A & B (Children) (Surrogacy: Parental orders: time limits) [2015] EWHC 911 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No ZC68/14 AND ZC69/14

[2015] EWHC 911 (Fam)

IN THE FAMILY COURT

(Sitting in the HIGH COURT FAMILY DIVISION)

IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008 (Section 54)

AND IN THE MATTER OF A (A Boy) (Born 12 th October 2006) & B (A Girl) (Born 27 th April 2009) (By their Children’s Guardian)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/04/2015

Before

MS JUSTICE RUSSELL

Between

D & GApplicant

ED & DDRespondent

1st & 2ndRespondent

A & BRespondent

(By their children’s guardian)Respondent

3rd& 4thRespondent

D & G

Applicants

ED & DD

1 st& 2 nd Respondents

A & B

(By their children’s guardian)

3 rd& 4 th

Respondents

Ms Natalie Gamble (of Natalie Gamble Associates) for Applicants

Ms Penny Logan (of Cafcass Legal) for 3 rd& 4 th Respondents

for The 1 st and 2 nd Respondents did not appear and were not represented

Hearing Hearing date: 14 th January 2015

Judgment

The Honourable Ms Justice Russell DBE:

Introduction

[1]This is an application for parental orders in respect of two children who were born as a result of gestational surrogacy agreements entered into in the USA in 2006 and 2009. The application originated as an application for adoption orders, pursuant to s 46 of the Adoption and Children Act 2002 (ACA), in respect of A, who was born on the 12th October 2006 and is now 8 years 3 months old, and his sister B, who was born on the 27th April 2009 and is now 5 years 8 months old. At the time the applications were made on 23rd June 2014 the Applicants had been advised that it was not possible to make applications for parental orders as they had exceeded the six month time limit provided for in s 54(3) of the Human Fertilisation and Embryology Act (HFEA) 2008. On the 3rd of October 2014 in Re X

[2014] EWHC 3135

Sir James Munby, President of the Family Division, handed down a judgment in which he made a parental order in respect of a child when the application had been made some 2 years and 2 months after the birth of the child.

[2]In this case the time elapsed is considerably longer and both children were conceived (and A was born) before the HFEA 2008 came into force when the HFEA 1990 provided the relevant statutory framework for parental orders and the regulation of surrogacy arrangements in the UK. As with the 2008 Act, section 30(2) of the 1990 Act set down those applicants “must apply for an order within six months of the birth of the child.” These applications are made pursuant to the HFEA 2008.

[3]In one respect the case has a marked similarity with the X case which is that the Applicants as “the commissioning parents” were not aware of the need to apply for parental orders to provide their children with the same legal status as they had in California where they were born. Summary

[4]There is no dispute on the facts of this case or on the order that the court is being urged to make; the respondents to the proceedings are the gestational surrogate and her husband and have taken no part in the proceedings except to confirm that they fully support the court making parental orders. The children were joined as parties and are represented through their guardian by Cafcass Legal. The guardian strongly supports the application for parental as opposed to adoption orders on welfare grounds. There is therefore no dispute between the parties themselves. This is not unusual in applications for parental orders, particularly those where there has been a carefully regulated legally binding commercial surrogacy contract in the USA where the children are, as a matter of law, the children of the commissioning parents.

Background

[5]The Applicants are D who is the commissioning and biological father and G the commissioning mother. It is not necessary to set out the full background of this case and, in particular, the history of the Applicants’ attempts to have a family without the assistance of a gestational surrogate except to say that they were unable to have children carried by the commissioning mother. Having decided on California, because of the considerable experience and sound regulatory framework in surrogacy, they approached a well established agency in Los Angeles and were matched with the 1st Respondent. The Applicants took legal advice from an attorney experienced in reproductive law. They were advised that the commissioning father would be the biological father of any child born to the surrogate and that they would be the legal parents of the child in the US. They did not take advice in the UK nor was it suggested they should do so by any of the professionals that they were in contact with in California.

[6]A was born in October 2006 following IVF using a donor egg and the sperm of the commissioning father. Under Californian law and following a court order of the Superior Court of California dated 18th October, 2006 A is legally the child of the Applicants. His birth certificate records the Applicants as his parents. A was granted a US passport in December 2006 on which he travelled to the UK with his parents (under US law). He was granted a UK passport on 30th January 2007.

[7]A had been born prematurely and was referred to a specialist paediatrician by the family GP. The fact that the history of his conception and birth was openly divulged by the Applicants can be seen from his medical records. Similarly whether a UK passport should have been granted or not it was and all the circumstances of A’s birth and travel to the UK were disclosed when the application was made. No professional who dealt with A (or indeed with B) ever raised any questions regarding the Applicants’ legal status as parents.

[8]B was born in April 2009, again following IVF to the same gestational surrogate. Before she was born an order was made in the Superior Court confirming the Applicants as her legal parents and in accordance with Californian law they were named as B’s parents on her birth certificate. Once again a US passport was issued and B entered the UK on that passport and was issued with a British passport.

[9]The two children have grown up with the Applicants who have been their parents in every sense since the day they were born. I have read about the children not just in their parents’ statements but in the thorough, careful and sensitive report of the children’s guardian, John Power, the medical reports prepared about both children and the applicants, and the two s44 (ACA 2002) Annex A reports prepared on behalf of H County Council in respect of the adoption application. The children have been brought up openly in the knowledge and understanding of where they came from and how they were born to a surrogate as their mother could not carry them and that their father is their biological father. G explained to me in oral evidence the sensitive, yet open and age appropriate way, she had told the children about their genetic and gestational history. They know the respondents as both families have maintained a friendship by telephone and email since the children were born.

[10]The children are aware of this application and that their parents had applied for an adoption order before the application for parental orders was made as they were seen by the social worker who prepared the Annex A reports. As she said “[D] and [G] are [the children’s] parents in every sense other than legally. [They] have lived with them since birth and they have met all [their] physical and emotional needs. The referees, the head teacher of the children’s school and my observations all confirm that the children view [D] and [G] as their parents.” Their guardian says simply “They are palpably attached to their intended parents.” And “Observably these children feel loved, secure and wanted by the Intended Parents who less loftily they know as their mum and dad.”

[11]A who as the elder child has a greater understanding of what is happening has expressed a clear preference for a parental order being made rather than being adopted; which he explained as having some stigma attached to it. He has a close friend who is adopted and A is aware that he, unlike his friend, is the biological child of his parent and that both parents arranged to have him “made”.

[12]Overall I have a great deal of evidence concerning the background about the children and their parents; unprecedented in terms of an application for parental orders as the thorough Annex A reports would not usually be available. I have no doubt at all that these children are beloved and happy children who have had exemplary care from their parents D and G.

[13]At my direction the Applicants filed statements about why they came to make these applications so late. I heard their oral evidence. I was impressed by both applicants as witnesses. G in particular came across as a most emotionally intelligent parent who was attuned to her children. Her description of the children and their wishes and feelings was heartfelt and insightful, without being in the least sentimental. I was most struck by her explanation of the children’s story and how they understood their place in their family; that their parents had made them travelling half way round the world to do so. G told me that the children had their story and that to make adoption orders would alter it, adding what she called a “sub-section”; that it might come up and be an issue at critical times in their future lives and would be in contradiction to who they are in their family and how they came to be here.

[14]Both D and G described how they found out that the children were not legally their children in this jurisdiction as they had thought. As D said they had no idea that they were not the children’s legal parents under UK law. I accept that they had researched surrogacy in the USA and that nothing either in their enquiries prior to embarking upon surrogacy agreements, during the process or afterwards had alerted them to the need to apply for parental orders in this country. There is documentary evidence that they sought and took legal advice in the US and that they took all the appropriate steps to confirm their parentage in the USA. The advice they were given by their US attorney did not extend to the UK and as legal parents in the US they believed they would have similar recognition in the UK. That they were entirely open about their position is evident from the documents they filed in support of their application not least from the medical reports. The straightforward way in which they applied for and were given UK passports for the children supported them in their belief.

[15]It was not until 2012 when D was reading an article in a newspaper about a family in a similar situation involving an international surrogacy case that the applicants realised that they were not the children’s parents in law. As their joint statement reads “It did not occur to us that we would have any difficulty with UK law until in mid 2012 D saw a newspaper article about UK parents who had gone overseas for surrogacy. The article referred to the fact that in such cases intended parents needed a parental order within 6 months of returning to the UK after the birth of a child through surrogacy. We were concerned to read this and started to worry that perhaps our legal position was more complicated than we had thought.” They took steps in early 2013 to regularise the children’s status by seeking advice and were advised that they could not apply for parental orders because of the time limit imposed in s 54 of the HFEA. They then contacted H County Council as the first step in applying for adoption orders as they were advised that they were the only orders that the court could make.

[16]I have considered the evidence filed by the applicants and their oral evidence with care and I accept that they are, as D has said, responsible people who care deeply about complying fully with the law in all respects. I accept their evidence that they did not know that because they were the legal parents in the USA where the children were born it did not extend to the UK. Indeed when they took advice before A was born they could not have had any way (nor could their US attorney) of foreseeing the decision in Re X and Y

[2008] EWHC 3030 (Fam)

which was the first international surrogacy case which decided that a parental order was needed following an international surrogacy arrangement.

[17]In keeping with their care regarding their children’s legal status, when they found out that the children should not have been issued with UK passports they applied for and were granted UK citizenship for both children in June 2014.

These proceedings

[18]The application for adoption was issued on 23rd June 2014. After they had issued the applications in June 2014 the case came to court for the first directions appointment on the 8th September 2014. This court was aware that Sir James Munby, the President of the Family Division, was to hand down his judgment in Re X regarding the time limits for applications to be made under s 54, so at that hearing I gave permission for the applicants to apply for parental orders depending on the outcome of that judgment.

[19]The President handed down his judgement in Re X on the 3rd October 2014. The s 44 ACA Annex A reports, which were very favourable and supportive of the applications for adoption orders, were completed on the 6th October 2014 and on that date the Applicants wrote to the court to change their application to one for parental orders.

[20]The application for adoption remains extant, but as set out above the court is being asked to make parental orders in preference to adoption orders. In order to do so I will first briefly consider whether all other requirements of s 54 of the HFEA 2008 are met by the applicants.

Law

[21]There is no dispute as to the law in respect of parental orders; parental orders are governed by s 54 of the HFEA 2008. Parental Orders can only be made by following the provisions of s 54 of the HFEA 2008 and Part 13 of the Family Procedure Rules 2010 (FPR 2010). The 2010 Regulations which accompany the Act came into force in April 2010: paragraph 2 and schedule 1 of the Regulations apply s1 of the Children and Adoption Act 2002 to Parental Order applications so that the child’s welfare must now be the court’s “paramount consideration... throughout his lifetime”. To grant a parental order, the court must be satisfied that all the relevant conditions in s54 HFEA 2008 have been met. The application for a Parental Order requires the same care and caution as an application for adoption and the requirements for the making of a parental order should not be dispensed with: Re D and L (Surrogacy)

[2012] EWHC 2631

; G v G (Parental

[22]In respect of the s54 criteria I am only concerned with s54 (3) and s54 (8) as I accept that all the other requirements are met and for the following reasons which I shall now set out. Section 54(1) HFEA 2008 is met, the children were both carried by the 1st Respondent, a gestational surrogate mother, following IVF treatment which involved the placing in her of embryos created with donated eggs and sperm from the commissioning father; I am satisfied by the evidence filed which came from the [US] Fertility Center dated 2 December 2014.

[23]Section 54(2) HFEA 2008 is met as the Applicants are married and I have seen their marriage certificate. Section 54(4)(a) HFEA 2008 is met as the children had their home with the Applicants at the time of the application and will continue to be living at that home on the making of any orders. The children have each been in the care of the Applicants since the day they were born. Section 54(4)

(b) HFEA 2008 is met as both the Applicants are domiciled in the UK. They are both British citizens who have lived in England throughout their lives, were born to English parents and I am satisfied from their evidence that England is clearly where they live and intend to remain. Section 54(5) HFEA 2008 is met as both Applicants are over the age of 18.

[24]I am satisfied too that ss54 (6) and (7) HFEA 2008 are met. The 1st and 2nd Respondents consent to these applications. The 1st Respondent as the “woman who carried the child” and the 2nd Respondent, as her husband and the other parent of the child for the purposes of s54 (6) (b) consented by using the procedure provided for under the Family Procedure Rules 2010 Part 13.11. The Applicants sent copies of the sealed applications, C52 acknowledgement of service forms and A101A forms by courier which arrived on 17 November. The Applicants have also written to the Respondents to notify them of the final hearing in January 2015.

[25]The consent of the 1st and 2nd Respondents to the grant of a parental order was given on Form A101A and complied with the requirement that “any form of agreement executed outside the United Kingdom must be witnessed by … (c) a notary public”. Their signatures on Form A101A were witnessed by a notary in their home state in the USA. Obviously these documents were executed more than six weeks after the children’s births. The Applicants confirmed online with their State government that the notary is a registered notary; and I am satisfied by their evidence.

[26]Even if I was not satisfied with the evidence of consent I referred to above it is abundantly clear that the 1st and 2nd Respondents have consistently supported the Applicants being treated as the children’s parents for the past 9 years. Not only did they enter into a lawful surrogacy agreement with the Applicants made under Californian State law on 8 February 2006 which established that they would not be treated as A’s legal parents, they subsequently consented to the court order made on 18 October 2006 and relinquished him into the Applicants’ care. They then repeated the process in respect of the second pregnancy, entering into another gestational carrier agreement in April 2008 and again relinquishing B into the Applicants’ care. They have had a positive and continuing friendship with the Applicants and have never sought to assert anything approaching a parental role in respect of either of the children.

[27]The Respondents were contacted in connection with these proceedings and willingly gave their notarised consent, first to the making of adoption orders and now to the making of parental orders. They were contacted in respect of the adoption application when it was issued in July 2014, and again by the Applicants both prior to and after the directions hearing in respect of the application for parental orders on 28 October 2014. All of this is supported by documentary evidence exhibited to the Applicants’ statement. In short by their actions it is clear that the Respondents currently consent, and have always consented, to the Applicants being treated as the children’s legal parents on a permanent basis.

[28]As the HFEA 1990 was in force at the time of both A and B’s conceptions, under the provisions of s27 of that Act, the 1st Respondent, as the woman who carried the children, remains their legal mother for the purposes of UK law. Section 28 HFEA 1990 makes the 2nd Respondent, as her consenting husband, their father. Further under UK law pursuant to the provisions of s2 (1) Children Act 1989, and as married parents, the 1st and 2nd Respondents also share parental responsibility for the two children notwithstanding the fact that they have no legal status as parents under their own personal system of law in California. Thus the legal status of the 1st and 2nd Respondents in UK law is entirely at odds with the intention and expectations of the Respondents, and places them under legal obligations of which they understood themselves to be entirely divested. The position of the Respondents is one to which the court must give some weight: they entered into an entirely legal arrangement under the laws of their own country. Their aim was to enable the Applicants to have a family, not to extend their own and they would neither expect nor want legal responsibility for the children. Their legal position has also been fully extinguished and expressly so by court order under their own personal system of law in the state of California, USA where the children were born. This is a distinct difference from the position of respondents in any application for an adoption order.

[29]Under UK law, pursuant to s29 (2) HFEA 1990 neither of the Applicants is the children’s legal parent ‘for any purpose’. They can exercise parental responsibility for the children (shared with the 1st and 2nd Respondents) by virtue of the child arrangements order made by me on 8 September 2014, but this only enables the Applicants to care for the children during their minority; it does not extinguish the Respondents’ parenthood/parental responsibility, or make the children full and permanent members of the Applicants’ family, or allow them to inherit under current legislation. This legal position not only does not reflect the reality of the children’s lives, it fails to properly protect them or provide for their future wellbeing.

[30]Commercial surrogacy such as the arrangements entered into by the Applicants and Respondents which are perfectly lawful in the well-regulated regime in California and other States in the USA are not lawful in the UK. Any parental orders made in these circumstances require the retrospective authorisation of payments by the court under s54 (8) HFEA 2008. The Applicants submit that the court can and should authorise any payments which contravene s54(8) which provides: (8) 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,

(d) the making of any arrangements with a view to the making of the order, Unless authorised by the court.

[31]In accordance with the lawful (under Californian State Law) agreements they entered into, the Applicants have paid the total sums of £ 17, 358 (to the Respondents) and £13,143 (to the agency) and £18,298 (to the Respondents) and £5,076 (to the agency) in respect of their two surrogacy arrangements. There is no evidence which points to these payments being made in anything other than good faith and in accordance with the proper law and procedures in California. In each case the actual quantified expenses can be discounted, but some or much of the balance may require the court’s authorisation. I have set out the total sums.

[32]As there is no statutory guidance, previous authorities have set out the relevant framework for the authorisation of payments in this court and I have been referred to and apply namely Re X and Y (foreign surrogacy)

[2008] EWHC 3030 (Fam)

, Re S (parental order)

[2009] EWHC 2977

Jud and Re L (a minor)

[2010] EWHC 3146 (Fam)

. In Re X and Y (2008), Mr

Justice Hedley said at [21] :

“In relation to the public policy issues, the cases in effect suggest (and I agree) that the court poses itself three questions: was the sum paid disproportionate to reasonable 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?” was the sum paid disproportionate to reasonable expenses? were the applicants’ party to any attempt to defraud the authorities?”

was the sum paid disproportionate to reasonable expenses?

[33]And in Re S

[2009] EWHC 2977

Hedley J expanded on this by saying 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.” The second was that “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 the third 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.”

[34]However those two authorities themselves predate the implementation of the HFEA Regulations which came into force in 2010 the effect of which was to make the child’s welfare the paramount consideration; as per Hedley J, in Re L (a minor) at [9], [10] and [12]:

“What has changed, however, is that welfare is no longer merely the court’s first consideration but becomes its paramount consideration. The effect of that must be to weight the balance between public policy considerations and welfare (as considered in Re X and Y) decisively in favour of welfare. It must follow that 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... 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 in Re S (supra) and that it should be known that that will be so.”

[35]Therefore, accepting as I do this interpretation of the law, while it is necessary for the court to consider the public policy matters set out in Re X and Y [2008] and Re S [2009], I do so on the basis that when a child’s welfare demands that a parental order is made it can only be refused in the “clearest case of the abuse of public policy”. I find that none of the concerns raised by Hedley J are an issue in this case. The sums paid to the Respondents and to the agency in this case are well within the amount of payments previously authorised by this court for US surrogacy arrangements. It is worth reiterating that the agency fees were lawful in the California which allows surrogacy arrangement for profit, and they represented standard charges. There can be no suggestion that the payments in this case are ‘wholly disproportionate’.

[36]There is nothing on the facts of this case to suggest that the 1st Respondent’s will was overborne by the payment she received. I accept the evidence filed by the Applicants that the 1st Respondent is a mature and educated woman who as a mother of two children decided to help another couple. In keeping with the regulated process in the USA, regretfully not available in the UK, she was psychologically screened and legally advised before entering into each Gestational Carrier Agreement, and had the support of her husband throughout the process. She and her husband have formed a warm friendship with the Applicants.

[37]On the facts of this case there can be no suggestion that the Applicants have acted in bad faith or sought to circumvent any child protection laws. The Applicants are, as submitted by their solicitor, Ms Gamble, and as observed by the social worker and the guardian, a loving and a committed married couple who entered into their surrogacy arrangement after taking considerable care to comply with the law and having selected a reputable agency which would ensure that the Respondent was well cared for. The Applicants have complied with all legal requirements in California, and were given pre-birth orders for both children confirming their parentage. They have, I am satisfied, subsequently taken all steps to comply with UK law as they perceived it to be and I retrospectively authorise any payments over and above reasonable expenses as I am able to do under s54(8).

Welfare: the court’s paramount consideration

[38]As set out following Re L (above) the approach developed by Hedley J, has subsequently been endorsed by Mrs Justice Theis in A v P

[2011] EWHC 1738 (Fam)

and by Sir Nicholas Wall, the President of the Family Division, in Re X (children)

[2011] EWHC 3147 (Fam)

the children’s welfare is the court’s paramount consideration in this application. The welfare of the child has to be viewed by the court from a lifelong perspective rather than just through childhood and with regard to the welfare checklist (s1 ACA 2002). The welfare of the child is no longer simply one consideration among many, but rather the consideration which should override all others.

[39]By virtue of the Human Rights Act 1998 the court has a duty to read 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 (1979-80) 3 EHRR 230,Johnston v Ireland

(1986) 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 to require 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 (1980) 3 EHRRand Wemhoffv Germany (1979-1980) 1 EHRR. In Odievre v France

(2003) 38 EHRR 871

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 to respect 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 the relationships 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.

Section 54(3): whether the parental orders can be made out of time

[42]The principal issue in this case is whether parental orders can be made even though the applications were not made within six months of the children’s births as required by statue. If it were not for this issue, this application would be a relatively straightforward US commercial surrogacy case. Section 30(2) HFEA 1990 and s54 (3) HFEA 2008 provide that applicants “must apply for the order within six months of the birth of the child”. I must decide whether I can apply the interpretation of the statute as developed by Sir James Munby, President of the Family Division, in Re X

[2014] EWHC 3135 (Fam)

. In his judgment he held that s54 (3) should be read as a directive rather than a mandatory deadline and that the court had the power to extend it where the facts demanded that such a discretion should be exercised. I quote paragraphs [55[- [57]:

“[55] Can Parliament really 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 the result 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.”

[43]In Re X [2014] the President held that the length of delay of two years and two months was a lesser consideration than the consequences to the children of not making a parental order for the child and said at [64]; “In one sense [two years and two months] is a long time, both in absolute terms and when compared with the statutory time limit of six months. And it is a very long time indeed compared with the matter of a few days that were fatal to the appellant in Adesina v Nursing and Midwifery Council

[2013] EWCA Civ 818

[2013] 1 WLR 3156

. But principle demands that I have regard to the statutory subject matter, the background, and the potential impact on the parties if I allow section 54(3) to bar the application. I repeat in this context what I have already said in paragraphs 54-56 above. There are, without labouring the point, three aspects of a parental order which very obviously and very fundamentally distinguish it from the kind of case which the court was concerned with in Adesina. The first is that a parental order goes not to just status but to identity as a human being. The second is that the court is looking, indeed is required by statute to look, to a future stretching many, many decades into the future. The third is that the court is concerned not just with the impact on the applicant whose default in meeting the time limit is being scrutinised but also with the impact on the innocent child, whose welfare is the court's paramount concern. In these circumstances the court is entitled, indeed in my judgment it is bound, to adopt a more liberal and relaxed approach than was appropriate in Adesina. After all, as Maurice Kay LJ recognised in Adesina, what the court is required to do, albeit it is required to do no more, is to secure compliance with the Convention. I would not be doing that if I were to deny the commissioning parents and X access to the court.”

[44]The President made clear that he was not asserting a general principle, and that each case would have to be considered on the particular facts at [65]:

“I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks.”

[45]There is no shying away from the fact that in this case the time which is elapsed is much longer than that which was in the contemplation of the President in Re X. I have already made allusion to the fact that the 2008 Act was not in place when A was conceived and when he was born. In this case, the Applicants did not apply under s30 of the HFEA 1990 for either child within six months of their birth, but have now applied for parental orders for both children under s54 HFEA 2008. The application for A was made 8 years after his birth and the application for B was made 5 years and 5 months after her birth. In considering these applications, the court will therefore need to consider whether the principle established in Re X (2014) can and should be applied to this case. It is their case that the Applicants were unaware of the need to do so; they were in ignorance of the children’s position in law and the considerable difficulties that A and B would face in later life as they were not in law, as in fact, their children.

[46]I am, as I must be, mindful of public policy issues. The importance of adhering to the legislation is the general rule and not one to be easily set aside and the need not to discourage commissioning parents through surrogacy from making applications for parental orders promptly. I must, as a matter of law and as set out above, weigh public policy concerns against the welfare of these particular children. I remind myself again that s1 of the ACA 2002 applies to parental order applications by virtue of the Human Fertilisation and of the Embryology (Parental Orders) Regulations 2010 (regulation 2 and Schedule 1) which provide “The paramount consideration of the court must be the child's welfare, throughout his life”.

[47]That balance of public policy and welfare, as discussed above with reference to the court’s discretion to authorise payments under s54 (8), and considered in Re L

[2010] EWHC 3030 (Fam)

forms part of the legal context of this decision . In Re L [2010] as Hedley J said at paragraph 10 the effect of the application of s1 of ACA 2002must be to weigh the balance between public policy considerations and welfare decisively in favour of welfare and that it must follow that only 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. I can see no reason in law, particularly as there is no prejudice to any other party, why I should not assume a similar approach in respect of any discretion under s54 (3) and apply the paramountcy of the welfare principle - unless the case is one of the clearest abuse of public policy.

[48]As I have said there is no prejudice to any party to these proceedings in considering whether to make parental orders. Quite the contrary the 1st and 2nd Respondents are arguably prejudiced by orders not being made as those orders most closely reflect their own legal status and the lawful, court approved arrangements they entered into at the outset.

[49]It is submitted on behalf of the Applicants and on behalf of the Respondent children that this is patently not the clearest case of the abuse of public policy despite the fact that these parental order applications are significantly longer delayed than those in the application in Re X, as there are no significant public policy concerns related to the Applicants’ conduct on the particular facts. This is a submission that has some force as is set out in the Applicants’ statements, and as I accept, the only reason the applications were not made within the statutory time-limit was because the Applicants did not know that their parentage under California State law was not also recognised in the UK. I have seen evidence from the time that the arrangements were made and I accept that before entering into the surrogacy agreements the Applicants sought legal advice in California and comprehensively complied with all US legal procedures which enabled them both to be recorded as the legal parents of the children on their US birth certificates. I accept that what they said in their joint statement, “It did not occur to us that there would be any UK legal complications so we did not seek advice in the UK, and it was not suggested to us by the US professionals we worked with that we should do so” is a true and accurate reflection of what happened at the time. .

[50]It must be so because at the time both children were conceived (in March 2006 and in July 2008 respectively) the decision in Re X and Y

[2008] EWHC 3030 (Fam)

had not been published (it was published in December 2008)and that in that, the very first international surrogacy case, the judge hearing it, Hedley J, observed that there was no public information available about the legal consequences in UK law of entering into an international surrogacy arrangement. He said at [10]; “None of this [the UK legal complications] was foreshadowed in any of the extensive enquiries the applicants had made before leaving this country, whether on Home Office websites or the information given by the bodies who advised them in the United Kingdom or the information given to them in and through the Ukrainian hospital.” Thus had the Applicants made further enquiries or sought legal advice here before commissioning the conception of A and B, it is most unlikely that the need for parental orders in this jurisdiction would have featured in the advice which would have been given to them.

[51]I add to this, as I must as it forms part of the facts of this case upon which I must base my decision, that the Applicants’ experience post-birth did not alert them to the legal issues regarding the status of the children. The Applicants successfully applied for British passports for both children on their return to the UK. These were wrongly issued by the British authorities but the effect on the Applicants can only have been to support their belief that their status as the legal parents of A and B extended to the UK. (This situation is now rectified by the British nationality registration applications successfully made last year 2014). The Applicants registered the children with their local doctor and health visitor and were open with them about the nature of their conception and birth. They later applied for school places for them in an equally honest and open way and explained about the circumstances of the children’s births to all the relevant authorities. At no time did anyone professional or otherwise give them any reason to doubt that they were the children’s legal parents in this jurisdiction.

[52]I have heard from D and read in his statement that it was not until 2012 he discovered when reading a news article about international surrogacy that the Applicants’ legal status as parents might not be properly secured in this jurisdiction. The Applicants then took expert legal advice and, on that advice, applied for adoption as the only and the best available legal solution. Only when it became clear that the court might have the power to make parental orders rather than adoption orders, which they had always felt were a better solution for their children, did the Applicants apply for the court’s permission to apply for parental orders. D explained in his second statement that; “We made our adoption application as soon as we were able to do so. We did not consider applying for parental orders at this stage because we were advised that the law was very clear that parental order applications could only be made within six months of a child’s birth. Until the President of the Family Division handed down his judgment in Re X on 3 October 2014 we had no opportunity to apply for parental orders.”

[53]The Applicants submit that they have acted in good faith at all times, always set out to protect their children’s best interests and diligently and promptly complied with all legal requirements as they perceived them to be, without any deliberate delay. This evidence is supported by the manner in which they took prompt steps to rectify the children’s UK citizenship. As I have already said I accept that they are “responsible people who care deeply about complying fully with the law in all respects.” There is no evidence before me with which to gainsay this submission.

[54]It is submitted on behalf of the Applicants that even if I was to take narrower an approach to public policy than the one taken by the courts in respect of s 54(8) the Applicants are innocent of any wrongdoing, negligence or bad faith and that there are no public policy concerns associated with the delay on the particular facts of this case, even though the applications are made considerably longer after the children’s births than the application in Re X. I see no reason to adopt a narrower approach. It is further submitted that as it was in Re X so it is in this case namely the making of parental orders will prejudice no one, nor will offend the public interest and the s 54(3) time-limit should be extended to permit these applications.

[55]There is substance to that submission, but before I reach any conclusion I shall consider which order parental or adoption would best meet the needs of these children as in both their welfare throughout their lives is my paramount concern. The parental orders should only be made, following the previous decisions as set out above if they are in children’s welfare. It is the submission of their guardian and the children’s representative Ms Logan on behalf of Cafcass Legal that parental orders are best suited to their welfare needs.

Parental orders or adoption

[56]In many ways in practical terms either parental orders or adoption orders will resolve the children’s legal position by ensuring their rights to inheritance, pension entitlement, financial support in the event of their parents’ separation and all other basic entitlements which flow from them having a legal parent-child relationship with the Applicants. The orders are not the same, however. Nor are they intended to be as a matter of law and public policy.

[57]Parental orders were tailor-made for surrogacy situations as an alternative, albeit comparable, legal mechanism to adoption. The Department of Health Consultation of September 2009 which preceded the implementation of the 2010 Regulations set out government policy in respect of parental orders, including the following:

“The Government recognised that in surrogacy cases, where the gametes of either one or both of the commissioning couple had been used to bring about the pregnancy, the resulting child would be the genetic child of one or both of the commissioning couple. Because of this genetic link, and provided that the welfare of the child was foremost in any decision made about the child, the Government did not feel that the full range of assessments and checks necessary to adopt a child were appropriate.”

[58]The part purpose of a parental order, like an adoption order, is to create a lifelong, permanent parent-child relationship. Indeed s67 of the ACA 2002 (concerning the effect of an adoption order) is applied to parental orders by Schedule 1 to the 2010 Regulations and provides: A person who is the subject of a parental order is to be treated in law as if born as the child of the persons who obtained the order. A person who is the subject of a parental order is the legitimate child of the persons who obtained the order and is to be treated as the child of the relationship of those persons. A person who is the subject of a parental order is to be treated in law as not being the child of any person other than the persons who obtained the order.

[59]I am obliged and required by s1 (5) of the ACA 2002 (as applied) to consider the range of orders available to the court in this case and none, including adoption, provides as complete or as permanent a solution for protecting A and B’s lifelong welfare as that of parental orders, which are specifically designed to give permanent resolution regarding the parenthood of children born through surrogacy. Parental orders create a permanent parent-child relationship throughout the children’s lifetimes which reflect the reality of their particular situation about which they are both already aware. Thus parental orders are explicitly the most apposite orders to be made in keeping with the children’s welfare throughout their lives, and which confer important status and rights over and above parental responsibility.

[60]As I said above, in practice, both parental orders and adoption will protect A and B’s lifelong welfare by:(a) conferring joint and equal legal parenthood upon both the Applicants, thereby ensuring the children’s security as lifelong members of the Applicants’ family and curing their parentless status in the UK;

(b) fully extinguishing the residual parental status of the Respondents under UK law;

(d) making the Applicants financially responsible for the children during their minority. In addition either parental or adoption orders would enable the Applicants to appoint guardians to care for the children in the event of their deaths in accordance with section 5(3) Children Act 1989; currently the Applicants have no legal power to appoint guardians for the children as they are not legal parents.

[61]However in terms of their identity only parental orders will fully recognise the children’s identity as the Applicants’ natural children, rather than giving them the wholly artificial and, in their case, inappropriate status of adopted children. I keep in mind European jurisprudence, as set out above, in respect of their family life and their identity. As the President said in Re X (supra) at [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.”

[62]It is undeniably a basic and fundamental part of these children’s identity as human beings that the Applicant/father is their biological father, and that the Applicant/mother played a full part in the process of their conception having selected an egg donor, as she has herself explained to them and as they have grown up believing. The Applicants were their planned and intended parents from before conception and since the day on which they were born. All of these facts, fundamental to these children’s very existence and identity are far from those present in adoption. Again I quote from the President’s judgment in Re X; “Adoption is not an attractive solution given the commissioning father’s existing biological relationship with X. As X’s guardian puts it, a parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X’s identity; the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents.”

[63]To make adoption orders would effectively deny adequate recognition of the Applicants’ and children’s identity and their right to family life under

Article 8 ECHR

, particularly their established identity, their biological and social ties. There is no doubt in this case that as far as these children are concerned their identity has already been formed as the biological children of their father and the commissioning of their conception and birth involving their mother.

[64]Furthermore this court is mindful of the fact that parental orders are the only orders which will enable the registration of A and B’s births in the UK, as opposed to the issue of adoption certificates. Parental orders will provide them with a registration and documentation which designates a ‘whole of life’ identity as members of the Applicants’ family, consistent with their US birth certificates. In contraposition adoption certificates imply a change of family and wrongly suggest that the children have had a disrupted rather than continuously secure identity within their family, the only family they have ever known. This distinction was emphasised in CC v DD

[2014] EWHC 1307

(Fam), by Theis J who said that a parental order provides the child with “a British birth certificate confirming his parentage, which better reflects his identity as a child of reproduction rather than an adopted child.” The parental order, therefore, better meets the children’s ‘lifelong’ welfare, and involves a whole of life perspective extending, not just forward, but also retrospectively from birth until death.

[65]I have been reminded that A and B from time to time throughout their lives will be asked to produce their birth or adoption certificates. It is a key part of UK policy which is intrinsic to the law regulating assisted reproduction that the circumstances of conception should remain private; persons conceived with the aid of an egg or sperm donor do not have that fact recorded on their birth certificate in the UK. This essential logic is extended to parental orders when birth certificates are issued after the order is made. A and B are the children of assisted reproduction and not adopted children and they would be denied the rights of privacy afforded to other children conceived through surrogacy and gamete donation if an adoption rather than parental orders are made.

[66]As their father, D, says in his second statement “Applying an ill-fitting and inaccurate legal solution such as an adoption order has the potential to undermine A and B’s sense of identity. Both children are fully aware, in an age appropriate manner, of how they came into the world… However, the children feel very secure and display high esteem derived from being A and B…. When we embarked on having a family in the most responsible and ethical way we never imagined that our children would be subject to adoption. We are most anxious to avoid any issues that this may raise for them as they grow up”. G says in her second statement “I was delighted when we received news that it might be possible for us to apply for parental orders rather than adoption orders for the children as I know that this will mean a lot to A and B as they grow up. Explaining the reason why Mummy and Daddy had to adopt them was a conversation I was prepared to have and would not avoid in keeping with our approach thus far. However, I know that this fact would crop up at various times in their lives when they might mind it very much and it may put them at a disadvantage at important times for them – adolescence, marriage, birth of their children, bereavement and inheritance.”

[67]Their Guardian says appositely in his report at paragraph [47]:

“Whilst I acknowledge that the application made in respect of the children is outside the usual 6 month timescale, it is my view that the alternative i.e. an adoption order, would not be a suitable remedy because it’s a square peg for a round hole. D is the children’s biological father, they were conceived within a consensual surrogacy arrangement and the bespoke, tried and tested legal instrument in this jurisdiction, for regulating the legal status of children born in such circumstances, has been a parental order.”

[68]Further I was reminded and note that parental orders were created because Parliament, when debating the HFEA 1990, decided that it would be inappropriate for biological parents to have to adopt their own children. The very existence of parental orders is a testament to the decision of Parliament that adoption orders do not befit children born through surrogacy. Parliament provided for parental orders to be the legal remedy designed for surrogacy situations and it is a contrivance to use adoption as an alternative solution unless there is no other option within the court’s discretion.

[69]To make adoption orders the court would have to exercise its discretion in deciding possible public policy restrictions contained in s83, s92 and s95 of the ACA 2002; namely under s 83 the restriction on bringing children into the UK for the purpose of adoption; under s 92 the restrictions on privately arranged adoptions; and, under s95 the restrictions of payments for adoption. All of these arguably apply in this case so the alternative of making adoption orders is not free from complication and issues of public policy; adoption is not a straightforward alternative remedy.

Conclusions

[70]It is in the interests of the welfare of these two children throughout their lives that the order that this court makes is the one that best fits their needs and, for the reasons that I have set out in full above, their lifelong welfare is best met by making the orders which were enacted by Parliament for children in their circumstances, namely parental orders.

[71]The time that has elapsed before the applications were made very considerably exceeds the limit of 6 months provided for in s54(3) of the Act. I have had regard to the statute, to the purpose for which it was enacted and the impact on the parties, the children in particular, if the application is not allowed despite the protracted delay. It would be manifestly unjust to give a delay that was innocently wrought, even a very long one such as this, greater weight than the welfare of these children. The children know who they are and have been brought up in that knowledge. The jurisprudence in this area is dominated by statute and by case law, some of which I have set out above, which gives emphasis to the child’s welfare throughout her life. I have decided to make parental orders as the orders which best meet the children’s needs and meet the justice of this case.

Order

Revocation)

[2013] 1 FLR 286

Cited in 12 later judgments

and 3 more of the most senior