A & Anor v C & Anor

I am giving this short judgment to explain the reasons why I have made parental orders in this case for three children, now age 13 and twins 12 years.

The applications were made in March 2016. The children were respectively born in 2002 and 2004, following surrogacy arrangements entered into in the United States between the applicant commissioning parents and the respondent surrogate mother and her husband. The ensuing strong emotional ties between all the adults is perhaps best encapsulated by the fact that the surrogate mother is known by the children and the applicants as the ‘fairy godmother’, recognising her special position in their lives. All parties in this case have remained in contact, and there is every expectation they will continue to do so.

The reason why this application is made so long after the six month time period set out in s 54 (3) of the Human Fertilisation and Embryology Act 2008 (“HFEA”) is that, as the applicants candidly explain, they had no idea such an order was required. It was not until a chance reading of an article by one of the applicants in a Sunday newspaper in February this year, that she realised the need to make such an application to secure her and her husband’s legal relationship with their children in this jurisdiction. They had obtained pre-birth orders in the State where the children were born in the US, which secured their legal relationship there and until reading the article earlier this year had no idea of the need to take any legal steps here. Without any order being made here, the legal position in this jurisdiction is that the children’s legal parents are the surrogate mother and her husband, by virtue of ss 33 and 35 HFEA.

Having made their application in March, the applicants filed detailed statements setting out the background and the evidence they relied upon to satisfy each of the criteria under section 54 HFEA. Fortunately they were still in touch with the respondents, so able to file their written consent to the making of a parental order. The parental order reporter Ms Adams met the family and prepared a detailed report, recommending the court make a parental order.

Save for the application being made more than six months after the children’s birth, there is no issue that the relevant criteria under s 54 are all met. At least one of the applicants has a biological connection with each of the children; the applicants were married at the time of the application; the children have lived with them since birth; this jurisdiction is both applicants’ domicile of origin; they are both over 18 years; and both respondents have signed notarised Form A101A consents. The compensation payments made to the respondents for both arrangements (respectively £12,850 and £14,375) are relatively modest, compared to the sums authorised by the court in other US based surrogacy arrangements. The evidence demonstrates that these payments were not such to raise any concern; the arrangements were entered into through third party agencies and the respondents fully co-operated with the legal process to secure pre-birth orders. I am entirely satisfied the applicants acted entirely in good faith and have no hesitation in authorising the payments made other than for expenses reasonably incurred.

Turning now to the delay in making the application. 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. In D & G [2015] EWHC 911 (Fam) Russell J made parental orders in relation to applications made 8 and 5 years after the respective children’s birth. In that case, as in Re X, and in this case the applicants were not aware of the need to apply for parental orders. As with the applicants in this case, once they did become aware they promptly made the application for a parental order.

At paragraph 65 in Re X the President made it clear that each case must be considered in its own facts. In this case, I am entirely satisfied that no one, not the surrogate parents, the applicants or the children will suffer any prejudice if the application is allowed to proceed. Conversely, it is clear if the application is not permitted to proceed the applicants and the children are likely to suffer prejudice, as they will be denied the opportunity to secure their legal relationship in this jurisdiction in a way that meets the lifelong welfare needs of these children.

Whilst, of course, mindful of the public policy consideration of adhering to the six month time period set within s 54 (3) and the need not to discourage commissioning parents in surrogacy arrangements from making applications for parental orders promptly, I have to weigh those considerations against the welfare of these particular children. Section 1 of the Adoption and Children Act 2002 applies to parental order applications by virtue of the Human Fertilisation and Embryology (parental orders) Regulation 2010 (regulation 2 and schedule 1) which provides “The paramount consideration of the court must be the child’s welfare, throughout his life”.

As the applicants describe in their written statements, they were not aware of the need to apply for a parental order, they state “The simple explanation of why there has been such a delay in applying for parental orders for the children is that we did not know that we needed them, we thought that we were their parents for legal and all purposes in the USA and in the UK and no one in the USA or the UK had ever suggested otherwise to us. We didn’t anticipate any legal consequences in the UK so did not seek any UK legal advice at the time. At that time surrogacy arrangements were not common, the only people who had been through this process in the USA…that we were able to speak to were Australians living in Australia. The internet was not as it is today and we were unaware of any public information that was available to let us know the consequences under UK law of entering into an international surrogacy arrangement. We were unaware that UK law would not necessarily recognise an order made in another jurisdiction.”

I have no doubt in this case each child’s lifelong welfare needs require a parental order to be made. Parental orders will confer joint and legal parenthood and parental responsibility upon the applicants in relation to each of the children, and will fully extinguish the residual parental status and parental responsibility of the respondent surrogate mother and her husband in this jurisdiction. This is not a case where there has been any wilful delay in making the application and having considered the public policy considerations set out above, in my judgment the balance comes down firmly in favour of the court making parental orders, to secure the lifelong legal relationship between each of the children and the applicants.

The applicants requested this short judgment is put in the public domain, as they want to ensure that other people in the same position as them are encouraged to make applications to secure their legal relationship with children born through surrogacy arrangements. By not doing so risks complications later on, for example if there is a need to demonstrate they are the legal parent of a child, or a need to show they have parental responsibility for the child concerned. The applicants have acted in person in these proceedings, with the benefit of having initial legal advice. Their written evidence clearly and concisely sets out their position, and they represented themselves at both the directions hearing and the final hearing with dignity and skill. In her report Ms Adams described the children taking these proceedings in their stride. This reflects the open way the applicants have discussed these proceedings with them, which was supported by the children attending both hearings.