IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008 section 54
AND IN THE MATTER OF L & M (Twins born on 5th May 2014)
Strand, London, WC2A 2LL
B e f o r e :
| XZ & ZZ
|- and -
L & M (Children)
(by their guardian
2nd &3rd Respondents
|Cafcass Legal (acting as Advocate to the Court)
Tracy Lakin (instructed by Barbara Carter) for the 2nd & 3rd Respondents
(By their guardian Ms Jennie Dawe)
Penny Logan (of Cafcass Legal) acting as Advocate to the Court
The 1st Respondent did not attend and was not represented
Hearing dates: 8th July 2015
Crown Copyright ©
The Honourable Ms Justice Russell DBE:
Summary of case and guidance
Chronology & Proceedings
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…
…upon the court recording that, save for the completion of the report by the Parental Order Reporting Officer, which requires the children to be in the United Kingdom, the matter is ready to be listed for a final hearing.
And upon the court recording that the delay in the British High Commission in Delhi, India, in issuing passports for the children L (born on 5th May 2014) and M (born 5th May 2014) is having a significant detrimental effect upon the children's welfare.
And upon the court requesting that Cafcass contact the children's Policy Officer (Ms Hayley Griffiths) at the Foreign and Commonwealth Office as a matter of urgency to seek her assistance.
A. The 1st Applicant remains in India with the children:
B. The First Respondent has been notified of this hearing.
C. The Court invited Cafcass Legal to act as an advocate to the Court in these proceedings and received confirmation from Cafcass Legal that they accepted the appointment.
D. The Court confirmed that the children require separate representation because of the complexity of the legal issues that have arisen in respect of the application and their future and life-long welfare.
E. The Court further confirmed that it is necessary separately to appoint an advocate to the court independent of all of the parties to assist the court in considering issues of law and public policy and regarding the practice of parental order reporters in preparing parental order reports.
F. The Court respectfully request the Foreign and Commonwealth Office (FCO) and the High Commissioner of the British High Commission in Delhi with reference to Jonathan Wharton at the FCO and to Sunandan Sinha, the officers dealing with the citizenship and passport applications in respect of [the children] in Delhi to confirm in writing and by reference to any evidence relied upon the reasons why the citizenship and passport applications made to the British High Commission in Delhi and to the FCO office have not been granted. The Court requires that this information to be sent to Barbara Carter, Solicitor for the Children on or before 12 noon on 11 May 2015.
IT IS ORDERED THAT:
1. This application for a parental order is reserved to Ms Justice Russell and be set down for further directions hearing on 18th May 2015 at 10 am with a time estimate of 1 hour; and final hearing on 8th July 2015 with a time estimate of 1 day.
2. The Applicants are directed to inform the 1st Respondent of the dates of the hearings on the 18th May 2015 and the 8th July 2015 and to inform her that a parental order may be made on that date.
3. Paragraphs 1 and 2 of the order of Her Honour Judge Thomas dated 5 February 2015 are discharged.
4. [The children] are joined as parties to the proceedings and Ms Jenny Dawe is appointed as their Children's Guardian. For the avoidance of doubt, Barbara Carter has been appointed as the children's solicitor.
5. Cafcass Legal is appointed to act as advocate to the Court. The papers in the applications are to be sent by the children's solicitor to Penny Logan at Cafcass Legal immediately.
6. The children's solicitor is directed to take responsibility for ensuring that this order is provided to the High Commissioner at the British High Commission in Delhi with reference to Sunandan Sinha and the Foreign and Commonwealth Office in London and/or Sheffield with reference to Jonathan Wharton and the application for passports and citizenship for these children.
7. The legal representatives are directed to produce a joint document setting out the matters in this case that are agreed and the matters that are in dispute. This document is to be filed and served not later than 4 pm on 13 May 2015.
Permission was granted to apply to me any further directions.
"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,
(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'.
Surrogacy Law: s54 Human Fertilization & Embryology Act (HFEA) 2008
"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."
"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?"
Guidance: distribution of work
"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.
i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.
ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child's place of birth was outside of England and Wales should be allocated to be heard by a Judge of the Family Division.
iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.
iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).
v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (subject to their own guidance and the guidance below).
Parental Order Report
"Nationality8.7. As a result of responses to the consultation, and to ensure parity with adoption legislation, the Parental Order Regulations 2010 now ensure that where a parental order is made in the United Kingdom and one or both of the commissioning couple are British citizens, the child – if not already so – will become a British citizen."
"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."
" 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."
16.35 Powers and duties of the parental order reporter
16.35.—(1) The parental order reporter is to act on behalf of the child upon the hearing of any application in proceedings to which Part 13 applies with the duty of safeguarding the interests of the child.
(2) The parental order reporter must—
(a) investigate the matters set out in sections 54(1) to (8) of the 2008 Act;
(b)so far as the parental order reporter considers necessary, investigate any matter contained in the application form or other matter which appears relevant to the making of the parental order; and
(c) advise the court on whether there is any reason under section 1 of the 2002 Act (as applied with modifications by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010) to refuse the parental order.
(3) The parental order reporter must also provide the court with such other assistance as it may require.
(4) The parental order reporter's duties must be exercised in accordance with Practice Direction 16A.
(5) A report to the court by the parental order reporter is confidential.
Practice Direction PD 16A
10.1 The parental order reporter must make such investigations as are necessary to carry out the parental order reporter's duties and must, in particular –
(a) contact or seek to interview such persons as the parental order reporter thinks appropriate or as the court directs; and
(b) obtain such professional assistance as is available which the parental order reporter thinks appropriate or which the court directs be obtained.
How the parental order reporter exercises duties – attendance at court, advice to the court and reports
10.2 The parental order reporter must attend all directions hearings unless the court directs otherwise.
10.3The parental order reporter must advise the court on the following matters –
(a) the appropriate forum for the proceedings;
(b) the appropriate timing of the proceedings or any part of them;
(c) the options available to it in respect of the child and the suitability of each such option including what order should be made in determining the application; and
(d) any other matter on which the court seeks advice or on which the parental order reporter considers that the court should be informed.
10.4 The advice given under paragraph 10.3 may, subject to any direction of the court, be given orally or in writing. If the advice is given orally, a note of it must be taken by the court or the court officer.
10.5 The parental order reporter must –
(a) unless the court directs otherwise, file a written report advising on the interests of the child in accordance with the timetable set by the court; and
(b) where practicable, notify any person the joining of whom as a party to those proceedings would be likely, in the opinion of the parental order reporter, to safeguard the interests of the child, of the court's power to join that person as a party under rule 13.3 and must inform the court –
(i) of any notification;
(ii) of anyone whom the parental order reporter attempted to notify under this paragraph but was unable to contact; and
(iii) of anyone whom the parental order reporter believes may wish to be joined to the proceedings
The child's home
"Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, and social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial)  INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation)  EWHC 1979 (Fam),  1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child's welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy)  EWHC 3146 (Fam),  Fam 106,  1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future."
 Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor's legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor's office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child is barred by such mishap? Let it be assumed, though in truth, and with all respect to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others  EWHC 595 (Fam), namely to provide for the speedy consensual regularisation of the legal parental status of a child's carers following a birth resulting from a surrogacy arrangement; that policy surely does not require section 54(3) to be read as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she referred to as delay over "a protracted period", but that is a different point.
 I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54 , which provides that "the court may make an order … if … the [relevant] conditions are satisfied." I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.
 I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period."
39. By virtue of the Human Rights Act 1998 the court has a duty to read and give effect to the law, as far as possible, in a way which is compatible with the children's and the Applicants' right to respect for family life under Article 8 of the European Convention on Human Rights (ECHR). The European Court of Human Rights has ruled in a number of cases going back many years from Marckx v Belgium (1980) 2 EHRR 330, Johnston v Ireland (1987) 9 EHRR 203 and Kroon v Netherlands (1995) 19 EHRR 263, that the right to respect for family life under Article 8 ECHR includes the right to adequate legal recognition of biological and social family ties.
40. This case engages the Article 8 rights of both Applicants and of the two children. While the ECHR is not part of the substantive law of the UK, the effect of the Human Rights Act 1998 is to require that UK domestic law is interpreted so as to be compatible with convention rights. That the interpretation should be 'practical and effective' is well established and that interpretation should be the most appropriate to realise the aims and objectives of the ECHR; Artico v Italy (1981) 3 EHRR 1 and Wemhoff v Germany (1979) 1 EHRR 55. In Odievre v France (2004) 38 EHRR 43 the ECtHR held that Article 8 ECHR also encompasses the right to an identity. I keep in mind as I must Article 8 of the ECHR which provides:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or in the economic well-being of the country, for the prevention of crime and disorder, for the protection of health or morals, or for the protection of the rights and freedoms of others.
41. The sine qua non of Art 8 is the right to live one's personal life without interference; it is the right to one's personal integrity, therefore if members of a family are prevented from sharing family life together, Art 8 (1) is probably infringed; Anufrijeva v Southwark London Borough Council and others  EWCA Civ 1406,  1 FLR 8. That the relationships between the Applicants and A and B constitute a 'family life' is self-evident on the facts. The existence of a family life is a "question of fact depending upon the real existence in practice of close personal ties" K v UK (1986) 50 DR 199. Even without the parental orders sought or adoption orders sought this is a family with rights to have their family life respected. Moreover as the provisions of the Adoption and Children Act 2002 include at s1 (4) (f) as part of the welfare considerations "the relationship the child has with relatives, and any other person… whom the court considers to be relevant" it can be legitimately argued that the granting of parental orders would be in accordance with UK legislation and therefore would be both lawful and proportionate in keeping with Art 8 (2) notwithstanding wider public policy issues alluded to above and below.
Immigration and citizenship
 So much for the authorities. The law, as I have said, is clear and I do not propose to add to the jurisprudence on this topic. I simply make the following points by way of emphasis:
(i) The functions of the court under the Children Act 1989 and of the Secretary of State under the Immigration Act 1971 and related legislation are, by and large, separate and distinct. The court and the Secretary of State are performing different functions.
(ii) The court when exercising its powers under the Children Act 1989 is not entitled to have regard to immigration policy. It must be guided by the interests of the child.
(iii) The court when exercising its powers under the Children Act 1989 necessarily has to apply a different test from the test that the Secretary of State applies:
(a) So far as concerns the Secretary of State the child's interests are not paramount. There is a balancing exercise in which the scales start even.
(b) In contrast (and assuming that the threshold is established in those cases where there is a threshold to be met) the court has to apply the principle that the child's welfare is the paramount consideration.
(iv) Where the proceedings under the Children Act 1989 relate to a child who is liable to removal or deportation the jurisdiction should be exercised very sparingly.
(v) If, apart from immigration questions, there is no genuine dispute concerning the child, then the court must not allow itself to be used as a means of influencing the decision of the Secretary of State. Indeed, the use of the court's jurisdiction merely to attempt to influence the Secretary of State is an abuse of process.