SITTING AT ROYAL COURTS OF JUSTICE
Royal Courts of Justice
London, WC2A 2LL
B e f o r e :
|IN THE MATTER OF THE HUMAN FERTILISATION & EMBRYOLOGY ACT 2008, s.54|
|AND IN THE MATTER OF THE FAMILY PROCEDURE RULES 2010 part 13, rule 13.8|
|- and -|
|(3-5) THE CHILDREN||Respondents|
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This transcript is subject to Judge's approval
MS SEGAL (instructed by Ms Little of Russell-Cooke Solicitors) appeared on behalf of the Applicants.
THE FIRST & SECOND RESPONDENTS were not present and were not represented.
MS FOTTRELL QC (instructed by Ms Thomson) appeared on behalf of the Respondent Children, through their Children's Guardian.
Crown Copyright ©
MRS JUSTICE THEIS:
"It is established practice in adoption applications with international elements for the court to notify the Home Office and ask whether it wishes to intervene in the case. As a result of this practice, consideration of the role of the Home Office is to be given at the first directions hearing in an application for adoption as provided for in Practice Direction 14B of the Family Procedure Rules, rule 14.2D(ii). It is not always necessary to do so in applications for Parental Order applications, nor is it required by the Family Procedure Rules part 13. It is clear however that in this case that notification and/or invitation should have been given on the face of the court order to the Home Office, the Passport Office and the Foreign & Commonwealth Office at the first opportunity after it had become apparent that there were difficulties in the children leaving India. As noted by both Ms Cronin and Ms Logan it was only when the matter was the subject of an order and request made by a High Court judge that formal if partial explanations for the delay were forthcoming."
"I will always miss and mourn for [our child]. It's not something you can ever truly recover from. I cry when I talk about [our child], but I do not consider that to be unusual or surprising. The early years carry the intensity of grief but years later the loss can hit you at any time without warning, and feels as intense as it did in the immediate aftermath of [our child's] passing. I manage my grief and sadness. Special days are particularly hard. I was offered counselling, but never went to it as I did not feel that it would help me. I did go to a church and meet other people who'd lost children. I went three times and it was helpful. I recall that A went to counselling two or three times."
"I started the enquiries when we were in Iran. We were speaking with C, who is a distant relative, and E. Both were aware of the tragic events in our family. The issue of surrogacy came up. The idea was put forward that E would help us arrange the surrogacy using C as a surrogate. They acted purely for humanitarian reasons, and they are both kind and caring individuals. The surrogate obviously had the agreement and blessing of her husband as well."
"The clinic advised about the surrogacy itself, and the intermediary helped with the paperwork, including the surrogacy agreement [which is in the bundle] which was signed by C and her husband. All the procedures were followed under the guidance of the specialist doctor and the Clinic. The contracts were processed by a notary public office specialisation in this particular field. The relevant paperwork and their translations relating to both the surrogate mother and her husband have all been submitted to the court."
"I knew immediately how much I loved being a mother. I knew too that we had so much to offer a child, and how much love and security we could give them. It was certainly a process for me to come to accept that I was not able to give birth to our child, and then that the child would not be made of our genetic material. I needed time to process that, but I also knew that biology was such a small part of the picture. It was after this that we accepted the option of a donor egg. Having come to that realisation myself however, it had been more difficult to be outwardly open about it. We are intensely private people. To lay open so much of ourselves in such a public way has been difficult. I wanted so much to be their natural mother, and I felt guilty that I could not be. I realise now that maintaining there was a genetic connection when there is not was wrong, and I have caused some delay for the court and the immigration process as a consequence, for which I am personally very distressed.
E, the intermediary, knew that the eggs were donated. I don't know what the surrogate knew at the time, but I can assure the court I've now told her the eggs were donated. She was not concerned about this, and just wanted to help us."
The applicants have not yet made any immigration application. As Ms Fottrell observed, on the face of the information the court has, they have been badly served by the lawyers they instructed.
"During the Skype visits the children appeared clean and well-presented. The children bear a striking resemblance to A, and appear relaxed and settled in their home environment. The parents and the children have a warm and loving relationship. As developing children, they are likely to want to be cared for in an environment where their physical, cognitive, social and emotional needs are well met, and where they are provided with safe and consistent care by their adult care-givers.
I have thought very carefully about whether my assessment is deficient for want of seeing the family in all the same space. In my professional view I've been able to assess whether the children's welfare is best served by the making of the order. I've been able to get a sense of who the children are, and how much they are loved by their parents. If the children were physically in the UK I might ideally wish to see them but I am not of the view that in this case any further visits are necessary, and therefore it is my view that I have observed and assessed them to be able to put forth a clear recommendation.
In the circumstances of this family it is also my view that there is a very strong welfare case for the Parental Order being made to permit the children to move full-time to the family home in [England]. I am impressed that the parents have now been able to make arrangements in Iran, but there are cultural reasons why remaining in that country is not in the children's interests. The parents have been through a lot personally, and they would be able to focus entirely on the children if the orders were made and settled. These are strong welfare considerations that have informed my analysis of the case."
Section 54 Criteria
"The commissioning parents were separated at the time the application was issued but they were not divorced so they remained husband and wife within the meaning of s.54(2)(a) and are now, as I've mentioned, reconciled. They made the application jointly so it was within the meaning of s.54(1) an application made by two people. The real question arises in relation to s.54(4)(a): can it be said that X, the child's, home, was 'with them' at the time of the application. It plainly is now."
He continues at :
"There are in my judgment two reasons why this question should be answered in the affirmative. In the circumstances as I have described them in  above, X has his home with the commissioning parents, with both of them, albeit that 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, and it can fairly be said that he 'lived with' them."
"As I have set out in the statement we are fully settled and integrated into life in the UK. When [our child] was born we had every intention and did bring [our child] up in the UK, only rarely travelling to Iran to see family once we were allowed to do so. [Our child] was schooled in mainstream UK education and was fully integrated into our local community, as we all were as a family. My husband set up a business in the UK, and we were reliant upon the best that the British healthcare system offered both myself and A and [our child] when most in need. We do not have any property or money in Iran, and our bank accounts are here. Our home is here.
Whilst we travelled to Iran in order to arrange the surrogacy, I've never considered it my home. It has become increasingly apparent that the air quality in Iran is harmful to my health, and for that reason alone I would never return there to live permanently. All of my health needs have been managed in the UK. I do not consider my health needs could possibly have been managed as efficiently as in the UK, but from my perspective I simply do not feel at home in Iran. The culture and the life there is quite alien to me after years in this country.
Most importantly for me however is that the whole of [our child's], life was spent in the UK. Our memories, the places we visited together, the things we did together, are all based in the UK. I simply could not imagine living anywhere else. [Our child ]lived here all her life, it was [our child's] home. Our home remained in [England ]in the years after [our child's] death, and it remains our home today despite, out of necessity, having to travel to and from Iran. Put simply, I will never leave my [child]. It is [my child's] final resting place, and I would not ever think of living elsewhere. I had already established a home with A and [our child] here. It was where we as a family resided and where we intended to reside. In that regard, nothing has changed."
"C confirmed that she had been happy to act as a surrogate for the intended parents because she knew they were not in a position to have any children themselves, and her actions were motivated by kindness."
That statement by her, as recorded by Miss Catto, supports what is in the documents.
"Investigate the matters set out in s.54(1) to (8) of the 2008 Act, as required under the Family Procedure Rule 16.352A, and to do so in accordance with para.10.1 of the Practice Direction 16A which gives further directions as to how those investigations are to be carried out, including that the Parental Order reporter 'should contact or seek to interview such persons as the Parental Order reporter thinks appropriate, or the court directs'.
The combined provisions of s.54(4)(a), that is the child's home 'must be' with the applicants, the emphasis on the welfare of the child provided by the 2010 regulations, the incorporation of s.1 of the Adoption and Children Act 2002, and the procedural rules and guidance, are that to be able to investigate as required and to base their conclusions and recommendations as to the subject child's welfare on evidence, the Parental Order reporter must see the child with the applicants."
"The Parental Order reporter must make such investigations as are necessary to carry out the Parental Order reporter's duties. They 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."
At  Russell J referred to the internal CAFCASS guidance available for parental order reports. The guidance did not require in terms that the parental order reporter sees the child, but since that guidance was issued, further work was undertaken within CAFCASS as a result of which the fact sheets were produced for commissioning parents who are applying for a parental order. And in the fact sheet entitled, "Parental Order reporters", intended applicants are told that they will be seen by the parental order reporter with their child. These documents or fact sheets were published within weeks of the final hearing of that particular case in 2015.
"It is the view and guidance of this court that the Parental Order reporter's investigation in any case must include the child being seen with the applicant unless there are compelling and exceptional reasons based on the child's welfare why such observations cannot take place, or where there is sufficient independent evidence pertaining to the child's welfare from an alternative source."
Russell J then referred to a decision of mine in Re A, which was a case about a parental order application where the child remained in South Africa, arrangements had been made that a detailed social work assessment took place in South Africa which informed the parental order reporter here.
Turning now to consider the lifelong welfare needs of these young children. In addition to the very engaging video I had the privilege of watching today, they are brought to life by B in her statement.
66 B has shown enormous strength to be able to overcome her naturally strong feelings of wanting to preserve her privacy. She has found the courage to reveal the correct and true position about the donor egg so that C and her husband are aware of what the reality is, and importantly for the children in relation to their history.
"Given the geographical limitations, it's not been possible to observe the children in a more conventional way by direct face-to-face meeting with either B or A. As noted above, I have seen the children via Skype visits on two occasions, and had no concerns about their welfare or presentation during these calls, and in fact I assess them as to be making good progress, and be happy children. The children were dressed in clean and age and weather-appropriate clothing, and appeared alert and well-settled in their environment. A was physically present for the children for one of the Skype visits, and although I was not able to observe him performing any specific parenting task, I did have the opportunity to see them together, and I could observe the warm, loving relationship between them.
I have visited the family home, and have observed this to be clean and well-furnished. A and B have showed me photographs and videos of the children in which they appear to be doing well, and I have observed the intended parents to speak warmly and proudly about the children. It is my understanding from the family GP there are no welfare concerns in relation to the commissioning couple's basic care of their eldest child, and agency checks indicate the family has not had any previous involvement with the Local Authority Children's Services, which would suggest that there were no issues in their care of their child previously. I remain concerned however that there are several areas in relation to the personal and practical circumstances of the intended parents which, when considered cumulatively, could indicate a need for the provision of support moving forward to ensure the children's long-term welfare.
The intended parents have been through a lot, and the family may need some professional input in the coming months and years. As noted in my previous report, both A and B have shared significant information in relation to their health, all of which could have an impact on their parenting capacity […]
Though the parties do not consider their health issues are likely to impact on their parenting capacity, I remain concerned that both experience a degree of physical limitation which could impact upon their capacity to manage the competing needs of very young children, and may mean that they could benefit from some additional support.
Given the understandably significant impact that their child's passing has had upon the intended parents, I remain of the view that they will need to have access to additional support when the children arrive in the UK, to assist the parties in adjusting to the emotional demands and physical practicalities of parenting in the wake of such a significant loss. This will be particularly necessary if the children present with any developmental delays or issues arising from their prematurity or otherwise.
The financial circumstances of the intended parents also cause me some concern. […] Furthermore, whilst B and A made practical preparations for the children by purchasing cribs, clothing and other necessary equipment, there has been significant delay in this case, meaning that the children's needs will have changed, and they will likely need to purchase new more age-appropriate equipment. Though the intended parents do not envisage any immediate issues in meeting the children's financial needs, this again could impact on their welfare needs in the longer term, and could mean that additional support is required to ensure that they are provided with information and support to access any alternative funding streams, for example, ensuring they are in receipt of appropriate benefit or making charity applications for additional funding."
"There is a need for further assessment of the family and children to allow for a fuller and balanced assessment of their respective needs, and to ensure their longer term welfare can be met".
She continued this would:
"Ordinarily take the form of a Local Authority Child In Need assessment, however such an assessment cannot be triggered without the children being resident in the UK. It is my professional opinion that upon the children's arrival in the UK they will need to be observed in the care of B and A, and that consideration is given to a referral to Children's Services for a holistic Children In Need assessment to ensure that the family has access to any and all relevant supports that may be required to ensure the children's continued welfare."