Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|- and -
|N (by her children's Guardian Ms Teresa Julian)
Ms Deirdre Fottrell Q. C. & Ms Melissa Elsworth (instructed by A City Law Firm) for the 1st Respondent
Mr Christopher Osborne (of Cafcass Legal) for the 2nd Respondent
Hearing dates: 5th – 7th February 2019
Crown Copyright ©
Mrs Justice Theis DBE:
(i) There is a biological link between one of the applicants (K) and N and she was carried by P (s54 (2).
(ii) The application was made in March 2018, within 6 months of N's birth (s54(3).
(iii) L's domicile of origin is this jurisdiction (s54(4)(b)).
(iv) Both applicants are over 18 years (s54(5).
(v) P and her husband have consented to the court making a parental order, freely and with full understanding of what they were consenting to. They have each signed a Form A101A which is notarised and they have had notice of this hearing. Such consent in the case of P was given more than 6 weeks after N's birth (s54 (6) and (7)).
(vi) In accordance with the surrogacy arrangement the applicants paid the expenses set out in their joint statement in support of this application. The agreement provided for an expenses cap of $2,000 per month, receipts were submitted and reimbursed, in addition to lost wages. It is accepted and agreed these amounted to 'expenses reasonably incurred' and consequently did not require the authorisation of the court (s54(8)).
(i) S 54 (2) which provides 'the applicants must be…( c) two persons who are living as partners in an enduring family relationship…'
(ii) S 54 (4) which provides 'At the time of the application and the making of the order (a) the child's home must be with the applicants'
Taking them each in turn.
Enduring family relationship
'59. I agree entirely with Theis J's powerful and compelling reasoning. Her focus was on section 54(4)(a), but in my judgment her reasoning applies mutatis mutandis with equal force to section 54(3).
60. I add two things. First, I draw attention to the fact that Theis J was prepared to read down – and in my judgment correctly prepared to read down – section 54(4)(a) to enable her to make a parental order after one of the commissioning parents had died notwithstanding that section 54(4)(a), in contrast it may be noted to section 54(3), seemingly requires the relevant condition to be satisfied both "at the time of the application" and "at the time of … the making of the order." If that degree of 'reading down' is permissible in relation to section 54(4)(a) – and Theis J held that it was, and I respectfully agree – then the lesser degree of 'reading down' required in relation to section 54(3) is surely a fortiori.
61. The other point is this. Theis J focused on that aspect of Article 8 which protects "family life", but Article 8 also protects "private life", and 'identity', on which she appropriately laid stress, is an important aspect of "private life". So, any application for a parental order implicates both the child's right to "family life" and also the child's right to "private life". The distinction does not matter in the circumstances of the present case (see further below) but I make the point because it is, I suppose, possible to conceive of a case where, on the facts, it might be more difficult or even impossible to demonstrate the existence of "family life." '
The child's home
(a) was satisfied at paragraph 
'There are, in my judgment, two reasons why this question should be answered in the affirmative. In the circumstances as I have described them at paragraph 8 above, X had his 'home' with the commissioning parents, with both of them, albeit they lived in separate houses. He plainly did not have his home with anyone else. His living arrangements were split between the commissioning father and the commissioning mother. It can fairly be said that he lived with them.'
Discussion and Decision
'I am sure that the hon Gentleman would agree with the principle that the family division of the High Court, with its experience, is the best place to test whether a relationship is an enduring one. That decision is better made by the courts that by Parliament seeking to put in arbitrary time periods or definitions, however well-meaning we may want to be. The ultimate test when issuing the parental order is what is best for the child.'