Strand, London, WC2A 2LL
B e f o r e :
| A and B
| - and -
| X and Y
||1 and 2nd Respondents
| - and -
|C & D (Through their Children's Guardian Mrs Lillian Odze)
||3rd and 4th Respondents
Dr Bianca Jackson (instructed by the Bar Pro Bono for the Applicant B
Ms Penny Logan (of Cafcass Legal) for the 3rd and 4th Respondents
Hearing date: 17th June 2015
Judgment date: 17th July 2015
Crown Copyright ©
Mrs Justice Theis DBE:
(1) Whether the court should permit the application to proceed, bearing in mind the application was made in November 2014, 17 months after the expiry of the six month requirement in s 54 (3):
(2) Whether the applicants satisfy the requirement in s 54 (4) (a) that the child's home must be with the applicants at the time of the application and the making of the order. The applicants were living separately at the time they made the application in November 2014 and at the time the court was considering whether to make the parental order:
(3) Whether one of the applicants satisfies the requirement in s 54 (4) (b) that either, or both, of the applicants must be domiciled in the United Kingdom at the time of the application and the making of the order. Although both applicants were born abroad they are British Citizens. They both assert this jurisdiction is their domicile of choice:
(4) Whether there is sufficient material for the court to be satisfied the consent to the making of the parental order given by the surrogate mother and her husband has been given freely, unconditionally and with full understanding of what is involved as required by s 54 (6): and
(5) Whether the limited information the court has available about the payments that were made, in particular the level of payments to the surrogate mother other than for expenses reasonably incurred, prevent the court from authorising the payments pursuant to s 54 (8).
(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c) the conditions in subsections (2) to (8) are satisfied.
(2) The applicants must be
(a) husband and wife,
(b) civil partners of each other, or
(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
(3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.
(4) At the time of the application and the making of the order
(a) the child's home must be with the applicants, and
(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.
(5) At the time of the making of the order both the applicants must have attained the age of 18.
(6) The court must be satisfied that both
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.
(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of
(a) the making of the order,
(b) any agreement required by subsection (6),
(c) the handing over of the child to the applicants, or
(d) the making of arrangements with a view to the making of the order,
unless authorised by the court.
(9) For the purposes of an application under this section
(a) in relation to England and Wales, section 92(7) to (10) of, and Part 1 of Schedule 11 to, the Children Act 1989 (c. 41) (jurisdiction of courts) apply for the purposes of this section to determine the meaning of "the court" as they apply for the purposes of that Act and proceedings on the application are to be "family proceedings" for the purposes of that Act,
(b) in relation to Scotland , and
(c) in relation to Northern Ireland
(10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.
(11) An application which
(a) relates to a child born before the coming into force of this section, and
(b) is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife,
may be made within the period of six months beginning with the day on which this section comes into force."
'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.'
56. 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
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.
57. 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. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.
58. If for some reason that is wrong, if to go that far is in truth to take a step too far, the same conclusion is, in my judgment, amply justified having regard to the Convention. The two key authorities here are the decision of Theis J in A v P (Surrogacy: Parental Order: Death of Applicant)  EWHC 1738 (Fam),  2 FLR 145, and the later decision of the Supreme Court in Pomiechowski v District Court of Legnica, Poland and another  UKSC 20,  1 WLR 1604. Although, as I have pointed out, Theis J founded her analysis on Article 8, whilst the Supreme Court's analysis was based on Article 6, the reasoning in both cases is fundamentally the same: the statute must be 'read down' in such a way as to ensure that the "essence" of the protected right is not impaired and that what is being protected are rights that are "practical and effective" and not "theoretical and illusory."
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."
62. Having got thus far in the analysis, the remaining question is whether in the present case the commissioning parents are to be allowed to pursue an application made some two years and two months after X was born. In my judgment, they are.
He then went on to consider the facts of that case and made a parental order.
Submissions of the parties
(1) The biological connection with one of the applicants, in this case B, has been established by DNA testing. The surrogate mother has confirmed in the surrogacy agreement that she carried the children. Section 54(1) is thus satisfied.
(2) The applicants' marriage certificate is in the papers. Neither of them have commenced divorce proceedings (although there is some suggestion A may have done with her previous solicitors but no decree has been granted); so s.54(2) is complied with.
(3) Both applicants are over eighteen years of age as verified by their passports in accordance with s.54(5)
(1) The statutory subject matter;
Whilst the HFEA 2008 regulates a number of areas of assisted reproduction s 54 is specifically to enable commissioning parents to become to become the legal parents of children that are already their intentional and psychological (and possibly biological) child.
(2) The background;
As described by the President at paragraph 16 in Re X section 30 of the HFEA 1990 was introduced into the Act at the last minute as a result of the issues raised in Re W (Minors)(Surrogacy)  1 FLR 385. That case concerned a surrogacy arrangement where the local authority issued wardship proceedings insisting that the commissioning parents issue adoption proceedings. Section 30 allowed married couples to obtain parental rights for their child born as a result of a surrogacy arrangement without relying on adoption law providing certain criteria were met. The HFEA 2008 extended the categories of applicants who can make parental order applications, but did not change the other requirements for a parental order to be made.
(3) The purpose of the requirement (if known);
Despite the researches of counsel, as with s 54 (3), there is no specific reference to the underlying purpose of the requirement in s 54 (4) (a).
(4) The importance of the requirement;
The fact of the inclusion of the requirement in s 54 (4) (a) in both section 30 HFEA 1990 and section 54 HFEA 2008 means that it has importance as one of the criteria for the granting of a parental order. Its importance needs to be balanced against the overall purpose of the section to secure the legal status of the children of a de facto family, where it is in their best interests to do so.
(5) Its relation to the general object intended to be secured by the Act;
The general object of section 54 is to extinguish the legal relationship between the surrogate mother (and her civil partner or husband, if relevant) and any child born as a result of the surrogacy arrangement and, simultaneously, to confer legal status on the relationship between the commissioning parents and the child. It is a transformative order. A strict reading of section 54 (4) (a) would undermine the general object intended to be secured by the HFEA 2008, in particular for the existing parental relationship that the children have with the commissioning parents to be recognised in law.
(6) The actual or possible impact of non-compliance on the parties;
If the application is not permitted to proceed the impact on the commissioning parents, the children and the surrogate mother would be significant. The commissioning parents, who have been the de facto, psychological, intentional, and in the case of B the biological, parent would be denied the status of legal parent. The surrogate mother and her husband would remain the legal parents to the children, even though they have stated they do not want to raise the children. The children would remain in a legal vacuum, with the people who provide for all their needs and who intended to be their parents in the fullest sense, not being able to secure that status. No one would suffer any detriment should the parental order be granted. There are clear and obvious benefits to the applicants and the children if the order was made.
(7) Can Parliament have fairly been taken to have intended total invalidity;
It is submitted that Parliament could not have intended that a designation as important as legal parenthood should be denied because the commissioning parents occupied separate physical homes, notwithstanding that the children enjoyed family life with them. Had the parental order application been made within six months of the children's birth the requirement under s 54 (4) (a) would have been met. If the applicants separated shortly after the order is granted it does not vitiate the making of the parental order.
(8) Is any departure from the precise letter of the statute, however minor, fatal?
Departure from the statute using a purposive construction is not fatal to the overall intention. The children are currently in a legal vacuum in terms of their parental relationships. Their de facto parents are not currently recognised as their legal parents, and the surrogate mother and her husband who are their legal parents do not seek to exercise those parental rights. A purposive construction promotes the welfare of the children in ensuring the applicants are recognised as their legal parents.
It is submitted that once the court has undertaken that analysis the final principle that the court should have regard to is the assumption that Parliament intended a sensible result (Re X para 52).
"From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation."
"The general principles of domiciliary law (described in the Dicey text as 'rules') are set down in Dicey Morris and Collins, on the Conflict of Laws 14th edition 2006 ("Dicey"). In the bankruptcy case Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood  EWCA Civ 577, the Court summarised a number of the Dicey principles of law on domicile as un-contentious (paragraph  per Arden LJ). Relevant to the domicile of choice issues raised in this case the un-contentious principles include:
(1) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it.
(2) No person can be without a domicile.
(3) No person can at the same time for the same purpose have more than one domicile.
(4) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
(5) Every person receives at birth a domicile of origin.
(6) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.
(7) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice.
(8) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious.
(9) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise. A person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.
(10) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but if it is not acquired, the domicile of origin revives"
"The burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change. The standard of proof is the balance of probability (see Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood  EWCA Civ 577 per Arden LJ at paragraphs 85-88)"
Discussion and Decision