X & Anor v Z & Ors

The court is concerned with an application for a parental order in relation to B, now age 19 months. The applicants, X and Y, seek this order to secure their legal parental relationship with B. The respondent to the application is Z, who was the gestational surrogate, and B, through her Children’s Guardian, Ms Biggs. Z carried B as a result of a surrogacy arrangement entered into between the parties in this jurisdiction on 6 November 2020. Z has been given notice of this hearing, has engaged in email exchanges with Mr Niven-Philips, the child’s solicitor, and has been spoken to by Ms Biggs. Z did not attend this hearing.

It is accepted that all the criteria under s 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008) are met save for one, the requirement of domicile. Both applicants were born in the US and, for them to be able to meet the provisions in s54(4)(b), at least one of them will need to establish they had a domicile of choice in this jurisdiction both when the application was issued in November 2021, and at the time when the court is making the order in March 2023.

Before turning to consider the background and evidence, this case is another timely reminder of the need for parties to surrogacy arrangements to understand the legal consequences and implications of the agreement they are entering into. As has been made clear by this court on many occasions before, a parental order is a transformative order; it changes in a lifelong way the legal status the child has with the parties to the proceedings. If a parental order cannot be made for any reason, the legal parental relationship will remain with the birth mother, with all the lifelong consequences that flow from that, even though everyone may agree the child will remain living with, and be brought up by the commissioning parents.

In relation to this application, whilst the welfare considerations for this order to be made are strong, it is still necessary for the s54 HFEA 2008 criteria to be satisfied before the court can turn to consider the child’s welfare in accordance with s 1 Adoption and Children Act 2002.

The applicants have been critical of the delays that have taken place in dealing with this application. They are right that there were initial delays. The application was issued in November 2021. It was listed for a final hearing before the magistrates in August 2022 when the issue of the difficulties with the evidence to establish domicile was raised, and the application was re-allocated to High Court Judge level. Further evidence was directed to be filed by the applicants, with encouragement for them to seek legal advice. Having considered the applicants further evidence I made directions on the papers on 31 October 2022 and listed the matter for hearing on 6 December 2022. After hearing submissions at the hearing on 6 December 2022 I joined the child as a party and listed the matter for this hearing. On the three occasions when directions for further evidence have been made in August, October and December 2022, the focus has been on the applicants providing further evidence about domicile, and demonstrating the evidential basis upon which they say their domicile of choice is in this jurisdiction. If that evidence had been provided earlier by the applicants, the delays would have been much reduced.

Both applicants were born in the US. They met in about 2014 and married in 2017 in the US.

In late February 2020, they came to the UK, having visited here on a number of occasions beforehand. They took short term lets in various parts of London and then a longer term let in central London for 12 months in December 2021.

They wished to have a family of their own. Their statements confirm that Y suffered an accident a few years ago which required surgery to cause some bone fusion and was advised that it would be difficult for her to carry a pregnancy.

The applicants decided to pursue surrogacy and embryos were created using both their gametes on 31 October 2020 at the London Women’s Clinic (‘LWC’).

Following introductions via a website, the applicants entered into a surrogacy arrangement with Z on 6 November 2020, and the embryo transfer took place at the LWC on 4 December 2020.

B was born in 2021 and was placed in the applicants’ care at birth. The applicants returned to live in the London property, although they travelled extensively, referring in their oral evidence to spending a month each in Italy, Spain and Denmark.

In November 2022 they went as a family to Hawaii to enable Y to undertake fieldwork that had been delayed during the pandemic. In their oral evidence, Y said it was connected to the Harvard University Extension School Arts programme. Initially it was unclear how long they would be there. The most recent information is that this fieldwork will be concluded by July 2023. The applicants joined this hearing remotely from Hawaii.

B remains in their full time care.

The letter from LWC dated 8 November 2021 establishes that B was carried by Z and that there is a biological link between both of the applicants and B (s54(1). The applicants married on 17 September 2017 (s54(2)) and the application, though undated, was issued within six months of B’s birth, as all the documents suggest it was issued in November 2021 (s54(3)). B had her home with the applicants at the relevant times, namely on the issue of these proceedings and at the time when the court was considering making a parental order (s54 (4)(a)). Both applicants are over the age of 18 years (s54(5)) and Z has given her consent to the court making a parental order and the document she signed was witnessed by Cafcass (ss54(6) and (7)). The surrogacy agreement provided for payments of expenses totalling £15,000. Although there is no expenses list individually itemised, the evidence does not suggest this sum was used other than for expenses reasonably incurred and, if there was any sum left, it was relatively modest and should be authorised in accordance with the principles set out in Re X (A Child)(Surrogacy: Time Limit) [2014] EWHC 3135 [75] as was done by Russell J in Re A,B and C(UK surrogacy expenses) [2016] EWHC 760 (Fam) [26]) (s54(8)).

In Y v Z [2017] EWFC 60 I summarised the relevant authorities as follows at [13 – 15]:

In Re G and M [2014] EWHC 1561 (Fam) I considered circumstances where the applicants had only recently moved to this jurisdiction, stating:

The applicants have filed five written statements, some of which are joint and they both gave oral evidence. Only two of the statements are signed but, in their oral evidence, the applicants confirmed they were all true.

In their statements and oral evidence the applicants repeat that they decided to live and raise their children in the UK. In their first statement, they said they are renting in London and are ‘in the process of either a long lease or purchase of a home’ in the area. Regarding work, their first statement states they have ‘transitioned their work and professions to be based in the UK and have established necessary legal and banking relationships for this’ and then refer to two UK based companies that have been established. As a result of their wish to make London their permanent and forever home, they began discussions with the LWC and with Z while still living in the US, with ‘the intent to be resident in the UK by the time the baby was born’. Their first statement refers to the challenges of doing the procedures during COVID and describe it as ‘very challenging with several flights we had to make back and forth for blood work, gamete samples, waiting periods, meeting Z etc’.

In their first statement, they describe their delight when Z became pregnant continuing ‘In the summer of ’21 we had finally made the permanent move to the UK and were staying near Z so we could be close by whenever the baby was born’, they stayed for an additional two weeks in the area after B was born and then ‘moved to London as a new family of three’.

Their second statement, dated 19 September 2022, confirms they had not yet met the requirements for citizenship but planned to apply as soon as they are eligible which they expected to be the next three years ‘based on a UK ancestry or based on indefinite leave to remain based on private life’. That statement lists fourteen matters they rely upon to demonstrates they have made this jurisdiction their domicile of choice. Their list includes their rented accommodation; not having retained a residence in the US; the fact X undertook university studies here in 2011-2012 and 2020-2021; they have established two companies here; they have relatives here born in 1854 and 1821; they each have an NHS number; have a bank account here; do all their shopping in the UK; have plans to purchase larger accommodation; attend weekly church services; Y is a member of the local residents association; have UK mobile numbers; their daughter was born here and has a UK passport; and they have not been physically present in their jurisdiction of origin for 2 years.

In their two statements in December 2022 X stated ‘I’ve spent more time in England than I have any other location during the previous 10 years. Y has also experienced life in the UK having studied at the University of Arts London between 2017 and 2019 in addition to our extensive travels’. In that statement, they describe that, when they moved to the UK in 2020, they did so wanting to make the UK ‘our permanent home and we were sure about that decision because we had both spent lots of time in the country beforehand.’ They acknowledged they travelled regularly but stated they ‘love living in London for a number of reasons, including a. It is geographically central to a working remote lifestyle as you hit more major time zones than any other location; b. We love the architecture and culture; c. Importantly, we feel it is the best place to raise our children (we hope to have another child through surrogacy in the near future). The nannies, child support and school system appeals to us more than anywhere else in the world; d. London is well connected to most of the world which enables us to travel with our family easily’.

In 2020 X set up two UK based companies that will be used to operate his urban development business. His December 2022 statement stated ‘they are not yet generating much income due to it being early days and so they have not yet paid UK corporation tax. I expect this will change in time.’ In his oral evidence X confirmed that both he and Y remain registered to pay tax in the US.

X confirmed that, whilst he completed his Masters at Cambridge in 2021, Y was undertaking a Masters at Harvard, although her program was 95% remote so she only spent 8 weeks studying at Harvard. X plans to undertake a PhD in this jurisdiction in the future. Their 12 month rented tenancy commenced in December 2021.

In the December 2022 statement there is some generalised information about plans for B’s schooling here, stating they ‘have been actively considering schools in London’, plan for her to attend one in central London and make a final decision on school choice ‘once we have bought our home’.

In his December 2022 statement X states ‘Our move to the UK has only been recent but it was a decision made with plenty of experience of what life would be like for us in the UK and additionally we were able to put context to that decision through our extensive experience in other countries. We were certain about our decision to make the UK our permanent home when he made it, and that remains our position. We have no intention of returning to live in the US and it is not where we want to raise B. We believe that the UK is better suited for us to raise her and we much prefer the education system in the UK as well as the diversity and lifestyle in London. We have not made an application in the United States to establish our legal parentage.’

In the most recent statement, in February 2023, Y confirms the family has been away from London ‘for sometime’ due to the fieldwork she is undertaking in the US as the final part of her course at Harvard. She confirms it is due to finish on 15 July 2023. She re-iterates that London is ‘home for us’ and confirms the continuing connections with nannies and friends here. She confirms that they continue to look for housing here, she undertook a ‘second IVF transfer in April 2022 and our embryos are still stored’ in LWC, she has acquired a management position based in London with the model agency she had worked with and remains registered with a doctor here.

In the oral evidence given during this hearing, X confirmed they were both still registered to pay tax in the US. He recognised that at some point it does need to change, but intends to delay that for as long as possible. He agreed the tax authorities in the US still considered him to be resident there and he had a mailing address, using a registered agent based in the US for that purpose. He confirmed he had no income in this jurisdiction and no assets in the US. When asked about the recent discussion with Ms Biggs in February 2023, he said the intention of them both is to return to the UK in July. He agreed they had considered getting a US passport for B, but decided not to.

In Ms Bigg’s report dated 3 March 2022, she sets out her account of her discussions with the applicants and states as follows ‘The couple’s journey through surrogacy took place during the Covid-19 global pandemic when they were living in New York City in the USA and X was in the UK. Despite the challenges this posed, X and Y were able to create two embryos through IVF treatment at the London Women’s Clinic in London. X and Y relocated permanently to the UK in the summer of 2021’. This was prior to B’s birth.

In Ms Bigg’s more recent contact with the applicants on 22 February 2023, X expressed his frustrations with the legal process regarding this application, as he considers the issue of domicile is a subjective one that he believed has been satisfied. In that conversation, according to Ms Biggs, the applicants did not give any fixed date when they planned to return to this jurisdiction and implied that, due to his frustration about how long these proceedings had taken, they had no intention of returning to this country. In her oral evidence Y felt this was said out of frustration and anger. They indicated they had hoped to ask Z to have another child for them but felt what was happening with this application was affecting that process.

The burden of proof regarding domicile is on the applicants. It is a question of fact. The standard of proof is the balance of probability. In summary, they must satisfy the court that it is more likely than not that at least one of them has formed an intention to permanently and indefinitely live in this jurisdiction at the relevant times.

In this hearing the court had the benefit of not only considering the written evidence but also the oral evidence from both X and Y, who were both asked questions by Mr Niven-Philips and the court.

On behalf of B, Mr Niven-Philips has provided careful and balanced written submissions. X and Y have not provided any response to those submissions.

Mr Niven-Phillips makes clear in his document that Ms Biggs remains of the view that B’s welfare would best be met through a parental order being made, as that would reflect what the parties had intended and the reality of B’s life. He recognises that, even though there are the strong welfare considerations, the court is not exercising a welfare jurisdiction when determining the issue of domicile.

Mr Niven-Phillips reminds the court that it needs to consider the broad canvas of facts relied upon by the applicants in support of their contention that they have acquired a domicile of choice in this jurisdiction. Whilst the court does need to consider what the applicants say about their intention, he submits the court should be cautious is accepting X’s position that what the applicants say in their statements alone is sufficient. The court needs to consider whether there is any other evidence that is consistent with those self-proclaimed declarations of intent.

Mr Niven-Phillips drew the courts attention to the following matters:

Mr Niven-Phillips realistically acknowledges that there are features that run contrary to the applicants’ stated intention. They have only been here for a limited period of time, there is a lack of a settled immigration status to remain living here, they lack a settled home here and they remain resident for tax purposes in the US.

He submits that taking all these matters into account on a ‘fine balance’ the court could, if it accepts the applicant’s oral and largely uncorroborated written evidence, determine that the applicants had a domicile of choice at the relevant times.

This case is particularly difficult as it is hard to ignore the fact that this is an order that all parties agree should be made and is one that is said to meet the welfare needs of this child. It is counter intuitive to do anything other than try and seek that outcome. However, the court has to be careful not to find that the domicile requirement is met unless there is the evidence to support it, however powerful the welfare considerations maybe. The court’s task has been hampered by the applicant’s approach to this application and their failure to provide documentary evidence to support their written statements.

The issue of whether domicile has changed is a question of fact. The court must look at the wide evidential canvas, in the context that it is considering whether the applicants have discharged the evidential burden on them. In looking at intention the focus is on an intention to reside permanently, or for an unlimited time. The court needs to consider with caution a self-proclaimed declaration to live here, unless it is corroborated by actions that are consistent with it.

I agree with Mr Niven-Philips, this case is very finely balanced but having considered all the evidence I have reached the conclusion that domicile of choice has been established at the relevant times. That conclusion has not been reached without considerable hesitation and I recognise is largely based on the court accepting the account given by the applicants being credible and truthful. Whilst it only needs to be established by one of the applicants the reality in this case is the evidence they rely upon is interdependent and they have both discharged the burden. I have reached that conclusion for the following reasons:

Standing back and viewing the evidence as a whole, I find on a fine balance that the requirement in s 54 (4)(b) that at least one of the applicants had their domicile of choice here at the time when the application was issued and when the court is considering making an order. In doing so I make it clear that in the event of the applicants having another child through a surrogacy arrangement in the UK and a parental order application is made, the court will need to evaluate the question of domicile then, in the light of the evidence at that time.

Turning briefly, but importantly, to consider whether making this order will meet B’s lifelong welfare needs, the evidence clearly establishes that it will. She has been cared for by the applicants since soon after her birth. Following making her own enquiries Ms Biggs makes a clear recommendation to the court that a parental order should be made, which I accept and make a parental order in favour of the applicants.