Y v Z & Ors

Once again the court is required to consider the consequences of an international surrogacy arrangement and the legal ramifications for the child, intended parents and surrogate mother. This application concerns an international family that has frequently moved between jurisdictions with the consequence that this young child, X, who is not yet 3 is the subject of litigation in three jurisdictions; here, Florida and New York.

The applicants, Y and Z, are the intended parents in a US surrogacy arrangement with W, the surrogate mother. Y is a Country A national currently living and working in New York, where he lives with the child, X, and his partner, D. Z is a Country B national currently living in London. He has not seen X since October 2015, save for Skype contact in late 2015, the last one being on 23 December. W was the host surrogate of X. She is a US citizen, habitually resident in the US State of Missouri. X was born in Missouri in September 2014, Y is the genetic father and a donor egg was used. W’s legal parentage was extinguished under the law of the State of Missouri with W’s agreement by court orders there in October 2014.

The current legal position for X in this jurisdiction is neither Y nor Z have parental responsibility, or any legal status in relation to X. In accordance with s 33 Human Fertilisation and Embryology Act 2008 (HFEA 2008) W is X’s mother and will remain so in this jurisdiction, unless orders are made extinguishing that legal status.

The applications before the court are: (i) the application for a parental order dated 15 February 2015; and (ii) the deemed application by Y for leave to withdraw that application. Although the parental order application was made jointly in February 2015, only Z actively pursues the application for a parental order. It is accepted that all but two of the relevant criteria for making a parental order under s 54 HFEA 2008 are met. Those two are the requirement that at least one of the applicants is domiciled in the UK (s 54(4)(b)) and X’s home must be with the applicants (s 54(4)(a)). Both of these requirements need to be satisfied both when the application is made, and at the time when the court is considering making the parental order. Z asserts this jurisdiction is his domicile of choice and a purposive interpretation of ‘home’ can include a situation where one of the applicants is not currently in the same jurisdiction as the child concerned and is not having contact. Y disputes these requirements are satisfied on the evidence in this case and, in addition, raises the issue as to whether the court can make a parental order against the express wishes of one of the applicants.

Even if the s54 criteria are met, the court would still need to consider whether the lifelong welfare needs of X are met by the court making a parental orders, having regard to s1 Adoption and Children Act 2002 (ACA 2002). No welfare enquiries have been undertaken by the Parental Order Reporter, Ms Roddy. Ms Markham Q.C., who appears on behalf of the Children’s Guardian, Ms Roddy, remained neutral at the commencement of this hearing. In Ms Markham’s closing submissions her position is that ‘[Z] was domiciled by choice in London as at 2012 and that there is insufficient evidence to prove that he lost this at the time he made the application’ . In relation to the ‘home with’ criteria she considers that unless the court is satisfied that family life exists in accordance with Kroon and Others v The Netherlands (Application No 18535/91) [1994] 19 EHRR 263 this aspect should be looked at within the welfare assessment.

If the court is satisfied the s 54 criteria are met, it will then be necessary to consider Y’s application for leave to withdraw the parental order application.

As well as reading the statements from the parties (including from W) I heard oral evidence from Y and Z. Both Y and Z filed detailed skeleton arguments. Z was represented up until just before this hearing, he represented himself at the hearing and filed written closing submissions. It is clear from the way Z conducted the hearing and the detail in his closing submissions he fully understood the issues the court was being asked to consider.

Whatever the legal complexities surrounding the parties legal status in relation to X a concerning feature of this case is the way both Applicants have, to a greater or lesser extent, sought to re-write the history to suit their own purposes. In the adoption application concerning X made by Y’s partner, D, in New York, which Y was a party to, there was little or no reference to Z living with Y in their home in Miami with X until October 2015. Y unattractively sought to justify this omission in his oral evidence by relying on legal advice and sought to suggest the omission was justified by D visiting them regularly during this period. That suggestion is simply untenable on the information this court has seen. Whatever the difficulties in the relationship between Y and Z, they lived together with X as a family unit from her birth until at least October 2015. Whether D visited or not is irrelevant. The consequences of this prevented Z being given notice of the adoption application, and by doing so failed to provide X with an accurate account of her background. For his part Z’s oral evidence to the Florida court in March 2017, when it was considering the question of jurisdiction, gave no caveat to his position that the parties’ home was in Miami and emphasised the settled nature of the home and their integration in the community. Conversely his emphasis in this hearing has been his connections and long term intentions to live in the UK. Whilst Z has sought to rely on the difference between terms in the respective jurisdictions, it is an unattractive feature of both Y and Z’s position that their evidence has to a greater or lesser extent been tailored to which jurisdiction they are in.

What I am clear about is that whatever their disagreements now there is no issue that it was Y and Z’s joint decision to enter into the surrogacy agreement that resulted in X’s birth, and as Y describes in his first statement their intention was to be ‘parents together’. That accords with W’s evidence. A surrogacy agreement carries with it lifelong responsibilities for both Y and Z, irrespective of any orders, to ensure X’s welfare needs are met, which importantly includes an accurate account of her background. In my judgment, Y and Z have each abdicated their responsibilities to do this to the detriment of X’s lifelong welfare needs, particularly those relating to her identity. Her legal status is precious and important, not something that can or should be treated irresponsibly as part of the inevitable maelstrom following a relationship breakdown. The fact that Y supported X being adopted by someone else within weeks after Y and Z separated in October 2015, particularly in the covert way that he did, displays a reckless disregard to the realities of X’s identity.

It was very heartening to see in the written closing submissions from Y a willingness to engage in mediation to explore possible future contact between X and Z and a resolution of the proceedings in the US. By definition litigation in three jurisdictions is contrary to X’s welfare needs. Whatever the legal position in any of the jurisdictions Z is a part of X’s background and identity and her welfare is likely to require that he remains a reality in her life.

Both parties have filed detailed skeleton arguments.

There is no dispute the critical issues for the court to determine centre on section 54 (4) (a) and (b) namely at the time of the application and when the court is considering making an order the child’s home must be with the applicants and at least one of them must be domiciled in this jurisdiction.

Dealing with domicile first I have been referred to two cases. The first is Z and B v C (Parental Order: domicile) [2012] 2 FLR 797 where I summarised the relevant principles at paragraph 13 as follows:

More recently in U v J [2017] EWHC 449 (Fam) Cobb J at paragraph 9 set out the principles to be applied to the determination of a person’s domicile, taken in large part from the summary provided in Dicey and Morris (15^th edition), noting that the statements of the person claiming or disputing a change in domicile must be treated with caution, unless corroborated by action consistent with the declaration. The person whose domicile is in question may himself testify as to his intention, but the court will view the evidence of an interested party with suspicion. The weight of such evidence will vary from case to case.

The issue of domicile is highly fact dependent. As the authorities in the context of parental order applications have shown, it is unusual for domicile to be at issue between the applicants in parental order cases, as, by definition, they are joint applicants and seek the same outcome. Although unusual to be at issue between the applicants, the relevant principles applied by the court must remain the same. Domicile is a legal concept and must be met on the facts of the case. It is the jurisdictional gateway to the ability of the court to make a parental order (see Re G (Surrogacy: Foreign Domicile) [2008] 1 FLR 1047 at para 6).

In other cases I have been referred to (Re B-G (Parental Orders: Domicile) [2014] 2 FLR 968 and Re Q (Parental Order: Domicile) [2015] 1 FLR 704) the Applicants for parental orders were not residing in the UK at the time the orders were made but it was determined, on the facts of those cases, one of the applicants had retained a domicile of origin in the UK. In AB and CD and GH [2016] EWFC 63 where the applicants had been physically out of the jurisdiction one of the applicants retained her domicile of choice in England due to the clear evidence of an intention to remain permanently and indefinitely in this jurisdiction.

Turning to the requirement that the child’s home must be with the applicants at the time of the application and the making of the order, as required by s 54 (4)(a) I have been referred to a number of authorities setting out how this requirement has been interpreted. Some have involved situations where the parents have separated, (see Re X (a child) (surrogacy: time limit) [2015] 1 FLR 349 where the parents were separated at the time the application was being determined but were both fully involved in the child’s life; Re A and B (parental order) [2016] 2 FLR 446 where the parents were separated at the date of the application and the date of the hearing but there was regular contact; the same position was found in DM & LK v SJ & OJ [2017] 1 FLR 514 ), in one case where one of the intended parents had died after the application had been issued (see A v P (surrogacy: parental order: death of applicant) [2012] 2 FLR 145) and, finally, there have been situations where the child has been effectively stranded (see KB & RJ v RT [2016] EWHC 760 (Fam) and Re Z (foreign surrogacy: allocation of work: guidance on parental orders reports) [2016] 2 FLR 803).

By definition, each case is fact dependent and in certain circumstances the court has considered that the ‘concept of home must and should be construed flexibly’ (para 41 in KB & RJ v RT (ibid)). The court needs to consider the circumstances of each case and such matters as when it could be said was the last time the child had his or her home with the applicants, which would include consideration of factors such as when they shared a home with the child and if they have not why not. If they have, but that has ceased, why and in what circumstances and whether the child could still be said to have their home with the applicants, even construing that term flexibly.

Y was born in Country A and is 46 years old. Z was born in Country B and is 42 years old. Age 19 Z moved to Country C for high school and University education in 1993, and worked there until 2004, when he moved to London. Y moved to London in 1997 and met Z there in 2007.

In 2008 Y and Z entered into a civil partnership and purchased a property together in London the following year. Their civil partnership was converted into a marriage on 2 February 2015, with the result that their marriage was deemed to have commenced from the date of their civil partnership in 2008.

In 2009 Y set up a business in the US with D

Y acquired British citizenship in 2010 as did Z the following year, 2011, when he got British citizenship and obtained a British passport.

In 2012 Y moved to the US to work full time in the business. According to Z, the plan was to grow the business quickly and then sell it. Z was made redundant in the same year and started spending more time in Country B.

Also, in 2012 the parties had decided they wanted a child and started planning to have a child via surrogacy in the US. They signed the agreement with Circle Surrogacy on 26 October 2012.

In 2013 Z moved to Country B and the property owned by the parties in London was rented out.

In March 2013 the gestational surrogacy agreement was signed between the applicants and W, both parties’ gametes were taken to fertilise eggs obtained from an egg donor. Following two unsuccessful embryo transfers, a pregnancy was confirmed in January 2014.

Y and Z signed an agreement between themselves in January 2014 setting out they would live in Country B when X was born. The hand written agreement in the papers confirms they would be living in Country B ‘until the child is of school age’, that they will rent the London flat and that the arrangement is with a main purpose of keeping them together as a family in a place where they can afford to live. It notes they have explored London as an option but would find it difficult to make ends meet there. In oral evidence both Y and Z described their reasons behind this agreement.

Y opened an office for his business in Miami in June 2014 and in the August he acquired a 5 year US visa (E2 visa) based on his business venture. There were some emails in mid 2014 that made reference to coming to London, but it was not an agreed plan. According to Z, Y said in August 2014 for the first time he wanted to live in Miami after the baby’s birth, Z said he agreed, wanting to be together as a family and raise their child.

Y and Z travelled to Missouri on 21 September in anticipation of the birth and X was born in September, they were both present at the birth. X was named after both their mothers. They remained in regular contact with W and her family, in March 2015 they had a joint holiday with W in Orlando.

Missouri is not a jurisdiction that has pre-birth orders. X’s original birth certificate was registered in Missouri on 1 October 2014 and named W as the child’s mother and Y as the father. It was accepted in the proceedings in Miami that Y is the biological father. On 3 October 2014 The Circuit Court of Cole County issued a ‘Stipulation and Judgment Determining a Parent-Child Relationship’ declaring that W was not a parent, that Y was X’s legal father and X’s birth certificate was to be re-registered with Y as the sole legal parent. According to Z they were advised at the time it was not possible for Z to be on the birth certificate other than by way of an adoption. Missouri did not recognise same-sex marriage so they could not apply for a step parent adoption, they could apply for a second parent adoption but were advised such applications were not always granted. In addition they were advised against pursuing adoption in the US because as British Citizens it may contravene the provisions of UK adoption law as considered by this court in the case of Re G and M [2014] EWHC 1561 (Fam). In her statement W states she understood at this time Y and Z intended to apply for a parental order in the UK.

Following X’s birth they went to New York to stay with D, then on to their home in Miami in December 2014. Y continued working in the business, they employed a full time nanny and Z was based at home looking for jobs in the US. In January 2015 X was baptised in their local church in Miami, D was one of X’s godparents. Z had secured an E2 visa in February 2015, allowing him to work in the US. Z states his efforts to secure a job were thwarted by his area of expertise and because he was not admitted to practice as a lawyer anywhere in the US.

Whilst it is agreed the parties were starting to experience difficulties in their marriage at this time, they differ as to the reasons. According to Z, he was unable to secure work in the US, he recognised they were struggling to manage financially and he considered he had better job prospects in the UK. He returned to London in October 2015, intending to get work and, according to him, the plan was for the parties to commute between Florida and London. Y denies this was an agreed plan, he states he was increasingly concerned about Z’s lifestyle, Z received an email from his father expressing concerns about his lifestyle on 11 October and with very little notice went to London and then onto Country B to see his father.

Whilst Y accepts the affectionate text communications between them around the time Z left in October, he said he had made it clear by his long letter to Z on 1 November the relationship was over. Z says his contact with X was reduced and he last had Skype contact in December 2015, prior to that there was some Skype contact with Z whilst he was with his family in Country B in late 2015. According to Z, despite Y knowing he had a return flight back to Miami on 23 December Y said he was going away with his parents at that time and in early December sent a text to Z in very unfortunate terms referring to him deserting Y and X and unilaterally stating he and X were going away over Christmas. It is now known that by that stage Y planned for D to adopt X. In his statement Y describes Z’s actions in October and thereafter as abandoning X as he did not request to see X after then until March 2016, he made no financial contribution to her care and the real reason behind his sudden departure was to repair relations with his father in Country B following the latter’s disapproval of Z’s lifestyle.

In Y’s oral evidence it became clear that by 9 November he had written to this court seeking to withdraw the parental order application, he did so without notifying Z. By the end of November he had decided that D should become X’s adoptive parent, legal advice was sought and an adoption application was issued by D in New York on 22 February 2016. Y moved with X to D’s flat in New York in March 2016, Y said they were visited by a social worker as part of the adoption application soon afterwards and an adoption order was made on 24 May 2016. Z first became aware of this a week later in early June. After extensive enquiries he discovered which court had made the order, and successfully applied to set it aside on 21 December 2016. As that decision records ‘…comparing both the adoption papers and [Z’s] motion papers the court finds that adoption papers were less than forthcoming in several regards. It is now undisputed that the Court was not given the full picture of the child’s first year of life, or circumstances of her conception and birth in the adoption paperwork. [D] and [Y] have conceded many of the facts alleged by [Z].’ The key parts that were not disclosed were that the child was planned with both Y and Z to undertake the surrogacy agreement, wherein both parties contributed sperm, in furtherance of producing a child; the parental order application with withdrawn and dismissed with no notice to Z; the adoption papers ‘misleadingly’ state the child had resided with Y and D since birth; the child was named after the mother of both Z and Y; Z and Y had not been separated since 2013 as alleged in the adoption papers and Y had been served with divorce papers in Florida prior to the adoption order being finalised, which had not been disclosed. Z’s application was granted as the court considered Y and D had omitted ‘critical and material facts’ and if known at the time the Court would have found that due process required notice of the adoption to Z. That decision is now the subject of an appeal by Y.

According to Z, it was the parties’ intention to establish their legal parentage by way of a parental order in the UK. Whilst in the UK in February 2015, primarily to enable them to get married for the purposes of his US visa (as their civil partnership was not recognised), they made an application for a parental order on 13 February 2015. Both Y and Z signed the C51 application form where they confirmed they were both domiciled here and had lived at their London flat for the last 5 years.

In April 2015 Z arranged for the relevant parental responsibility forms to be signed by W and Y and then a step parent parental responsibility agreement to be entered into between Y, W and Z. Z received confirmation that his step parent parental responsibility agreement had been registered at the Central Family Court, London on 27 November 2015. Y’s solicitors wrote on 1 June 2016 challenging the validity of Z’s step parent parental responsibility as Y did not have parental responsibility at the relevant time. Z had originally sought a declaration that he had parental responsibility in November 2015. By a consent order made on 27 June 2017 it was accepted by Z that declaration could not be maintained.

Returning to the parental order application neither party attended the first directions hearing on 30 July 2015, according to Z they had not had notice of the hearing date. Russell J adjourned the application, with liberty to restore. Z states due to the parties’ relationship difficulties and his efforts to seek work pursuing the parental order application went on the ‘back burner’. In fact, unbeknown to Z, Y had written to this court on 9 November seeking to withdraw his application for a parental order. That application was granted by the court on 18 December. When Z became aware of that he applied to set the order aside as having been made without notice to him. On 23 December 2016 Y’s solicitors accepted no notice had been given to Z of the application for permission to withdraw, they accepted the order of 18 December should be set aside and they gave notice that they intended to seek permission afresh to withdraw the parental order application. On the 20 February 2017 by consent I set aside the order made on 18 December.

Z thought Y and X were still living in Miami, and on 22 March 2016 he filed divorce proceedings there with a request for a parenting plan and shared custody. He sought to establish his parental rights in relation to X there, where he understood X was habitually resident. He had been advised that he would be considered a legal parent as she was a child of their marriage. According to Z there were difficulties in serving Y with those proceedings, Y informed the process server on 31 March by telephone that he had moved to New York. Z emailed Y on 5 and 13 April and spoke to him on 14 April to say they were trying to serve him, and according to Z, Y hung up. Four days later, on 18 April, Y had issued divorce proceedings in this jurisdiction. Y was not served with Z’s Miami proceedings until 13 May. The first time Z became aware the parental order proceedings had been withdrawn was when he was served with Y’s divorce petition here, which made reference to that. The divorce proceedings here have been stayed pending the outcome of the Florida proceedings.

On 1 June 2016 Y’s solicitors wrote to inform Z that X had been made the subject of an adoption order in the US, that she had been adopted by D and is residing with Y and D. Requests on behalf of Z for further information regarding the adoption proceedings fell on deaf ears. Z instructed lawyers in New York to seek to discover which court made the order, the court in New York disclosed the docket number of the proceedings on 13 July 2016. Z successfully applied to re-open the adoption proceedings. That order is the subject of an appeal by Y dated 1 July 2017, and an application for a re-hearing. In his oral evidence Y said he had given details of the fact that he and Z had entered into the surrogacy arrangement, but appears to have not disclosed that he and Z lived with X as a family in Miami between December 2014 and October 2015, or that there were proceedings issued there by Z. The significance or otherwise of that in the adoption proceedings is, of course, a matter for the court in New York.

There was a hearing in the Florida divorce proceedings on 30 March 2017 to determine jurisdiction and if there was whether the proceedings should be in Florida or New York. Both parties gave oral evidence. I have seen a transcript of the hearing, including their oral evidence. It is understood the hearing was limited to the jurisdiction of the Florida Court to determine a custody/parenting plan application made by Z in March 2016. Shortly before this hearing Y withdrew his motion that Florida did not have jurisdiction because of Z’s lack of standing, however Y maintained that the Florida Court should not accept jurisdiction because X was now resident in New York. Judge Young determined that the Florida court did have jurisdiction and declined to transfer the proceedings to be heard in New York. Z’s application for interim contact was listed to be heard on 31 May 2017. Y sought a stay from the trial judgment pending an appeal, which was refused. Y appealed against the refusal of the stay which was granted, the appeal was determined after this hearing was concluded but prior to judgment. The appeal was allowed, in effect determining that New York was the appropriate forum to determine matters relating to X, as that was where she was living with Y.

In his first statement in these proceedings Y expresses surprise that Z seeks to continue with the parental order application as he does not consent to it being made, did not consider W would agree to it (in fact she supports it) and he is unclear as to the basis upon which Z asserts domicile.

On 17 Aril 2017 this hearing was listed together with one in June to determine the declarations sought as to the validity of the step-parent parental responsibility agreement registered in November 2015. On 27 June 2017 I approved a consent order where Z accepted that at the time his step-parent parental responsibility agreement was signed Y did not have parental responsibility, as a result he did not acquire parental responsibility by the subsequent registration of the parental responsibility agreement.

This hearing lasted two days, both parties gave oral evidence. All parties filed written closing submissions, the detail and clarity of which I am very grateful.

I shall deal with domicile first, as it is accepted if that is not established the application cannot proceed any further.

In his initial statement Z asserts he is domiciled in England and Wales. In his second statement he gives an account of his time since he left Country B in 1993. He went to Country C where he attended university, qualified as a solicitor and lived there for 10 years. Whilst it was open for him to apply for Country C citizenship he said he did not do so. He came to England in 2003 to do a masters at a London university and in 2004 commenced working for a leading UK law firm and qualified as a solicitor here. He moved to another law firm in 2007.

Z obtained indefinite leave to remain here in 2010, and in 2011 secured British citizenship and a British passport.

Following the parties civil partnership in 2008 they purchased their current flat in London, Z asserts ‘It is a three bedroom flat as it was always our intention to have a family. It was our intention to raise our family in England.’

Between 2008 and 2012 Y had a number of jobs, he was made redundant in 2012. In 2011 Z states Y ‘shocked me by saying that he planned to set up [the business] in the USA…at the time, [Y] convinced me it would be a two year project. The plan was to grow the business and then to sell the company onto a larger spirits company. After [the business] had been sold, [Y] would return to London.’

Z was made redundant in 2012 and was unable to secure alternative employment in the UK. Around this time the parties had committed to a mutual plan to have a child through surrogacy. They signed the agreement with the US surrogacy agency, Circle Surrogacy, in October 2012.

According to Z between April 2012 and January 2013 he was travelling in and out of the US assisting with the business, although D sought for him to be removed from any role in the business.

By April 2013 Y was spending increasing amounts of time in the US. Z states he was dividing his time between here, the US and Country B to visit his mother who was ill.

Z states it was around this time they started to discuss the plans following the birth of their child. Z describes the position as follows ‘I was concerned that [Y] would not be able to help me care for our child in London because [Y’s] work [in the business] required him to travel frequently all over the US on business trips. Equally my concern at the time was the cost of living and childcare in London and at that time, we were unable to afford a full time nanny, especially unless had found a well paid job. At that stage I thought the most sensible solution was [Country B], certainly in the short term. My family had a business in Country B and I would be able to work flexible hours, or even from home…’ He then refers to the legal position in Country B regarding same sex relationships and how their relationship would not have been recognised and they would not have been considered as parents to X.

Z went to Country B in April 2013 and worked for the family business, his role there is described as general counsel. Y was then living in the US and they met up every few weeks either in the US, Country B or London. Their joint flat in London was let. It was clear during 2013 there were still discussions about where they were going to live with their child. In June 2013 Z stated that he was not moving back to Europe as he had already made the move to Country B. Z states that comment should not be taken in isolation of all the emails which when taken together demonstrate he thought the best place to raise a child of same sex parents was in London.

In January 2014 the parties signed an agreement to live in Country B with X until she was ‘of school age’. Despite this it is clear this was not an agreed plan and in April 2014 Y confirmed he did not wish X to be raised in Country B. In his second statement Z asserts after this ‘we decided that we would bring our family back to the UK in November 2014’ and attaches some emails to support this contention. Such as an email from Y to their UK neighbour in June announcing they are going to have a baby girl, and will be seeing them in November 2014 with the babyand that the neighbour’s children will be role models for the baby. There are also some from Z to friends that refer to them moving back to London in October and the letting agents confirming it is not worth letting the flat for three weeks after the tenancy ends in early October. All of these emails were sent prior to Z going to the US in August.

Z states in accordance with the decision to return to the UK in November 2014 he travelled to the UK in June and August 2014. In the August trip he went on to the US planning to remain there for X’s birth. He states ‘When I left England on 20 August 2014 it was my firm understanding that we would be returning to England with [X] following her birth around November 2014.’

It is accepted that in August 2014 Y secured an E2 investment visa for 5 years. Y did not inform Z of this until he arrived in August, so it would be a surprise for Z. In his statement Z describes the news as a shock as ‘We had agreed that we would be returning to England with [X] and yet [Y] presented me with an ultimatum: either I agree to remain in Florida or I return to the UK and I could visit him and [X] in Florida.’ In their email exchanges at the time Z states he agreed to remain in Florida for the next couple of years as Y had assured him the business would be sold by 2016. He voiced his concerns about the difficulty in him securing employment in the US but he wanted to ‘live together as a family and raise our child together’. There is no dispute both parties were present at the birth in September 2014, and X remained in their joint care until October 2015. There are differing accounts as to what role each played but it is clear X was cared for in their joint household during that time.

According to Z by October 2015 he had experienced difficulties in securing work in the US, it was clear the business was not going to be sold in 2016 and ‘Florida has become our marital home for longer than we expected. When I left for England in October 2015, I had come to accept that [Y] and [X] would continue to live in Florida for longer than we had originally anticipated.’ He regarded his return to find work in the UK in October 2015 to be a joint plan, according to him, their relationship broke down after his return to the UK.

It is agreed the last time Z saw X was via Skype on 23 December. He has not seen her since. He states Y has been obstructive about contact, Y states Z has not sought contact.

In his statement dated 14 March 2017 Z states ‘It had always been my intention to secure [X’s] legal parentage under English law by way of a parental order. The United Kingdom is the only country with which [Y] and I shared citizenship and where our legal rights as a family would be recognised.[The business] was a business venture with an exit plan and we would have returned to the UK once [Y’s] work had completed with [the business]. If [the business] had failed, under the terms of the E2 visa, we would have 30 days to leave the US. I understand that the visa is dependent entirely on [the business] remaining in business and time spent in the USA on that visa would not count towards time for any other type of visa or a Green card’.

In his second statement Z states he asserts a domicile of choice in England and Wales, from 2012 – 2015 he accepts there was a period when he and Y lived in different countries however he does not accept he abandoned his domicile of choice in England. He accepts during that period there was an ongoing debate as to where they were going to care for X in the ‘short to medium term’ and that it was often a point of contention between them. He relies on the fact that they kept their jointly owned home here and he did not close his bank accounts. He accepts his family remain in Country B and he frequently travels there, although he retains no assets there and states he has only ever been an employee in the family business. He says ‘I visit [Country B] between 2 and 6 times in a year because of my mother’s state of health. I do not intend to live out the rest of my days in [Country B] and the reality is that I have not had the intention to do so since I acquired a domicile of choice in England before 2012’.

In his first statement Y states ‘I cannot confirm [Z’s] asserted domicile but I do not accept he was domiciled in 2015 or now. [Z], who was born in [Country B], and over the past 12 years he has lived in various different countries including [Country C], England and Florida, US. He retains ties to [Country B] which is where his family live.’ A little later Y states ‘I have never been fully clear as to the reasons for the application for a parental order. It was at [Z’s] instigation that the application was made. [X] and I had no need for the order to be made as I was [X’s] legal parent and [Z] was my husband. We lived together as a family in Florida at that time and we had no plans to move to England.’

In his second statement he says the only reason they converted their civil partnership into a marriage in February 2015 was to enable Z ‘to apply for a spousal visa in the USA, as the USA did not recognise our civil partnership. [Z] was making arrangements to live permanently in the US and this was part of that planning process.’ He denies that the business was anything other than a long term business venture. He says the reality was he and Z were living in different countries in the three years prior to X’s birth, they were not settled in London and were considering where they wanted to live. The purchase of the property in 2009 was because that was where they were living at the time, rather than part of any long term plan. After 2012 he said they did not have a plan to remain in London permanently and by 2013 they were both looking to live and settle elsewhere. Y agrees that in the various discussions to consider where they should live with X, options were discussed but London was never the agreed place. In November 2014 Z applied for a US visa because, as Y describes, ‘we were building our life with [X] and we had agreed to live in the US’. Y states the visa was refused as Z had written that they were married when they were not, hence the need to travel to the UK in February 2015 to convert the civil partnership into a marriage.

In his second statement Y states he does not accept Z had a domicile of choice in England at all or ‘if he did, he had certainly lost this in 2013 when he moved to [Country B] with no definite plan to return. I consider it significant to contrast [Z’s] presentation to the court in Florida where he has petitioned for divorce and other orders in relation to finances and [X]. In my view, he has gone to great lengths to establish a connection with Florida and demonstrates a joint intention to live there as a family. To me, this is completely at odds with what he claims in this court.’

Z relies on the skeleton argument filed on his behalf by Mr Setright Q.C. and Mr Gration, supplemented by his detailed written closing submissions. In essence what he submits is that at some point he acquired a domicile of choice between August 2003 and Aril 2013 relying on the fact that he qualified as a solicitor here following the completion of his Masters and practised in this jurisdiction; his relationship with Y was here; he naturalised as a British Citizen (even though that was not necessary as he was a civil partner of an EU national); they purchased a property here with the intention of raising a family there; his oral evidence that this jurisdiction was the only place a gay family could raise a child with the protection of the law. Finally, any visa in the US was, by definition, time limited.

If the court accepts that submission he further submits the evidence since then does not establish his domicile of choice here has been abandoned. The evidence regarding the agreement in Country B in January 2014 was expressly limited until X was of school age. It has to be looked at in the context of Z’s mother’s ill health. He relies on the emails in the middle of 2014 that support his position the parties were considering returning to live in London in November 2014. The change in that was sprung upon him by the granting of Y’s 5 year visa in August, which he only found out about when he went to the US in August 2014. Their email exchanges in early September 2014 make clear Z only agreed to stay in the US for a period of 2 years. He relies on the discussions there were about adoption in the US after X’s birth and the advice they received and followed was, Z submits, in the context of their joint position to establish their joint parentage in England. Z says this was further supported by the completed parental order application signed by both parties in February 2015, and the steps he took here, to secure the registering of the parental responsibility agreements with the court.

Regarding his evidence to the Florida court in March 2017 Z rightly complains about the late reliance on that by Y, but it was clear during the hearing he had a very good grasp of what was contained in the transcripts. He submits Y has sought to ‘cherry pick’ bits of the evidence, that it needs to be looked at in context and warns against using terms in oral evidence in those proceedings as meaning the same in this jurisdiction. He submits there is no inconsistency between his evidence in Miami and his position here.

Ms Fottrell Q.C. and Ms Jones, on behalf of Y, submit it is not clear that Z had ever established a domicile of choice in the UK but, if he had, it was not continuing at the relevant time in February 2015 and it has not been regained. They rely on the somewhat volatile and dysfunctional relationship the parties had in the period from 2012. There were frequent arguments and disagreements about where they would live and in the early stages whether they should have a child (for example, the email sent in April 2014). This remained, they submit, a common theme prior to and after X’s birth. They submit it is revealing that Z asserts he has a domicile of choice in the UK in February 2015 yet has set out a counterfactual narrative in seeking to establish the Florida court has jurisdiction. They rely, in particular, on the following matters in submitting that Z has not discharged the burden of proof on him that the UK was his domicile of choice in February 2015:

In her submissions Ms Markham Q.C. submits there was no real challenge to Z’s assertion in his statement, that he had in fact acquired a domicile of choice prior to 2012. An indicator of that conclusion was his decision to acquire British citizenship, his evidence about the more open and accepting society to gay parents and his wish for X to come back to the UK at school age. It was to this jurisdiction that he returned to in October 2015 to seek employment. She reminds the court that whilst asserting domicile in the parental order application was a consideration, it remains necessary for the court to scrutinise the position.

If the application for a parental order cannot continue it will have the following consequences for X:

Whilst the court needs to consider it, no one has submitted that Y’s domicile was here at the relevant time, despite what he asserted in the parental order application. It could only be by way of establishing a domicile of choice which is simply not supported by the evidence. He has lived in the US since 2013, he intends to remain there and Wart from joint ownership of the property here does not assert any meaningful ties to the UK.

Turning to Z’s position having considered the written and oral evidence available to the court I have reached the conclusion that Z has not established that he was domiciled here in February 2015, the burden is on him to do so and he has not established that it was more likely than not that this jurisdiction was his domicile of choice in February 2015 when the application for a parental order was made. I have reached that conclusion for the following reasons.

Whilst it is correct Z had been living away from his domicile of origin since 1993 and had come here in 2003, qualified as a lawyer in this jurisdiction, worked and acquired a property here those steps did not on their own, in my judgment, evince an intention of permanent or indefinite residence here. Z’s emphasis of his long term intentions and ties to this country have really only come about in the context of these proceedings, to support his contention of establishing domicile and should, in my judgment, be treated with a considerable degree of caution. This is particularly when looked at in the light of what his position has been in the Florida proceedings, where he emphasised the settled nature of his residence in that jurisdiction and the integration in the community there.

It is right that Z acquired British citizenship and a British passport in 2011 and that can be indicators of domicile, but it is not determinative of an intention of permanent and indefinite residence. I suspect Y is right when he said it was motivated largely by convenience for travel.

It is of note that on many occasions Z has been drawn back to Country B, his domicile of origin. It is where his family remain. Whilst he seeks to assert it has been mainly driven by his mother’s ill health, it has clearly been significantly more than that. He returned back to assist with and work in the family business from at least April 2013, with frequent visits in the period before that, and the plan, as at January 2014, was they would live there with X until X was of school age. Even in the context of that fragile agreement, there was no certainty where they would live after that, London was an option but no more than that, it was never a solid agreed plan. In June 2013 Z was in Country B and stated he had no intention of returning to Europe as he had made the move to Country B. Z seeks to resile from that, but what it does show is the continuing magnetic pull of his domicile of origin was still operative then as it has, in my judgment, remained throughout. Whilst he has no property or assets in Country B he continues to receive ongoing financial support from his family there, either directly or through the family business, as he has done from the age of 10. His links with the family business remain strong and ongoing, he remains financially supported by the family business, pays taxes and retains bank and credit card accounts there.

What is clear is that over the period leading up to and following the surrogacy arrangement in 2012 until September 2014 there was an ongoing debate between Y and Z about where they were going to live, living here was never an agreed option. The somewhat vague email references to living in London in the middle of 2014 cannot be taken in isolation and are at best equivocal, they demonstrate continuing uncertainty rather than any solid plan and by August/September it was clear the plan was to make the family home in the US, even making due allowance for the fact that could only be under a time limited visa. In my judgment, the property being retained here was no more than convenience, enabling the option of living here to remain a possible option, rather than any intention to reside indefinitely or permanently here to the extent of supporting this jurisdiction being Z’s domicile of choice.

The continuing uncertainty and debate between Y and Z about where they were going to live from 2012 demonstrates Z did not at that time or since have what Arden LJ described in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 577 at [14] as a ‘..singular and distinctive relationship with a country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days’. At its highest Z asserts a domicile of choice relying on time spent here until 2013, qualifying as a lawyer here, acquiring citizenship and purchasing a property. They may be indicators but they have to be viewed in the context of his ongoing strong ties and links with Country B, his domicile of origin, coupled with the significant periods of time he spent there, and his involvement with and financial dependence on the family business over an extended period of time.

Having stood back and viewed the evidence as a whole Z has not established he had a domicile of choice in this jurisdiction at the time the application was made in February 2015. In my judgment the hard facts relied on by Z, such as period of time, qualification, working, citizenship, ownership of property and paying of taxes are not sufficient to establish that he intended to permanently and indefinitely reside here to support him establishing a domicile of choice. They have, in the circumstances of this case, been elevated by Z to seek to support his assertion of a domicile of choice in the context of seeking to establish this court’s jurisdiction to enable the parental order application to proceed. The acquisition of domicile of choice is a serious matter and not to be lightly inferred. As Baroness Hale stated in Mark v Mark [2005] UKHL [42] ‘English law requires only that the intention [of the person claiming to be domiciled by reason of their intention to reside permanently in the UK] be bona fide, in the sense of being genuine and not pretended for some other purpose…’. A person’s domicile of origin is notoriously adhesive and is described as being more tenacious. In my judgment, it is more likely that Z retained his domicile of origin in Country B. In the light of that conclusion, the parental order application cannot proceed.

In those circumstances, it is not necessary for the court to determine whether the requirement that X must have her home with the Applicants under s 54 (4)(a) is met.