XZ & Anor v Y & Ors

On the 1^st August 2014 applications were made for parental orders under s 54 of the Human Fertilization and Embryology Act (HFEA) 2008 in respect of twins (L and M) born to a gestational surrogate in India on the 5^th May 2014. The Applicants had entered into a commercial agreement through a surrogate agency and clinic in India. To allude to words used previously by Mrs Justice Theis this is a case which again raises some of the difficult questions regarding the law of surrogacy, particularly in cases involving surrogacy arrangements made in another jurisdiction. The consequences of what the court has to decide are of fundamental importance to the parties and the children, not only because it concerns orders which determine who the legal parents of these young children are, but also because it determines the individual legal status of each child throughout their lives.

The difficulties that were encountered by the court in this case are illustrative of the complex issues seen in cases with an international element as a result of international surrogacy. These difficulties are not novel and mirror some of those found in cases of inter-country adoption; they arose in cases under the 1990 HFEA. Following the decision of Mr Justice McFarlane (as he then was) in Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814; [2008] 1 FLR 1047, there should have been some consideration given at the first directions appointment for the application for parental orders to have been transferred to be heard by a High Court Judge. The Judges of the Family Division have developed an expertise in dealing with international surrogacy and this judgment will give some guidance as to the practice that should be followed by the Family Court in future. Paragraph [73] sets out the guidance on the allocation of surrogacy cases where the child is born overseas that has been approved by the President of the Family Division and is to be followed in all cases where a child is born abroad as the result of a surrogacy agreement and a parental order is sought. In addition the judgment contains reference to the advice given to parental order reporters by Cafcass and the regulations contained in the Family Procedure Rules (FPR) 2010 and relevant Practice Directions (PDs). Further guidance is given here at [86] concerning the need for parental order reporters to see the child with the applicants as part of their investigations when preparing their report concerning the child’s welfare.

In Re G the judgment concluded [52 c)] that the issues raised in foreign surrogacy were of a similar standard and complexity to those raised in cases of inter-country adoption and so there were strong grounds for any parental order application that involves an international element being transferred to a nominated inter-country adoption county court or to the High Court at the first directions hearing. This case predated the 2008 HFEA and the formation of the Family Court. During the intervening period (before the Family Court came into being in 2014) the practice had evolved in London and in some family courts in England and Wales whereby all cases involving an international surrogacy agreement were transferred to be heard in the High Court at the outset of the proceedings. In this case the applications were not listed to be heard by a judge of the Family Division for a full eight months (the order itself transferred the case to the High Court but following the formation of the unified Family Court this was erroneous).

The practice of transferring international surrogacy cases in the past was consistent with Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, which assigned all proceedings under s30 of the 1990 Act to the Family Division. For the purpose of allocation at present rule 13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 which reads that the court should, at the first appointment, “consider, in accordance with rule 29.17, whether the case needs to be transferred to another court and, if so, give appropriate direction” and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 (in force from 22 April 2014 on the formation of the Family Court) which provides that proceedings pursuant to s 54 of the HFEA 2008 in which the child’s place of birth was outside of England and Wales should be heard by a Judge of the High Court, Family Division, supports this practice. The practice of allocation to a Judge of the Family Division is by no means uniform and it is intended that the guidance in this judgment should provide for uniformity of practice in future.

Parental orders were granted and the parties were made aware of that decision in July 2015 with reasons to follow.

Outline of facts The facts in brief are as follows; this case concerned twin girls born to a gestational surrogate (Y) as a result of in-vitro fertilisation following a commercial surrogacy agreement entered into in India between Y and the applicants who are British citizens domiciled in England. Y has no biological connection with the children and the Applicant and commissioning father is their biological father. The non-identical twins were born on 5^th May 2014 and the application for parental orders was issued on 1^st August 2014; however, the infants remained, effectively, stranded in India because of an inordinate delay in the issue of their travel documents and did not travel to the UK with the applicants until May 2015, by which time they were just over a year old. The situation for them and for the commissioning parents was increasing parlous as time passed placing a significant and increasing financial and emotional burden on the family as well as denying the children the opportunity to develop the important initial bond that babies need.

Despite the difficulties that the children and the applicants were facing, the case was not allocated to a specialist High Court judge and it is not unreasonable to suggest, as was later submitted by counsel for the applicants, the children’s counsel, and on behalf of Cafcass Legal not only that it should have been, but that the fact it was not contributed to the delay in the resolution of their difficulties. The case gave rise to many potentially complex legal issues that are not uncommon in applications for parental orders for children born abroad as the result of commercial surrogacy agreements which are discussed below, over and above the consideration of the provisions of the HFEA itself.

Outline of Guidance In this judgment the court has given guidance on the allocation of cases of international surrogacy; specifically that all applications for parental orders when the child or children are born outside the UK are to be allocated (not transferred) to be heard by a judge of the High Court. See paragraph [73] below.

The guidance contained in this judgment extends to the role and investigations to be carried out by the parental order reporter; specifically that, in order to complete the parental order report, the child must be seen with the Applicants by the reporter to enable her/him to assess the child’s welfare satisfactorily, in all circumstances except if there is judged to be sufficient independent evidence.

A chronology was prepared by the parties for the final hearing of this case on which I have drawn here; it illustrates the delays in the immigration procedure in India and in the conduct of these proceedings. The 1^st Applicant, XZ (the commissioning father) was born in 1971 and the 2^nd Applicant, ZZ (the commissioning mother) was born in 1976. They are both British born citizens of Indian/Sikh ethnicity. They married in 1999. The Applicants found that they were not able to have children despite intervention so decided to have a family by surrogacy. The 2^nd Applicant’s first statement in these proceedings set out the difficult background to their decisions to arrange for surrogate births for their children, she suffered from severe endometriosis and infertility and underwent nine unsuccessful attempts at IVF. In May 2010 she was diagnosed with multiple sclerosis, a chronic illness with an unclear and uncertain progression and prognosis.

Their first child K, a girl, was born on the 5^th August 2011 having been carried to her birth by a gestational surrogate in India. There was a parental order made in respect of K by Mr Justice Moor at Birmingham High Court District Registry on the 28^th May 2012.

In October 2012 the Applicants contacted Surrogacy Abroad to enquire about arranging a second surrogacy birth and signed a contract with the agency; they signed a surrogacy agreement with Surrogacy Abroad and with Y. Very sadly Y’s husband died in May 2013 so the agreement was put on hold. On the 22^nd August 2013 the Applicants signed a further surrogacy agreement with Y who then underwent fertility treatment using a donor egg and the sperm of the commissioning father.

As the child born as a result of the surrogacy would need a British passport to come to the UK to join his or her family the Applicants made some enquiries to find out what documents would be required; in addition on the 1^st May 2014 they also went to the Indian Consulate in Birmingham to notify them of the expected birth and the surrogacy agreement as required to enable them to get an Indian medical visitor’s visa as commissioning parents. L and M were born on the 5^th May 2014. The Applicants travelled to India within a few days of their birth and met Y. They obtained legal advice in India confirming that the surrogacy agreement was legal under Indian law. Indian birth certificates were issued for the twins naming both Applicants as their parents.

On the 22^nd of May 2014 the Applicants returned to the UK without the children as they had not been issued with British passports. At the end of May 2014 they received a package from the British High Commission returning their passport applications. The commissioning mother returned to India.

While in India in June 2014 Y signed a consent form, consenting to the Applications for parental orders and for the Applicants to apply for British passports for the children. A member of staff from the agency and the commissioning mother were present. The forms were translated from English for Y by a translator and by the commissioning mother, who ensured that Y understood their contents. On the 17^th June 2014 the Applicants applied for British passports for the twins at the British High Commission in Delhi. Their passports were not issued until May 2015. It remains far from clear why there was such a long delay for in the event once the case was allocated to be heard by a judge of the High Court and orders were made by me directed at the FCO and the High Commission in Delhi the twins were able to travel within a month. There was, it appears, to have been some doubt about the authenticity of the death certificate for the husband of Y (the 1^st respondent and the gestational surrogate mother) in India raised by the personnel of the High Commission in India and those at the relevant passport office in the UK; later they raised questions about the identity of Y herself; by the time the passports were issued there were not any substantive reasons given for the earlier obstructions and for the considerable delay.

Before the children were finally able to travel to the UK it was a concern of this court that an issue of public policy had been raised namely that the applications for parental orders should not be used or appear to be used, wholly or in part, to seek an advantage in acquiring British citizenship or to circumvent immigration law. It is clear that at the time the commissioning parents in this case issued their application that was not the purpose of that application and that they had acted in good faith. The question was once they had encountered difficulties with immigration issues, could the Court properly make an order so as to enable the twins to acquire citizenship and bypass those difficulties even though the delays were directly and significantly affecting the welfare of the children.

On the 1^st August 2014 the Applicants issued applications for Parental Orders at the Family Court. The babies were, of course, still in India. Under the law of England and Wales (s33 of the HFEA 2008) the gestational surrogate Y was their mother and their biological father and applicant in this case would be regarded as their father without parental responsibility. The twins had to remain in India being cared for by nannies, because the applicants had their home with their child in England; their employment and means of support was in England; and, as they were domiciled and resident in the UK, they could not remain in India with the twins for prolonged periods of time. I shall return to the situation regarding the long delay in issuing passports for the twins so they could travel to the UK with the commissioning parents below. On 20^th August 2014 the first appointment took place in the absence of the parties before District Judge Maughan who made an order for the Applicants to file some documentary evidence of the surrogacy agreement and listed it for a first directions appointment on 25^th September 2014 at 10.30 am before Her Honour Judge Hindley QC at the Family Court at Birmingham. At this stage the case should have been allocated to be heard by a Judge of the Family Division.

On the 31^st August 2014 the 1^st Respondent (Y) signed an acknowledgement of service and confirmed her consent to parental orders being made. The Applicants filed a statement of service with the court on 10^th September 2014. The following day, 11^th September 2014, the district judge made a second order appointing Ms Jennie Dawe of Cafcass to be the parental order reporter for the twins.

The case came before Her Honour Judge Hindley QC; the Applicants attended the hearing in person as did Jennie Dawe, Parental Order Reporter. The twins remained in India as they had not been granted travel documents by the High Commission in India. Ms Dawe, concerned for the welfare of the babies, applied for them to be joined as parties but the judge refused as she said she was concerned about the availability of legal aid for the children because they were not in the jurisdiction; no further reason was given. It is no longer an issue here but in the light of the expressed view of the parental order reporter and the provisions of FPR 2010, PD16A Part 4 Section 1 7.2 (a) would have applied along with (f) and (g).

“7.2

The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order –

(a)

where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party;…

(f)

where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;

(g)

where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court…

Orders were made which began with recitals confirming the attendance of the Applicants in person and of Ms Dawe, as the Parental Order Reporter appointed. It was further recorded that the twins were the subject of applications pending in India and that the Court had been informed that it was expected that visas would be available by 9^th October 2014 to enable them to enter the UK. The judge gave directions for the Applicants to file their evidence and for the parental order reporter to file her report by 2 pm on 25^th November 2014. The case was ordered to be listed for final hearing or further directions at 10.00 am on 3^rd December 2014 before Her Honour Judge Hindley QC at the Family Court in Birmingham.

The date on which the passports were expected to be available came and went and the twins remained in India. The Applicants decided to take matters further and had a meeting with their MP on the 22^nd of October 2014. The MP in turn received an email from a Ms Zoe Parker who told him there was no timescale in place for issuing the passports. On 7^th November the Applicants received a phone call from the High Commission in Delhi to the effect that the passport office in Liverpool had advised that the time for the decision was “short”.

Ms Dawe had, meanwhile, been preparing her Parental Order report as ordered. She prepared a report dated the 9^th November 2014 in which (at paragraph 5) she confirmed her view that the children needed to be in the UK for her to be able to carry out and complete her welfare report. To try to progress matters she had contacted Cafcass Legal, who had provided her with the name of a Children’s Policy Officer to assist in liaison between government departments.

On the 12^th November the Applicants, who were due to return to India to be with their twins, were contacted by the High Commission and told that they would have further communication in a week about the passport applications; as a result they delayed their return to India. On the 22^nd November with no further indication of when the twins would be able to travel to the UK Ms Dawe emailed the court to say that in her view the delay in obtaining the passports was becoming a child protection issue. The twins had had to remain in India cared for by strangers as their parents had to travel to the UK to look after K, to work and to try to advance the passport applications.

On the 1^st December 2014, the case came before Her Honour Judge Thomas who made an order as a result of the Parental Order Report of the 22^nd November. It seems that neither the Applicants nor Ms Dawe attended court and that the order was made in the absence of the parties; nothing to the contrary is recorded on the order. The judge made an order vacating the final hearing listed on 3^rd December 2014 and listed the case for final hearing or further directions on 5^th January 2015 before herself at the Family Court at Birmingham. The order included recitals in the following terms:

Ms Dawe was able to communicate with Jonathan Wharton at the Passport Office on the 8^th December 2014 and set out the content of that communication in her second Parental Order Report dated 17^th December 2015. The application had not progressed and the information she was given amounted to no more than a complaint about miscommunication to the effect that her enquiry should have been sent to the Treasury Solicitor at the Passport Office and not to the Children’s Policy Officer. On the 18^th December 2014 Mr Wharton wrote to Ms Dawe to say that the British High Commission in Delhi were “still uncomfortable with the documentation” and to suggest a “clear” route to nationality under the British nationality Act.

On the 19^th December 2014 Her Honour Judge Thomas made a further order; again it would seem in the absence of the Applicants (this is the belief of the Parental Order Reporter Ms Dawe and there is no record of their attendance). The judge made an order which repeated the recitals recording the court’s concern at the detrimental effect that the delay caused at the British High Commission was having on the welfare of the children. The case was relisted for final hearing or further directions on 5^th February 2015 (time estimate 1 hour) before Her Honour Judge Thomas.

On the 6^th January 2015 the Applicants received a letter by email from Maxine Pritchard from Liverpool Passport Office (HMPO) which said that they have been unable to authenticate the documents provided in respect of the twin’s applications. It referred specifically to the death certificate for Y’s late husband; Ms Pritchard also advised the Applicants to register the children as British citizens under s3 (1) of the British Nationality Act 1981. On the same day the Applicants received an email from Jane Higham (HMPO) confirming that the issue was the death certificate. The next day the Applicants sent Ms Dawe a photograph showing the preparation of the surrogate’s husband for cremation in keeping with his religious rites. The Applicants received emails from the Complaints Resolution Unit of HMPO on the 20^th January 2015 which did not resolve the difficulties. The Applicants emailed Ms Higham at HMPO with details of an additional death certificate, which had been registered on-line, on 5^th February 2015, and on the 7^th February they provided her with the name of the person who had issued the death certificate.

On the 5^th of February the Applicants attended court before Her Honour Judge Thomas in Birmingham, along with Ms Dawe. The judge made another order on which it was recorded that except for the completion of a report by the Parental Order Reporter which required the children to be present in the jurisdiction the case was ready for final hearing. The recitals to the order set out the predicament of the children stranded in India and of the financial and practical effects of their delayed travel on Applicants whose home is in England and that the Court recorded “that the delay in issuing passports for the children…is having a significant detrimental effect upon their welfare.” The court order also recorded that The British High Commission in Delhi had required a verified death certificate in respect of the Respondent’s husband and that this had been provided and that no further response had been received from the Passport Office in Liverpool to the Applicants’ enquiry about passports for the children after a letter dated the 8^th January 2015. The judge joined the children as parties. The case was again listed for a final hearing, or further directions, this time on the 3^rd March 2015.

On the 12^th February 2015 when the solicitor for the children spoke to Ms Higham, at her office in Liverpool, it seemed to be clear during that conversation that the issue causing the delay was the death certificate of Y’s husband. The children’s solicitor followed this conversation up by a letter dated 13^th February 2015; a letter was also sent to the British High Commission. On the 15^th February 2015 the Applicants were informed by British High Commission in Delhi that they wanted the commissioning father personally to hand in the death certificate.

Meanwhile on the 12^th February 2015 the commissioning father flew to India to be with the twins, care for them and to try to sort out their passports. The Applicants sent a further letter to HMPO regarding the death certificate, followed by a copy of the death certificate on the 19^th February 2015, which was also sent to the High Commission in Delhi. On the 20^th February Mr Sunandan (who had been dealing with the application at the High Commission) informed the commissioning father that his personal attendance with the death certificate at the High Commission was no longer necessary, but on the 25^th February the children’s solicitor became aware that the High Commission in Delhi was requesting to see the commissioning father for reasons that were not clear. As a result of her contact with Ms Higham at Liverpool HMPO the children’s solicitor wrote to the court and requested an adjournment as it seemed that the issues over the passports would be resolved within weeks. The commissioning mother left England for India, with K, on the 1^st March 2015 to be there to bring the twins home. The commissioning father had moved to the village of S in the Punjab.

At this point, as observed by the children’s counsel in her written submissions, matters had reached crisis point. In February 2015, the commissioning father had travelled to India to care for the children as the nannies employed by the applicants were no longer available and it was not a financially viable situation for the family to continue with the expenses that arose as a result of the arrangement that had been put in place for what was supposed to be a temporary solution to the twins remaining in India. The Applicants relied on the income of the commissioning father and being in India compromised his ability to earn the money necessary to support the family. He had no choice; had he not returned to India it is possible that the children would have had to have been placed in a charitable institution or orphanage. In addition to the concern of the Applicants and Ms Dawe the twins were forming attachments with the nannies because of the amount of time they had been caring for L and M. They had all been confined in their rented apartment because of a perceived fear on the part of the Applicants of the children being abducted. The commissioning mother was unable to stay in India for more than a few weeks at a time as her medication for multiple sclerosis (which is supplied by her healthcare company) was not available for her in India.

The High Commission in Delhi arranged an interview with the Applicants at short notice on the 2^nd March 2015. They were told that there was now concern over the identity of the surrogate. The following day on the 3^rd March 2015 Her Honour Judge Thomas made an order adjourning the final hearing in the absence of any of the parties with reference to the letter of the 27^th February from the children’s guardian Barbara Carter [sic], and recording that the Applicants were in India and that “save for completion of the report by the Parental Order Reporting Officer, which requires the children to be in England and Wales, the matter is ready for a final hearing.” Once again the judge expressed the court’s concern that “the delay in issuing the passports for the children…is having a significant detrimental effect upon their welfare.” The case was re-listed for final hearing or further directions on 30^th March 2015 before Her Honour Judge Thomas, and Cafcass and the children’s guardian were given permission to disclose this order as is required in any attempt to resolve the issue in respect of the children’s passports.

On the 10^th March 2015 the children’s solicitor spoke to Mark Edmundson at Liverpool HMPO and was told that the passport office was still waiting for verification of the death certificate and for a transcript of the interview with the Applicants; Mr Edmundson said he was hoping for a decision the following day. The following day the children’s solicitor was told that Ms Dawe understood that the application for passports was likely to be refused as it was alleged that the documents relating to Y were fraudulent. This information was, indeed, followed up by a telephone call the next day 12^th March 2015 from Jonathan Wharton (the Head of the Passport and Nationality Policy Team at the High Commission) to the children’s solicitor in which he said that HMPO were still not satisfied with the documentation relating to the death and that there was now a further issue as to the identity of Y herself.

In response to a letter from the children’s solicitor dated 19^th March 2015 Mr Wharton suggested, by email, that the solution was for the Applicants to adopt the children. This response would seem to betray considerable ignorance of both adoption and surrogacy law and policy. As a result of these communications the children’s solicitor wrote to the court to confirm that the passport applications remained an outstanding issue.

On the 30^th March 2015 Her Honour Judge Thomas again made an order in response to correspondence in the absence of the parties. In her order the judge referred to a letter from Barbara Carter, the children’s guardian [sic], dated the 24^th March and recorded the commissioning father was in India “attempting to sort out the necessary procedures that are required to secure British passports for the children” and, again, recording the detrimental effect of the delay on the children’s welfare. The applications were adjourned until 8th April 2015 before Her Honour Judge Thomas.

On the adjourned hearing date of 8^th April 2015 the commissioning mother alone attended the hearing before Her Honour Judge Thomas, as did the children’s solicitor and the Parental Order Reporter, Ms Dawe. There was an order made which transferred the proceedings to the High Court of Justice and for the applications to be listed for directions before me at the Royal Courts of Justice on 23^rd April 2015. The judge had the following recitals placed on the order; that the “British High Commission in India has raised issues in relation to the verification of the surrogate mother’s husband’s death and has now raised concerns about the verification of the identity of the surrogate mother herself”; and the “Applicants have informed the Court that they have supplied all possible documents to assist in the verification of the identity of the surrogate mother herself.”

On the 17^th April 2015 the Applicants’ immigration solicitor submitted applications to register the children as British citizens with the Home Office. The family was in an increasingly difficult position. The conditions at the new property were not ideal; there was no air conditioning, intermittent power and communications and the commissioning father was left on his own caring for two very young children with no support. By April, when the hot weather was set in they were living in reduced circumstances in very high temperatures. The commissioning mother was very concerned about the real strain her husband was under as a sole carer and there remained a fear for them both that if the situation was not resolved the children would have to be placed in a charitable institution or orphanage.

The case first came before me at the Royal Courts of Justice on 23^rd April 2015 and again on 18^th May 2015. On 23^rd April I was invited on behalf of the applicants to make parental orders without the children being present in the jurisdiction and without a parental order report having been prepared. Ms Dawe said through her counsel that, as a last resort, she was prepared to give oral evidence in support of parental orders based on their care of their daughter K and the investigations she had been able to carry out up to that point. I could not accede to their request to deal with the application without the children being seen by Ms Dawe and, on the basis of the positions of the parties as put on that date, it seemed that in part at least that the parental orders were being sought to try to circumvent the difficulties in bringing the children to the UK as British Citizens and on British passports. Ms Dawe considered the family’s circumstances seemed exceptional and both she and the Applicants felt that no other solution was available. In those circumstances, Cafcass Legal was invited to act as advocate to the Court, given the implications of such a course of action and questions of public policy which arose. Cafcass Legal were contacted by telephone that day and, I am told, acceded willingly to the request.

On the 23^rd April 2015 I made the following order with recitals:

The children’s solicitor wrote to the British High Commission in Delhi on the 29^th April 2015 and the order was served on them. On the 8^th May 2015 the children’s solicitor received a response from Mr Wharton again suggesting adoption as a solution; this response was, seemingly, out of step with the decisions being made elsewhere for on the 13^th May the Applicants were informed that the Home Office had approved the application and that the children had been registered as British citizens.

To return to events in chronological order: on the 23^rd April 2015 the court requested the Foreign and Commonwealth Office (naming Consular Officer Sunandan Sinha in the order) to confirm in writing with reference to any evidence relied on by the FCO the reasons why the citizenship and passport applications made for the children had not been granted; there was no formal refusal letter containing written reasons for refusal sent to the applicants. It is contrary to the Home Office Nationality Instruction, Chapter 4: Automatic Acquisition by Birth: Outside the United Kingdom requiring case officers to write to applicants giving reasons for any refusal to accept claimed citizenship or to issue a British passport. Although Mr Wharton had made oral reference about the Passport Office’s concerns at documentary evidence presented for the applications for the twins’ passports to the children’s solicitor and the commissioning mother neither he nor any other official had provided the written refusal which would, in turn, provide the written basis on which the Applicants could apply for judicial review of the refusal or, indeed, to respond to any official ‘concerns.’

It would seem to have been as a direct result of this court’s intervention that the first formal explanation for the delay/refusal was forthcoming in the form of the letter from Mr Wharton, as Head of Passport Nationality Policy which referred to some, but not all of the evidence, presented by the Applicants to the effect that the FCO was satisfied that the commissioning father is the genetic father of the children but was unable to confirm the identity of the surrogate mother or her marital status although it was accepted that Y’s late husband’s re-issued death certificate is issued by the correct authority, it was said that the circumstances and personal statement could not be verified; no mention was made of the further evidence provided or offered by the Applicants. In fact they had offered to arrange for Y to come to be interviewed by the consular officer. I accept the submission of Ms Cronin, counsel for the Applicants, that this omission was significant as Mr Wharton had said that the consular officer had concerns about how the surrogate was approached to undertake the surrogacy and gone on to dispute her identity even though the Applicants had provided her official identity card with complete biometric markers and photograph, and secondly, as the facts in the death certificate recording the date of the death of Y’s late husband had been verified in notarised documents signed by local assembly members in the relevant Ward, including by Mr H J A, a legislator who knew the deceased personally.

The issue to be determined by the consular officer was whether the children were British citizens by descent (whether the commissioning father was, in law, their father so that they took their citizenship from him; acquisition being by descent British Nationality Act (BNA) 1981 s 2 (1) (a)). As the HFEA definition of parenthood is incorporated in the BNA 1981 by virtue of s 50(9A) -

“For the purposes of this Act a child's father is—

(a)

the husband, at the time of the child's birth, of the woman who gives birth to the child,

or

(b)

where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or

(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or

(c)

where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed

requirements as to proof of paternity...”

- all this would have required was consideration of whether, at the time of the IVF implantation, Y was married (and if so if her husband consented to the implantation). The consideration should have been based on the balance of probability and not on certainty as Mr Wharton’s email to the Children’s Solicitor implies. Mr Wharton’s explicit implication is evinced in his email which refers to his inability ‘to confirm categorically which details are correct’ and that the ‘information does not provide the certainty we need’.

It would appear that the court’s request for written reasons from the FCO contained on the face of the order of the 27^th April 2015 prompted the Home Office Nationality Section to take charge of the nationality application, to ensure that the consulate transferred all the original documents provided by the Applicants and to give priority to the consideration whether the Secretary of State would allow the children to be registered as British citizens under the broad discretion in BNA section 3(1) above. Ms Cronin has helpfully referred the court to the “Home Office Nationality Instructions” Chapter 9; entitled “Registration of Minors at Discretion” it reads “9.10.3 Where a man is neither the biological father of the child nor within the relevant definition of "father" in the BNA 1981 ….We should normally register if: a. we have the consent of all those with parental responsibility …. including a notarised statement of consent from the surrogate mother; and b. we are satisfied that, had the child been born to the man legitimately: the child would have had an automatic claim to British citizenship …under s2 (1)” (citizenship by descent). As a result the children were registered as British citizens on the 13^th May 2015 and issued with passports on the application of this policy guidance.

At the hearing on the 18^th May 2015 I made a further order providing a timetable for further evidence and legal argument to be in the following terms. The recitals to the order recorded that on 13^th May 2015 the parties were informed that the Home Office had registered the children as British Citizens; that the commissioning father remained in India with the children and that the commissioning mother intended to travel to India as soon as the children were issued with their British passports. The order recorded that given the delay that had already occurred in the issuing to the children British identity and travel documents, the court expressed its hope that the Indian exit visas would be issued to the children promptly. I gave permission to the solicitor for the child to make an application to me by email if the Children’s Guardian considered that one visit to the children would not be sufficient to complete her enquiries.

After the hearing on the 18^th May 2015 events continued to move quickly, the twins’ passports were delivered to the Applicants’ home in England the next day and the commissioning mother and K travelled to India on the 23^rd May. The Applicants went to the British High Commission in Delhi to apply for exit visas on the 25^th May, which were granted the next day. On the 28^th May 2015 all three children flew to England with their parents where they have remained.

The final hearing listed for 8^th July 2015 was not contested as the public policy issues that may have arisen had a parental order been sought without resolution of the immigration and passport matters, however I had asked that the parties prepare skeleton arguments based on the facts of this case to use it as an illustration of the kind of complex issues that can be raised in foreign surrogacies along with the delays that can occur if not transferred to be heard by a High Court Judge. This judgment will set out some guidance for the allocation of surrogacy cases within the Family Court.

The Applicants had applied for the parental order on 1^st August 2014 about 2 months after the children’s birth. This application which was lodged at the Coventry Combined Court Centre was transferred to the Family Court Birmingham but there followed a period of eight months in which seven directions orders were made, several in the absence of the parties and many of which did no more than recite the difficulties being caused by the delays in dealing with the applications at consular level and in the Passport Office. The Applicants and the children were unrepresented until February when an order was finally made for a rule 16.4 (FPR 2010) guardian. Although the situation for the family was resolved fairly rapidly once it was transferred there was a considerable delay in the twins being able to join their family in England and they were effectively stranded in India for over a year.

Under Indian law the Applicants are the parents of the twins who are not Indian citizens as surrogate born children. Children of foreign nationals require permission to reside in India under Indian immigration law. Thus while the twins were not permitted to acquire British citizenship from the commissioning parents or to be registered as British citizens, they remained stateless. As such they were unable to travel. On the children’s departure from India, with exit visas granted to them, the Applicants were required to pay 36,000 rupees (£364.5) as a penalty for the children’s unlawful stay over 12 months in India. They were both stateless and unlawful residents under Indian law.

Their situation was similar to that of the Ukrainian born children in Re X & Y (Foreign Surrogacy) [2008] (supra); a case in which Mr Justice Hedley at [10], having noted the “stress and anxiety involved let alone the expense of prolonged accommodation in the Ukraine (at comparable cost to England), the obtaining of expert legal advice, … the cost of testing and immigration negotiations and so forth”, said that “The effect was that the children were marooned stateless and parentless whilst the applicants could neither remain in the Ukraine nor bring the children home.”

The delay in this case was undoubtedly, at the very least, emotionally and psychologically damaging to the twins; they were separated from the Applicants for months at a time when they should have been forming their primary attachments with them as their parents. It is submitted on their behalf and by the Applicants that the damaging delay in this case, while attributable to omissions by the consular office and Passport Office, was also caused by “ the delay in the transfer of this case to be heard by a judge of the High Court as required by Schedule 1 paragraph 4(f) Family Court (Composition and Distribution of Business) Rules 2014 – in force from 22.4.2014 which allocates to judges of the High Court applications under the Human Fertilisation and Embryology Act 2008, section 54, where the child’s place of birth was outside of England and Wales”. It was observed on behalf of the Applicants, with some justification that the experience of the High Court judiciary in such cases as this and its effective working protocol with the Home Office provide for appropriate Court interventions where, as here, parties have been unable to resolve nationality or immigration issues.

As this judgment will be giving guidance for the distribution of work in HFEA applications it may be of some use to include an overview of the law in relation to applications of parental orders. Parental orders are a creature of statute and can only be made by the court by virtue of the statutory law, applicants must comply with all the provisions of s 54 of the HFEA 2008 and follow the procedure as set out in Part 13 of the Family Procedure Rules 2010 (FPR 2010). The 2010 Regulations which accompany the HFEA 2008 came into force in April 2010, paragraph 2 and schedule 1 of the Regulations apply s1 of the Children and Adoption Act (ACA) 2002 to Parental Order applications so that the child’s welfare must now be the court’s “paramount consideration... throughout his lifetime”. The parallel with adoption law is underlined by the incorporation of the same statutory provision as regards the child’s welfare.

Before granting a parental order, the court must be satisfied that all the relevant conditions in s54 HFEA 2008 have been met and the approach to an application for a parental order requires a similar degree of care and caution as that to an application for adoption. The requirements for the making of a parental order should not and cannot be dispensed with: Re D and L (Surrogacy) [2012] EWHC 2631; G v G (Parental Order: Revocation)[2013] 1 FLR 286, notwithstanding the decision of Sir James Munby, President as regards time limits in Re X (Surrogacy Time Limits) [2014] EWHC, subsequently applied in the reported decisions of Theis J in AB and CD v CT [2015] EWFC 12 and A and B (No 2: Parental Order) [2015] EWHC 2080 (Fam) and my decision in A and B (Children: Surrogacy: Parental Orders: Time limit) [2015] EWHC 911 (Fam).

The preliminary conditions for making an application are set out in sections 54(1) to (5) HFEA 2008. Section 54(1) HFEA 2008 provides that an application for a parental order can be made if a child has been carried by a woman who is not one of the applicants, as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination & the gametes of at least one of the applicants were used to bring about the creation of the embryo, and the conditions in subsections (2) to (8) of s 54 are satisfied. The applicants are required to file evidence in the form of statements with the relevant documentation exhibited to those statements setting out in detail their case. This is to include the background of the surrogacy and of the surrogate mother Y (the respondent) and her husband, wife or partner, where and how the treatment took place, in this case the twins were conceived following in vitro fertilisation (IVF) treatment at the clinic in India which involved the placing in Y’s uterus embryos created with the male applicant’s sperm and eggs from a donor.

The provisions of s 54(2) HFEA 2008 require that the applicants are husband and wife, or same-sex civil partners or two people who are living as partners in an enduring family relationship; this requirement is met in this case as the applicants are husband and wife who have filed a copy of their marriage certificate and set out details of their relationship in their statements in support of their application. Following the decision of the President, in In the matter of Z (A Child) [2015] EWFC 73 in which this matter was considered, there is no provision for a single person to make an application for a parental order.

Section 54(3) HFEA 2008 provides that the application must be made during the period of 6 months beginning with the day on which the child is born. This was met in respect of the twins as can be seen from the date on which the application which was just under 3 calendar months after they were born. There are limited circumstances in which a court can consider an application issued after a period of six months following the decision of the President in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) and subsequently applied in reported decisions of Mrs Justice Theis in AB and CD v CT [2015] EWFC 12 and A and B (No 2: Parental Order) [2015] EWHC 2080 (Fam) and my decision in A and B (Children: Surrogacy: Parental Orders: Time limit) [2015] EWHC 911 (Fam). In all of these decisions, the court made parental orders notwithstanding the fact that the children subject to the applications were older than six months at the date of the application.

The child’s home must be with applicants at the time they made the application (Section 54(4) (a) HFEA 2008) and at the time the court is considering making the order. Although the twins had remained in India and at times were not being cared for there by the Applicants there was no issue in this case as the place the children were living was a home that was entirely arranged and provided for by the Applicants; moreover the commissioning father had returned to India in February and remained with the children until the whole family came to the UK in May 2015. Either or both the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man (sub-section (4) (b)). Domicile can be problematic in some cases as it is a peculiarity of English and Welsh law which is often confused with residence by applicants acting in person (and others). This was the matter with which the court was concerned in the case of Re G referred to paragraph 2 above. In the instant case, however, there was no such problem as both Applicants were born in England to fathers domiciled here and there was no evidence to suggest that they had not retained their domicile of origin. They were both over eighteen years old at the time the order was made and so meeting the requirements of s 54(5) HFEA 2008.

The respondent/s’ consent is an essential component of the provisions of s54. Under s54 (6) and (7) HFEA 2008 the court is to be satisfied (s 54(6)) that both the woman who carried the child and any other person who is a parent of the child but is not one of the Applicants (either the husband of the woman, provided he consented, sperm donor in certain specific instances or a woman or the female civil partner of the surrogate, provided she consented)) have freely, with full understanding and unconditionally given their consent. Section 54(7) HFEA 2008 requires that the consent of the surrogate (and her husband, wife or partner) was given not less than six weeks after the birth. This court was satisfied, on the basis of the evidence filed on behalf of the Applicants that the respondent (Y, the gestational surrogate) has consented freely and has been fully informed about what she is agreeing to. I have seen and accept as genuine Y’s signed, notarised declaration of consent confirming her free and informed consent to the transfer of custody of the children to the Applicants; that she had received financial consideration for her surrogacy services in full; that she consented to the issue of British passports to the children and to the making of a parental order the significance of which was explained to her. The commissioning mother translated the forms prescribed by Part 13 of the FPR 2010 to Y so that she could be sure that she understood what she was signing. This was done in the presence of a Mr Imran Alvi, the Director of Helping Mothers and the surrogacy coordinator, Shweta Khanna.

The rules set down in Part 13 of the FPR 2010 required that the respondent was a party to the proceedings and that she was served with the application at least 14 days before the hearing or first directions hearing and Y was served with the application and signed the acknowledgement of service which was filed with the court in compliance with the procedural rules. As any form of agreement that is drawn up outside the UK must be witnessed by either a) a person authorised by law to administer an oath for judicial or legal purposes; or b) an official from the British Embassy or Consulate; or c) a notary public; the notarised consent referred to in the paragraph above met those requirements. I am satisfied that the court has been provided with independent and corroborated evidence that the agreement was properly entered into and Y’s consent freely given.

While commercial surrogacy is not lawful in the UK, it is, however in India where the twins were born. The court has the discretion to authorise payments other than for expenses reasonably incurred. Section 54(8) HFEA 2008 provides that the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the Applicants for or in consideration of “(a) the making of the order,(b) any agreement required by subsection (6) above,(c) the handing over of the child to the applicants, or (d) the making of any arrangements with a view to the making of the order, unless authorised by the court.”

As the welfare of the child has to be considered from a lifelong perspective rather than just through childhood and the court must have regard to the welfare checklist as set out in s 1 of the ACA (ACA) 2002: the welfare of the child is no longer simply one consideration among many, but rather the consideration which should override all others.

As has been observed in previous decisions of the High Court it remains necessary for the Family Court to have in mind considerations of public policy when exercising its discretion to use the power of authorise payments over and above reasonable expenses under s54 (8) HFEA 2008, but the court should and will only refuse a parental order in the “clearest case of the abuse of public policy”. This approach which was developed by Mr Justice Hedley and remains as he set out in Re S [2009] EWHC 2977 at [7], "This clearly raises matters of public policy and those matters really relate to, as it seems to me, three things: To ensuring that commercial surrogacy agreements are not used to circumvent childcare laws in this country, so as to result in the approval of arrangements in favour of people who would not have been approved as parents under any set of existing arrangements in this country." He went on to say. "The court should be astute not to be involved in anything that looks like the simple payment for effectively buying children overseas. That has been ruled out in this country and the court should not be party to any arrangements which effectively allow that." And that; "The court should be astute to ensure that sums of money which might look modest in themselves are not in fact of such a substance that they overbear the will of a surrogate."

This approach to payments and to welfare was subsequently endorsed by Mrs Justice Theis J in A v P [2011] EWHC 1738 (Fam) and by Sir Nicholas Wall, the President of the Family Division, in Re X Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam). The approach of this court is that which was set out by Mr Justice Hedley in Re L (a child) [2010] EWHC 1738 (Fam) at [12].

“I think it important to emphasise that, notwithstanding the paramountcy of welfare, the court should continue carefully to scrutinise applications for authorisation under Section 54(8) with a view to policing the public policy matters identified in Re S (supra) and that it should be known that that will be so.”

The need for the court to consider issues of public policy extends to welfare and to ensure that commercial surrogacy agreements entered into overseas are not used to circumvent childcare laws in this country, resulting in the approval of arrangements in favour of people who would not have been approved as parents on welfare grounds under any set of existing law such as adoption for example if the age of the commissioning parents would have excluded them as potential adopters and/or they have previously been turned down for adoption. To paraphrase Mr Justice Hedley, the court must take care not to be involved in anything that looks like payment for buying children overseas. The court cannot be a party to any arrangements which give effect to or sanction commercial surrogacy agreements even if they are legal in the country in which the surrogacy agreement was entered into and where birth took place.

When the court exercises its discretion in respect of payments made before during or after commercial surrogacy agreements entered into abroad it must do so with care and, in particular, ensure that sums of money which might look modest by UK standards are not so substantial in the country where the surrogate lives that they could be said to overbear the will of a surrogate by exploiting her financial vulnerability. The statements of the Applicants dealt with these issues and set out fully and frankly the sums paid. The amounts paid for expenses reasonably incurred were set out in detail and each expense identified as far as the Applicants were able to do so.

The focus of the court is, necessarily, on payments made directly or indirectly to the gestational surrogate and I shall return to this below, however, the court must also consider payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions and, in doing so here, I am following the decisions of P-M [2013] EWHC 2328 (Fam), Re C (A Child) [2013] EWHC 2408 (Fam) and Re W [2013] EWHC 3570, as such payments cannot be considered to have been expenses reasonably incurred, they fall to be authorised by the Court retrospectively along with any payments made to Y. Payments for any medical treatment she received can be excluded for such payments must be a reasonable expense. Any payment made to the egg donor is excluded for the reasons given by Mrs Justice Theis in Re C (above at [15]) as such payments do not fall to be considered under the provisions of s54 (8)’.

The Applicants contracted with the agency Surrogacy Abroad (an American company based in Delhi) only after they had “vetted” several Indian surrogacy agencies. The commissioning mother spoke to the head of the clinic and asked to see references from other commissioning couples and then contacted those couples before they selected the agency. Their contract for services with Surrogacy Abroad regarding the twins was their second contract with the agency as it had undertaken the initial arrangements for K’s conception and birth. The Applicants have provided this court with copies of bank transfers, the Surrogacy Abroad invoice, a schedule showing their payments to the clinic and the services to which the payment applied. The total sum which was paid amounted to a total of £21,432.38 (sterling) of which £2909.84 was the surrogate compensation fee, similar amounts have been retrospectively authorised by the court, for example in the case of in D And L (Minors Surrogacy), Re [2012] EWHC 2631 (Fam). In considering the amount paid to Y I take the approach set out above and keep in mind too the judgment of Mr Justice Headley Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at [19] and [20]:

“In relation to the public policy issues, the cases in effect suggest (and I agree) that the court pose itself three questions:

was the sum paid disproportionate 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?”

I have referred to the judgment of Sir Nicholas Wall, P in Re X and Y (Parental Order: Retrospective Authorisation of Payments) (supra) which expressly approved the approach of Mr Justice Hedley and I have applied the principles that have been developed by case law in particular that the question of whether a payment exceeds the level of "reasonable expenses" is a matter of fact in each case and that it is contrary to public policy to sanction payments that effectively amount to buying children from overseas. Against that the effect of the 2010 Regulations, namely that the court must regard the children's welfare as the paramount consideration, means that the decision whether to authorise payments retrospectively is part of the decision relating to the making of a parental order to be decided in the light of the welfare of the children rendering virtually impossible to conceive of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign-born child, would not be gravely compromised by a refusal to make the order as said by Mr Justice Hedley in Re X and Y (2008) and as he said in Re L at [10] "it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making."

In this case the Applicants have acted in good faith and there is no question of any attempt to defraud the authorities indeed the surrogacy arrangements in this case were entered into with care, thought and in respect of much-wanted children. There is no evidence of moral taint in the Applicants’ dealings with Y or with the nationality, immigration, the High Commission or the Indian authorities. I have no reason to doubt that the Applicants are entirely genuine and have at all times acted in good faith. Moreover, and as I have already alluded to, the payments are not disproportionate and so the granting of parental orders would offer no affront to public policy and would clearly be in the best interests of the children’s welfare. The payments to the agency and clinic and the figures provided by them are not broken down in sufficient detail to separate medical treatment and other reasonable expenses from profit and agency fees; this is not unusual, the Applicants have been parties to a legal agreement and made the payments asked of them in keeping with Indian law. The legality of the contract has been confirmed by an independent lawyer instructed by the Applicants who provided his expert opinion that the surrogacy agreement is a legal and valid agreement.

Having read and considered the Parental Order Report prepared by the children’s guardian I have no doubt that the welfare of L and M will be best served by making parental orders in respect of each child. I retrospectively authorise the payments made over and above reasonable expenses having regard to the paramouncy of the children's welfare and make a parental order in respect of each child.

Parental order applications of overseas surrogacy or those with an international element, particularly those where the children were born outside the jurisdiction as a result of a surrogacy agreement whether it was commercial or not invariably involve some legal complexity. As Mrs Justice Theis said in CC and DD [2014] EWHC 1307 a case in which the applicants were resident overseas;

“3.

This case highlights once more the legal complexities in this area of the law and the need for those who embark on international surrogacy arrangements to ensure they have expert advice both here and in the jurisdiction where the arrangement is taking place. This international flavour of this case was not unusual: the applicants are of British and French origin, the child was born in the US to a US surrogate mother in an arrangement that involved legal procedures between two US States, the family currently live in France and the proceedings for a parental order are here….

20.

There is no requirement under s54 that the applicant or that the child should be present in this jurisdiction. The court’s jurisdiction to make a parental rests solely on the requirement in s54(4)(b) that at least one of the Applicants has a domicile in a part of the United Kingdom, Channel Islands or the Isle of Man. As noted above, s54 (4) (a) requires the child’s home to be with the applicants at the time of the application and the making of the order, but does not specify that the child’s or the applicants home must be in the UK. A parental order is not a Part 1 Order as defined in Chapter I of the Family Law Act 1986 and therefore jurisdiction to make such an order is not governed by that Act.

In this case it was unfortunate that it was not until April 2015 that specialist advice was obtained.

Those representing the Applicants and the children submitted in their joint statement of issues that the “welfare issues raised by this case are stark, serious and exceptional. This travel problem is now resolved. However, absent such solution, it is the parties’ submission that in this exceptional case the paramount welfare considerations would also have justified the Court arranging an expeditious consideration of the section 54 considerations so as to allow the making of the parental order. This would have included the court hearing directly from the official in the Passport Office, coupled with an urgent invitation to the Home Office to intervene should it choose to do so. In that way the court could have properly addressed, with representatives of the relevant authorities either present or electing not to be present, the public policy concerns which the course advocated by the parties raise.” It can be seen from the case law referred to in this judgment that this case is not particularly exceptional in the experience of the judges in the Family Division who have built up a specialist knowledge and expertise in this area of law and an early listing before a specialist tribunal as is envisaged by the guidelines set out below and approved by the President of the Family Division. Indeed it was submitted on behalf of Cafcass Legal as advocate to the court “that [the proposition that] these proceedings should have been transferred to the High Court and the children made parties to the proceedings at the earliest opportunity seems overwhelming.”

Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

The President has seen paragraph [73] and has approved it.

The children’s guardian was prepared to consider making recommendations without having seen the children in the care of the Applicants in the UK in the exceptional circumstances of this case. She made it plain to the court that this was not her preferred option and it was her assumption that she needed to see the children at home with the Applicants. The only reason that Ms Dawe felt able to consider such a course was because there was what she described as “wealth of material” about the Applicants’ ability to parent K and the support that was available to the Applicants from their wider families. Ms Dawe accepted that parenting three children is different to one but was so concerned about the welfare of the babies stranded in India that she felt that it was an appropriate course for her to take. The role of the Cafcass officer/Cafcass Cymru/Parental Order Reporter and the extent and nature of their investigations was one issue in this case that I specifically sought assistance upon from Cafcass Legal and I am grateful to them for that assistance.

A specific issue raised in this case was whether it was necessary for the child or children who are subjects of applications for parental orders under s54 of the HFEA to be seen by the Parental Order Reporter for the welfare report to be properly prepared. The Human Fertilization and Embryology (Parental Orders) Regulations 2010 does not incorporate section 42(7) of the ACA 2002 which require a privately placed child to be seen by the Local Authority together with their adopter in their home, and the Explanatory Memorandum to the Regulations makes no reference to any such requirement. For the purpose of cases of international surrogacy it sets down the following about the acquisition of nationality or citizenship:

The Court was referred to the Cafcass Guidance issued to Parental Order Reporters at the hearing on 18^th May 2015. This guidance did not require in terms that the parental order reporter sees the child, but since that guidance was issued, further work was undertaken within Cafcass as a result of which fact-sheets were produced for commissioning parents who are applying for parental orders and in the fact-sheet entitled “Parental Order Reporters” intended applicants are told that they will be seen by the parental order reporter with their child (my emphasis). These documents or fact-sheets were only just published within a few weeks of the final hearing of this case on 7th July 2015.

Ms Penny Logan of Cafcass Legal, who appeared before me and Ms Lakin, counsel on behalf of the children, both told the court that they were unaware of a case that had been reported where the parental order reporter has not seen the child. This was accepted by Ms Cronin on behalf of the Applicants. Ms Logan pointed out, and as this court is well aware, members of Cafcass Legal routinely act for High Court team guardians in cases where the children are parties. The court was reminded of the fact, well known to it, which is that the High Court team undertakes a large proportion of the parental order cases in the High Court and most of the international ones. Ms Logan told the court that she was unaware, through Cafcass, of any case reported or unreported, where the parental order reporter has not seen the child. Although this court is aware of one such instance in a reported case (see the reference in [86] below) it is difficult to imagine circumstances in which a parental order reporter could properly report on welfare without having seen the child with the Applicants. Ms Logan went on to inform the court she was, at that time, involved in another surrogacy case where determination of the application hade been delayed for a year for similar reasons.

It is accepted that it was never the preferred option of the guardian in this case that she would make recommendations in the absence of seeing the children with the Applicants in the UK. It is the experience of this court that applications for parental orders are made by commissioning parents who do not presently reside in this country (when one or both have a UK domicile). In such cases parental order reporters see children with commissioning parents/applicants when they visit this jurisdiction as in the case of CC v DD (supra) [2014] EWHC 1307.

In the instant case the guardian’s report amply demonstrates both the value and necessity of such observations in terms of the analysis of the welfare checklist set out in s.1 ACA 2002. While it would have been a matter for the court as to whether it would have made the order in the absence of this work in the circumstances of this case; I took the view that the parental order reporter had to have seen the children with the Applicants before the court could be satisfied about their welfare.

The observations made by Mr Justice Hedley in K (Minors) (Foreign Surrogacy) [2010] EWHC 1180 (Fam) when considering his jurisdiction to deal with a parental order application under HFEA 1990 s30 and his concerns where the children and a parent were in India awaiting a decision on an entry clearance were entirely shared by me:

“This case was listed before me for Directions. However, without the children being in the country the application cannot be progressed. In the first place it appears to me (as presently advised) that the children cannot be said to be habitually resident here and thus the court lacks jurisdiction. In any event a welfare decision is required as part of the Section 30 application and the Guardian cannot complete her assessment until she has seen the children living with the applicants in this country. The parties invited the court to consider indicating (by recital in the order) its view as to the likelihood of an order being granted.

I expressed (and continue to entertain) considerable disquiet about doing that. In the first place I am not presently satisfied that I currently have jurisdiction over these children. Secondly, there remain both outstanding welfare enquiries and an invitation to the Court to exercise its jurisdiction under Section 30 (7) to approve certain payments under the agreement. Thirdly the court must be careful not to usurp functions which specifically belong to the executive. And fourthly the giving of advisory opinions (as opposed to Declarations establishing rights or the lawfulness of an action) is alien to the traditional practice of the court. On the other hand it is difficult not to be sympathetic to the actual difficulties faced by these applicants.”

As alluded to in paragraph 70 above the HFEA does not require that the children who are the subjects of a parental order application to be present or habitually resident in the jurisdiction for the Court to exercise its jurisdiction under s54. Under s54 (4) (b) the Court’s jurisdiction is based on one of the applicants having a domicile in the United Kingdom, the Channel Islands or the Isle of Man. In CC v DD [2014] (supra) Mrs Justice Theis said in her judgment:

“[20] There is no requirement under s 54 that the applicant or that the child should be present in this jurisdiction. The court's jurisdiction to make a parental order rests solely on the requirement in s.54 (4) (b) that at least one of the Applicants has a domicile in a part of the United Kingdom, Channel Islands or the Isle of Man. As noted above, s 54(4) (a) requires the child's home to be with the applicants at the time of the application and the making of the order, but does not specify that the child's or the applicants' home must be in the UK. A parental order is not a Part 1 Order as defined in Chapter I of the Family Law Act 1986 and therefore jurisdiction to make such an order is not governed by that Act.”

As has already been referred to, in CC v DD the parental order reporter saw the child (born in the United States and an American citizen who had a US passport and who was able to travel to the UK) on an occasion when the child visited the UK with the applicants. It was rightly observed on behalf of the Applicants that such an arrangement would not be feasible if the subject children, as they were in this case, are stateless and cannot lawfully leave India or travel to the UK. The Applicants submitted the legislation and practice guidance appears to provide the Court with the discretion to direct or judge the scope and arrangements for the welfare oversight needed in any particular case and that the HFEA differs from adoption law and practice as neither the statute nor the regulations require that the subject for children are seen by the parental order reporter in their home. This is an accurate exposition of the statutory and regulatory provisions as it has always been accepted that Parliament did not intend to replicate the adoption regulations, however not seeing the child at all is quite different from not visiting the child at home. The FPR 2010 and PD 16A Part 7 (rule 16.35 which must be exercised in accordance with PD 16A) do not require that the parental order reporter sees the subject children either with the Applicants or otherwise as part of the investigations for the parental order report.

The relevant procedure and rules contained in FPR 2010 Part 16 is reproduced here:

As I have said at the court’s request I have had the assistance of Cafcass Legal in considering the practice of parental order reporters in general and I have already referred to their practice guidance (which incorporates the provisions of the FPR 2010) and the fact-sheets they published for applicants in parental order proceedings. I accept the submission made by Ms Logan that while neither the FPR 2010 nor the Cafcass Guidance required observation of the children with the Applicants, the evidence before the court regarding the welfare of the children filed on and behalf of the guardian, most strikingly her report would have both impoverished and hampered the court’s analysis.

It is the view and guidance of this court that the parental order reporter’s investigation in any case must include the child being seen with the applicants unless there are compelling and exceptional reasons based on the child’s welfare why such observations cannot take place or where there is sufficient independent evidence pertaining to the child’s welfare from an alternative source.

The judgment of Mrs Justice Theis Re A (Foreign Surrogacy: South Africa) [2015] EWHC 1756 is one reported case where the court, exceptionally, was able to accept the parental order reporter’s recommendations when he did not see the child with the applicants. Although he had not seen the child he had the benefit of a comprehensive independent report from a South African social worker on which both he and the court could rely. The social worker had visited the child and her family, including the applicants and her older sibling who was the subject of a parental order granted by Mr Justice Hedley in 2012. It is worth noting that not only was this possible because of the independent social work report but also there is an admirable and well regulated legal framework for altruistic surrogacy arrangements which are overseen by the South African High Court under their Children Act 2005. The arrangements are put in place before conception and the provisions of the legislation are framed to ensure that there is no exploitation of the surrogate.

As can be seen above it is the duty of the parental order reporter to “investigate the matters set out in sections 54(1) to (8) of the 2008 Act”( FPR 2010 Part 16 r16.35 (2) (a)) and do so in accordance with PD 16A 10.1 which gives further directions as to how those investigations are to be carried out including that the parental order reporter (a) contact or seek to interview such persons as the parental order reporter thinks appropriate or as the court directs. The combined provisions of s 54(4) (a) (that the child’s home must be with the applicants) the emphasis on the welfare of the child provided by the 2010 Regulations’ incorporation of s 1 of the ACA 2002 and the procedural rules and guidance are that, to be able to investigate as required and to base their conclusions and recommendations as to the subject child’s welfare on evidence, the parental order reporter must see the child with the applicants.

In this case the children were not in the same country as the Applicants when the application for parental orders was made and s54(4)(a) of HFEA 2008 provides that at the time of the application and of the making of the order the child’s home must be with the applicants. Unlike the case of Z & Anor v C & Anor [2011] EWHC 3181 (Fam) (where the children were at least with one of the commissioning parents almost all of the time) the time that the Applicants were with the twins in India was limited by practical, financial and medical constraints. The commissioning father was in India from the 8^th May 2014 when he took the twins to the flat they had rented in advance of their birth. The commissioning mother was there from the 15^th May and they both returned to the UK on the 22^nd May 2014. The commissioning mother returned to India on 12^th June 2014 but both were in the UK when these applications were made on 31 July 2014 which was approximately three months after the twins’ birth.

The children were not living with the Applicants when the application was made and they remained living in the flat provided by the Applicants until February 2015 when they moved with the commissioning father to his ancestral village in the Punjab. I accept that the Applicants were responsible for the provision and financing of the children’s home and care whilst they were in Delhi. The commissioning mother phoned every day so that the babies would hear her voice. Their physical home and care was entirely provided for by the Applicants both materially and financially, but most of their physical and emotional care, at least until February 2015, was provided by the nannies employed by the Applicant. This was not by choice, however, but solely because of the difficulties they had encountered in their applications for travel documents for the children. In re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam) the President said [52] that the court must consider the statute in question “having regard to and in the light of (a) the statutory subject matter; (b) the background; (c) the purpose of the requirement (if known); (d) its importance; (e) its relation to the general object intended to be secured by the Act; and (f) the actual or possible impact of non-compliance by the parties.”

In this case, as the children were effectively stopped from living with their commissioning parents because of administrative delay, the approach that I adopt is that set out by the President in re X at [54] to [57]:

The twins were prevented from living with their parents for a long time before they could come to England, including the date on which the application was issued, for many reasons including their mother’s medical condition and their elder sister’s needs. When the Applicants made the initial arrangements they could not have had any reason to believe that events would unfold as they did stranding the twins in India.

As it concerns their individual status at international law there are additional considerations when deciding applications for parental orders as I said in A & B (Children) (Surrogacy: Parental Orders: time limits) [2015] EWHC 9ll Fam [39] to [41]:

I apply the same considerations in this case, with reference to s 54(4) (b) the children may not have been living with the Applicants “at the time the application was made” but they certainly were “at the making of the order”. Moreover their home in India was one constructed by their commissioning parents and with the previous case law in mind I have no difficulty in finding this part of the provisions of s54 met in the circumstances of this case. The intention of the Applicants was always to establish family life for the twins within their own family. The girls were planned for and much wished for children, conceived with the commissioning father’s sperm. The Applicants fought for over a year to re-unite their family; for these children have no other family in any sense, nor was it intended that they would be a part of any other family. It was the intention of Y and of the Applicants that they would be brought up by the Applicants as their children in law and in fact, and it is the purpose of this application.

Earlier in the proceedings (as alluded to above) an issue arose as to whether the court should make a parental order which would have had the effect of conferring British citizenship allowing the children to travel to the UK as British citizens. Applications for parental orders cannot be used to circumvent immigration law; as long as twelve years ago Mr Justice Munby (as he then was) set out the relationship between the family court and the immigration authorities in Re A (Care Proceedings: Asylum Seekers) [2003] EWCJ 1086 (Fam) 2 FLR 921:

In ABS the court made the adoption order; as in this case, the purpose of the application was not to gain the right of abode through the conferring of nationality, but to enable the proposed adopters to exercise parental authority lawfully (in ABS the court had given the Secretary of State for the Home Department leave to intervene and also heard argument from counsel on his behalf, a step that was no longer necessary in this case.

It is established practice in adoption applications with international elements for the court to notify the Home Office and ask whether it wishes to intervene in the case. As a result of this practice consideration of the role of the Home Office is to be given at the first directions hearing in an application for adoption; as provided for in FPR 2010 PD14B (The First Directions Hearing – Adoptions with a Foreign Element) 14(2) (d) (ii). It is not always necessary to do so in applications for parental order applications nor is it required by the FPR Part 13. It is clear, however, that in this case, that notification and/or invitation should have been given (on the face of a court order) to the Home Office, the Passport Office and the Foreign and Commonwealth Office at the first opportunity after it had become apparent that there were difficulties in the children leaving India. As noted by both Ms Cronin and Ms Logan it was only when the matter was the subject of an order of, and requests made by, a High Court judge that formal, if partial, explanations for the delay were forthcoming. Soon after that the children were able to join their family in England.

Parental orders have been made for the reasons set out in my judgment above.