact Ms S using the contact details that had been provided by Mr Kizilduman. Each call failed and there was no response to the text messages. No further information was received from Mr Kizilduman although he emailed the parties on 20 February 2025 apologising for not being in contact due to personal reasons and confirmed the Clinic had not provided him with any additional information stating he was ‘pushing the clinic as much as possible’ and suggested a video call with representatives from the Clinic ‘so they can personally commit to a timeline’.[31]On 18 February 2025 Ms Magson again tried to contact Ms S directly which she responded to. Ms Magson sent a more detailed message asking if she consented to the parental order being granted and for her to confirm G’s date of birth. Ms Magson did not mention Mr W’s name. The response was ‘Yes, I agree to the Parental Order for [G] to [Mr W’s first name]. Her birthday is on [date of birth]’. Whilst Ms Magson recognises that the information from the Clinic has not been forthcoming she states in her report ‘there is evidence before the court that [the surrogate] has consistently said she does consent to the granting of the Parental Order which she last confirmed during our exchange of messages on 18/2/2025’.[32]Following receipt of that additional information, I directed further steps were taken to make contact with Ms S, for a further report to be filed setting out details of those steps, and for the parties to make any further written representations.[33]In her most recent report Ms Magson outlines the steps she has taken. Ms Magson sent Ms S a message translated into Russian requesting a video meeting with her to further discuss her consent to the granting of a parental order for G. Ms S responded and a meeting took place remotely by video call on 24 March 2025 with the assistance of a Russian interpreter. Ms Magson sets out that she explained to Ms S the purpose of the meeting and the effect of a parental order. In her report Ms Magson states Ms S ‘stated she understood this and that she had always known that was the case and confirmed her consent to the granting of the order’. Ms S said she had used google translate to interpret the messages from Ms Magson in February. When Ms Magson asked her about the letters from Mr W’s solicitor regarding the police investigation concerning Mr W and the meeting in August 2024, Ms S said she did not recall getting the letters or the meeting. Ms Magson informed Ms S that the police investigation had concluded and Mr W was not being prosecuted and Ms S ‘responded that as [Mr W] was ‘not guilty’ then that did not impact on her providing her consent, which she again confirmed’. Ms S confirmed she had been in Russia but had returned to Kyrgyzstan, had brought a property and was living with her child. Ms Magson concludes in her report ‘I consider that there is evidence that [Ms S] has provided consent to a parental order being granted, and I am satisfied following our video conversation that she agrees to the order and understands the implications of the order’.

Legal framework

[34]The relevant parts of HFEA 2008, s54A are: 54AParental orders: one applicant (1)On an application made by one person (“the applicant”), the court may make an order providing for a child to be treated in law as the child of the applicant if— (a)the child has been carried by a woman who is not the applicant, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination, (b)the gametes of the applicant were used to bring about the creation of the embryo, and (c)the conditions in subsections (2) to (8) are satisfied. (2)Except in a case falling within subsection (11), the applicant must apply for the order within the period of 6 months beginning with the day on which the child is born. (3)At the time of the application and the making of the order— (a)the child’s home must be with the applicant, and (b)the applicant must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man. (4)At the time of the making of the order the applicant must have attained the age of 18. (5)The court must be satisfied that both— (a)the woman who carried the child, and (b)any other person who is a parent of the child but is not the applicant (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. (6)Subsection (5) 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. (7)The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the applicant for or in consideration of— (a)the making of the order, (b)any agreement required by subsection (5), (c)the handing over of the child to the applicant, or (d)the making of arrangements with a view to the making of the order, unless authorised by the court.

Submissions

[35]Mr Powell submits that the focus of the evidence has related to the safeguarding concerns raised and the issue of consent. The other criteria under s 54A HFEA 2008 are satisfied by the evidence submitted by Mr W.[36]Rule 13.11 Family Procedure Rules 2010 provides ‘Unless the court directs otherwise, the agreement of the other parent or the woman who carried the child to the making of the parental order may be given in the form referred to in Practice Direction 5A or a form to the like effect.’ He submits it is open to the court to consider all the evidence in circumstances such as this, where the evidence relating to consent comes from a number of sources.[37]A notarised consent form A101A was signed by Ms S and notarised five days after G’s birth, which clearly did not meet the requirement in s54A(5) for it to be at least six weeks after the child’s birth. It was also signed at a time when Ms S was not aware of the safeguarding issues that had been raised. Since then, Mr Powell submits, if the court accepts the evidence, it demonstrates that the surrogate has been made aware of the background circumstances of Mr W and has consistently maintained her consent. Most recently this has been confirmed to Ms Magson in the exchange of message with the surrogate on 18 February 2025 and the video meeting on 24 March 2025. Mr Powell recognises the court cannot rely on the consent given prior to six weeks but any consent given afterwards can be considered in the light of the earlier consent. He submits the combination of all the evidence taken together means the court can be satisfied the consent requirement is established.[38]Ms Holland supports that submission in her detailed written submissions. She submits the evidence demonstrates the surrogate has been consistent in her consent to the court making a parental order. That includes the consents executed before the period of six weeks had expired but also afterwards, for example the acknowledgment of service form in January 2024. Ms Holland acknowledges that was prior to the surrogate being informed of the criminal investigation, but the evidence now demonstrates that Ms S has continued to give her consent having been made aware by the Children’s Guardian that the police investigation of Mr W had concluded with no further action being taken against him.

Discussion and decision

[39]There have been a number of troubling aspects of this case, many of which could have been avoided had the steps I outlined in Re Zbeen taken before embarking on this surrogacy arrangement. The court cannot emphasise strongly enough the need for those critical steps to be taken in advance of embarking on a surrogacy arrangement. By not doing so, the welfare of the child born as a result of such an arrangement can be put at risk, and the court may not be able to make a parental order which will have long term implications for the intended parents and the child.[40]The focus of the evidence has been on the issue of consent, but it is important not to lose sight of the chronology that the embryo transfer took place after Mr W had been arrested for alleged serious sexual offences. Mr W acknowledges he needed to inform his employer here about that but states he did not consider that he needed to inform the Clinic or Ms S. In my judgment that view was, at the very least, naïve and has been one of the major causes of the delay in being able to determine this application, although I accept his evidence that he ‘genuinely would have asked the clinic to inform [the surrogate] if it had occurred to me that I was legally obliged to do so’. He realises his mistake in not reporting this to them, although he states he was asked no questions by the Clinicabout any criminal or safeguarding matters when he signed the agreement with them.[41]The criteria in s54A other than consent are met in that there is evidence that Mr W’s gametes were used to create the embryo that was transferred to Ms S, who carried and gave birth to G (s54A(1)). The application was made within six months of G’s birth (s54A(2)). G had her home with Mr W when the application was made and at the time when the court is considering making a parental order and Mr W is domiciled in this jurisdiction (s54A(3)). Also, Mr W is over 18 years (s54A(4)).[42]As regards payments, this was a commercial surrogacy arrangement where Mr W paid the sum of 75,000 EUR to the Clinic from which Mr W understood about 14,000 EUR was paid to Ms S. There is a document signed by Ms S confirming she received 14,000 USD. The agreement provides for additional itemised payments at paragraph 10 as well as the figure of 14,000 USD compensation. These payments clearly involved payments other than for expenses reasonably incurred. As was set out by the President in Re Z the Clinic here, as in Re Z, was operating in the Turkish Republic of Northern Cyprus where surrogacy is understood to be unlawful. In order for this court to consider authorising sums other than for expenses reasonably incurred the court considers matters such as the level of payments made, the surrounding circumstances and whether the applicant has acted in good faith. There is nothing in the evidence to suggest that this was other than an arms-length surrogacy arrangement entered into consensually by all parties and Mr W has acted in good faith. This is notwithstanding that I consider Mr W was naïve in not considering that he should have informed the Clinicand Ms S about the change in his circumstances following his arrest, despite his view about the lack of credibility of the allegations that lay behind the arrest. Not without some hesitation, I consider the court should authorise any element of the payments that do not relate to expenses reasonably incurred.[43]Turning now to the issue regarding consent. It is unfortunate the steps that Mr Kizilduman outlined in his oral evidence in January 2025 did not take place. The fact they didn’t underscores the inherent risks in these surrogacy arrangements, particularly in jurisdictions that do not permit these arrangements, lack any legal structure to underpin them and the cross jurisdiction complexity. In addition, subsequent events have now raised a real question over the credibility of Mr Kizilduman’s evidence, such that I am satisfied the court cannot place any reliance upon it.[44]Both Mr Powell, on behalf of Mr W, and Ms Holland, on behalf of the Children’s Guardian, urge the court to look at the wide canvas of evidence about consent. When considered in that way the court can, they submit, conclude, on the particular facts of this case, that Ms S has given her consent in accordance with the requirements of s54A(5).[45]In considering their submissions I have borne in mind the importance of consent in applications for parental orders. Whilst the court can consider the wider evidential picture it must do so in the context of the central role consent has and the requirements set out in s54 for it to be effective consent.[46]Having considered the evidence I am satisfied on the particular facts of this case, to the required standard, that Ms S does consent to this court making a parental order in accordance with s54A(5). This is for the following reasons.(1) The evidence demonstrates that at the time of the embryo transfer Ms S was widowed. There was an error in the document signed by Ms S for the consent to the issue of a British Passport for G when she stated she was divorced. The balance of the evidence supports her being widowed at the relevant time.(2) Although given prior to the expiry of six weeks after the birth of the child, Ms S did sign in June 2023 five days after G’s birth a translated form A101A consent that was notarised.(3) In July 2023 Ms S signed a consent to the issue of a British passport for G in which she agreed she had no parental responsibility for and had given up custody of G.(4) Ms S signed the C52 acknowledgement of service form in January 2024 which was translated and notarised, by way of ticking the relevant box on the form she consented to a parental order being made.(5) When Ms Magson sought to make contact with Ms S she responded by WhatsApp message on 18 February 2025 confirming her consent, volunteering G’s date of birth and referring to Mr W, even though that information had not been given by Ms Magson.(6) As detailed above, Ms Magson was able to have a video meeting with Ms S on 24 March 2025 with a Russian interpreter where she was satisfied Ms S consented to the court making a parental order.[47]When considering all the evidence at no stage has Ms S done other than take actions that are consistent with her consent to the court making a parental order. There is evidence that she is aware of the basis and consequences of giving that consent. I have borne in mind that the only signed and notarised consent is before the expiry of six weeks and prior to the surrogate being made aware of the history of the safeguarding issues concerning Mr W. It is part of the wider evidential canvas to be considered with the other evidence. I am also very conscious of the obligation on the court to be careful not to use and rely on evidence that risks undermining the legal requirement that consent is only valid if given after six weeks [Re D and L (Surrogacy) [2012] EWHC 2631 [29]).[48]In Re Z (Foreign Surrogacy) [2024] EWFC 304 at [49] I emphasised the importance of consent and the requirement in the statutory framework that it is given ‘freely, unconditionally and with full understanding’. In that case the surrogate mother became aware soon after the child’s birth that the applicants were in a same sex relationship, she provided written consent which was in form A101A but had not been properly notarised or translated. The surrogate had a discussion with the Children’s Guardian on two occasions and the court accepted she understood the implications of a parental order being granted with the consequence that I was able to conclude that the combination of the written evidence and the contact with the Guardian that the consent requirement was established in that case.[49]In the particular circumstances of this case, having regard to the history of the documents signed by the surrogate and the recent contact from the surrogate to the Children’s Guardian that volunteered information about her identity, G’s date of birth and Mr W’s name followed by the detailed video call the court can place weight on that evidence.[50]I accept that when the evidence is considered as a whole Ms S has given her consent to the court making a parental order that meets the requirements of s54A(5).

Welfare

[51]Turning to consider whether making this order will meet G’s lifelong welfare needs, the previous Children’s Guardian and Ms Magson have made extensive enquiries in this case. The previous Children’s Guardian saw and spoke to Mr W and Ms B, saw G in their care and had contact with the community health nurse and nursery nurse. The family have also been seen by the local authority social worker as part of their assessment. G is reported to be very well settled in Mr W’s care, is making good progress in all aspects of her development and the first Children’s Guardian’s report concluded that Mr W and Ms B present as ‘confident and capable parents’ and that ‘they are able to meet [G’s] holistic needs throughout childhood’. Mr W recognises that G will need information specific to her own particular background and has sought support with that. As regards the allegations that arose from the police disclosure the previous Children’s Guardian carefully considered the information available to him and concluded that ‘there are no indicators…that [G] is at risk, pertaining to allegations against him’ although he did consider that Mr W ‘may be reluctant to acknowledge within these proceedings any feelings that could be used to criticise or undermine him’. The Children’s Guardian carefully analyses his concern that Mr W continued with the embryo transfer despite his arrest the previous month for an alleged serious sexual offence and the potential of such a charge was a custodial sentence. Mr W was apologetic in not informing the clinic or the surrogate, stating that he was not aware that he should have done so and pointing out that he immediately informed his employer because he was aware of the requirement to do so. Mr W considered it inconceivable that he would have been convicted due to the lack of credible evidence.[52]In his written evidence Mr W sets out his mental health history, primarily related to a diagnosis of obsessive-compulsive disorder in the context of being on the autistic spectrum. Mr W has engaged with psychiatric treatments over the years, been engaged with the same psychiatrist since 2016 who considers Mr W has made good progress over the years. Mr W is not currently receiving any psychiatric treatment and has not had any since G’s birth. He had some therapeutic intervention prior to G’s birth. As the Children’s Guardian notes Mr W ‘has never posed a risk to himself or anyone else as a result of his presentation. He had cognitive behaviour therapy for OCD in 2022 and currently takes a low dose of tradozone (150mg), which works as a sedative at night as recommended by a specialist’. Mr W has other medical conditions, such as high blood pressure, which are all managed under medical advice.[53]The Children’s Guardian’s assessment is Mr W was ‘open and honest about these difficulties, and he is evidently proactive reaching out for support when required. He states he has never required hospital admission. He is resourceful and capable, having completed a degree…. His presentation in interview did not raise any concerns and no other agency has expressed concerns. He is appreciative of [Ms B’s] childcare expertise and experience and has a willingness to learn and develop as parent.’ He concludes that he considers ‘the safeguarding matters identified at the outset of these proceedings to be resolved. There is no information to indicate that [G] has suffered or is at risk of suffering harm in her intended parent’s care’. Subject to the court being satisfied that the s 54A criteria were established, the report supported the making of a parental order.[54]Ms Magson took over the case due to the previous Children’s Guardian being unable to continue and has been mainly focussed on the issue of consent. In the careful analysis of the welfare checklist in Ms Holland’s written submissions she makes it clear Ms Magson continues to support the court making of a parental order.[55]Having considered the evidence I agree that G’s lifelong welfare needs will be met by the court making a parental order. She is making good progress in Mr W’s care who has a biological connection with her. He is supported by Ms B, with whom G has a close relationship with. The safeguarding concerns have been dealt with in the evidence and Mr W is someone who has demonstrated appropriately seeking advice and support when required. G is noted to be part of a large and close extended family. Making a parental order will recognise the reality of her life and provide lifelong security and stability.[56]For the reasons set out above a parental order will be made.