England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/04/2016

Mrs Justice Pauffley:

Introduction

1. I start by paying tribute to Ms Fottrell QC, Ms Kathyrn Cronin and Ms Dally of Goodman Ray, Solicitors, all of whom represent the Applicants pro bono. All three are experts in their field. Ms Fottrell and Ms Dally are specialists, amongst other things, in the law relating to surrogacy and applications under the Human Fertilisation and Embryology Act (HFEA) 2008. Ms Cronin's expertise lies in immigration law. It is a measure of their personal generosity as well as their dedication to serving the public in the finest traditions of their respective professions that they have been prepared to act without recompense in these proceedings.
2. As the result of the quite excellent Skeleton Arguments prepared by Ms Fottrell and Ms Cronin, my task has been made considerably more straightforward. I should also record my own and the Applicant's gratitude to the Treasury Solicitor. His 21 March 2016 Position Statement on behalf of the Secretary of State for the Home Department makes clear there will be reconsideration of an earlier immigration decision refusing entry clearance to the child, J. An explicit assurance is given that the findings made at the conclusion of this hearing will be taken into account by the Secretary of State when she reconsiders the decision of the Entry Clearance officer of December 2015.

Outline and issues

3. The application relates to J, a boy. He will be two years old later on this summer. Currently, for reasons beyond the control of his intended parents, he is staying with his paternal grandmother in India.
4. The applicants are BK and his wife RJ. Their application for a parental order is dated 9 September 2015. BK is J's genetic father, a fact substantiated by a DNA test result of 30 July 2015.
5. The first respondent, RT, acted as gestational surrogate. She has given her written consent to the making of a parental order.
6. J's guardian is Nirmala Dutta. She was present throughout the hearing and confirms, in accordance with her second report, that she supports the making of a parental order.
7. The proceedings are listed to determine the following issues;

i. Whether the criteria under s.54 of the Human Fertilisation and Embryology Act 2008 are satisfied; and

ii. Whether the Court can or should make a parental order when the child is outside the jurisdiction of England and Wales and the parental order reporter has not seen J in a family setting in the UK.

As to the second issue, an undoubted difficulty arises in making progress towards achieving a final decision upon the application because the applicants have been unable to obtain a visa or British passport to permit J to enter the UK.

8. On 8 March 2016, there was a brief hearing at which the Secretary of State was represented. I gave consideration to Ms Cronin's suggestions as to ways in which the immigration impasse might be resolved. I acceded to her proposal that this hearing should be used to resolve a number of issues – the intended parents' domicile, the status of their 'out of time' application, whether or not J can be said to have his 'home' with them, whether the surrogate mother's estranged husband is to be treated as J's father for the purposes of s.35 of the 2008 Act and whether the court in its discretion should retrospectively authorize the payments made to the surrogate in so far as they did not constitute reasonable expenses.
9. I agreed with Ms Cronin that it might be extremely useful if and when the Secretary of State reconsiders the application for entry clearance for there to be findings as to whether the commissioning couple are able to meet the requirements necessary to obtain a Parental Order. I also made clear that I did not intend to trespass in any way upon the prospective adjudication under the immigration rules. Neither Ms Fottrell nor Ms Cronin suggested I should do otherwise.
10. Although there are extremely powerful reasons for believing that J's welfare interests will be served throughout his life by the making of a Parental Order, it seems to me that I should permit the reconsideration proposed by the Secretary of State.
11. I am though anxious about the potential for unconscionable delay. To that end, I will direct that the application must be restored for further hearing by no later than 1 June 2016. In the event that the immigration impasse persists, I will consider whether in the circumstances I should proceed to make a Parental Order. The effect of so doing would be to circumvent the entry clearance difficulties at one stroke.
12. Ms Dutta has had the opportunity to see J interacting with his parents during a Skype call. It is her view that the risk of harm to J associated with further delay means there are compelling welfare reasons to recommend the making of a Parental Order without her having had an opportunity to see the applicants with J. I cannot ignore Ms Dutta's assessment which is that the applicants made a 'heart-wrenching decision' to leave J in India whilst they returned to their employment in this country so as to satisfy immigration criteria.

Essential background

13. RJ was born in India but relocated to the UK in May 2006 and is a naturalized British Citizen. BK has lived in the UK since April 2009. He has indefinite leave to remain and it is his intention, in due course, to apply for British Citizenship. The applicants were married in India in May 2009. Both are settled in the UK and, as I shall go on to find, have acquired an English domicile of choice.
14. The intended mother has a congenital condition which makes it impossible for her to carry a child. The applicants yearned for a child and believing that they would be "good role model parents" the applicants decided to explore the options of both adoption and surrogacy. After undertaking some research they settled on surrogacy because they were keen, if possible, to have a child who was genetically related to them. There were also cultural considerations which suggested surrogacy should be their favoured option.
15. The applicants consulted and received treatment at a clinic in Kochi, India which is affiliated to a highly reputable clinic in the UK.
16. As the result of the clinic's intervention, the applicants met the surrogate mother RT. It was agreed that she would act as gestational surrogate for them. The written agreement provides that genetic material from the male applicant would be used together with donated eggs to create an embryo. All of the arrangements were made by the clinic in India. The agreement was signed in October 2014.
17. Throughout the pregnancy, twice each week, the applicants had contact with the surrogate mother. RJ was in India at the time of and attended at J's birth. He was discharged from hospital after 7 days. RJ looked after him continuously for the first 8 months of his life within the home of the paternal grandmother. KB had arrived in India in early July 2014 and was able to arrange to stay for two months. He returned to this country in September 2014 to resume his employment commitments so as to support the family.
18. At the time they entered into their agreement with the surrogate, the applicants did not know she was married. Nor did they have any appreciation of the legal implications of that fact.
19. Having read their evidence and heard the oral evidence of RJ, I am entirely satisfied that, at the relevant time, neither she nor her husband were aware of the potential of applying for a parental order. RJ said this, "We didn't know about how to bring baby to the UK because baby born through surrogacy … When we wrote down in second application (for J to enter this country as a visitor) that baby was born through a surrogacy arrangement, it was a shock that we were not parents under English law. That made us very frightened."
20. In the period before J's birth, all of the applicants' energy and concentration had been upon medical procedures and fertility treatment. After his arrival, their focus shifted to obtaining immigration clearance so as to permit J to live with them at their home in the UK. They had assumed, wrongly as it turned out, that because KB is J's genetic father he would be allowed to enter the UK and live here with them.

Current circumstances – immigration difficulties

21. J's current circumstances (which are causing his intended parents as well as the wider family considerable distress) are that he is in India living in the home of the paternal grandmother. The applicants made two applications for Child Visitors Visas – in October and November 2014 – which were both refused. They then applied for a British Passport for J. That application was refused in January 2015 because J does not have a claim to British Citizenship based upon the criteria set out within the legislation. The applicants accept, having received advice from immigration Solicitors that the decisions made by the Entry Clearance Officers upon those three unsuccessful applications were correct.
22. More recently, an application has been made (and refused) for a Child Settlement Visa under paragraph 297 of the Immigration Rules. The decision maker concluded, on the basis of the material then available, that there was insufficient evidence that the applicants were J's parents. It was acknowledged that BJ was J's biological father and that he has indefinite leave to remain in the UK but that, for the purposes of rule 297, the child's father was the husband of the surrogate. On that basis the requirements of Rule 297 were not met.
23. The applicants have lodged an appeal against the latter decision. However, the Secretary of State has proposed that she will reconsider and take into account any relevant findings made by me at the conclusion of this hearing. In order for that re-consideration to take place, it will be necessary for the applicants' appeal to be withdrawn. Upon receipt of confirmation that it has been, the Secretary of State has said she will use her best endeavours to reconsider "without undue delay." The Treasury Solicitor has indicated that because the Decision Maker is in Chennai and because there is uncertainty as to what additional information will be required, it is not possible to provide a timeframe.
24. The applicants have demonstrated that they were wholly unaware of the immigration and nationality policies as they apply to children born as the result of surrogacy. J was issued with an Indian passport and therefore has a travel document enabling him to travel to the UK. He requires a visa to travel to and to enter the UK and has not been issued with such document. It is accepted that J is not a British citizen by descent and therefore he does not qualify for a British passport.
25. It is right to record that in 2009 The Home Office issued an information leaflet entitled Intercountry Surrogacy and the Immigration Rules. The document sets out the policies and rules applied by the Home Office to surrogate – born children. For those who are not British citizens and cannot qualify for entry under the Immigration Rules, there is a concessionary arrangement. Such children may be granted entry clearance / leave to enter the UK for 12 months if the commissioning couple can demonstrate that they are capable of meeting the requirements necessary to obtain a Parental Order under Section 54 of the HFEA and satisfy 'as many of the Rules' requirements as they can'. The applicants have provided evidence of their compliance with Rules criteria, notably:

• Evidence to demonstrate that they have a settled status in the United Kingdom;

• Documentation showing the applicants' accommodation and earnings; J's baptismal and birth certificates; accredited DNA test results;

• Medical evidence substantiating the paternal grandmother's disabilities – marked impairments of her abilities to care for an active toddler.

Section 54 of the HFEA – the criteria

The child has been carried by a surrogate and the sperm or egg of one of the applicants was used to bring about the creation of the embryo

26. The child is the genetic child of the applicant BK. J was conceived as the result of assisted reproduction treatment. Written evidence from the clinic in India as well as DNA testing confirms that s.54 (1) (b) is satisfied.

The commissioning couple must be married, civil partners or in an enduring family relationship

27. The applicants are married to each other as required under s.54 (2). Their marriage certificate showing the date of the ceremony in June 2009 was attached to their initial application.

The parental order application must be made within six months of the child's birth

28. The applicants did not make their application within the statutory timeframe. In September 2015, when they launched their application, J was 2 years and 2 months old. They were simply unaware of the need for the order or indeed that such an order could be sought.
29. The approach to be taken in such circumstances was considered by the President in Re X (Surrogacy; Time Limit) [2014] EWHC 3135 (Fam); [2015] 2 WLR 745; [2015]1 FLR 349. In that case, neither commissioning parent had been aware of the need to apply for a parental order. The child was two years old when the application was launched.
30. The first issue considered by the President was the rationale for the imposition of a 6 month time limit. None could be identified by the parties; and it appeared that Parliament had been silent as to the reasons behind the policy.
31. The President considered whether the court had power or authority to extend the 6 month time limit. He noted the following arising out of the decision of Theis J in A v P [2011] EWHC 1738 (Fam); [2012] 3 WLR 369; [2012] 2 FLR 145. –

i. Parental orders are intended to have a transformative effect upon the legal relationship between the child and the parent;

ii. The child is biologically related to the commissioning father but may not be able to establish a legal relationship with him;

iii. The child is entitled to the social and legal benefits which flow from recognition of the parental relationship;

iv. The child should have a legal reality which matches the factual reality;

v. That the United Nations Convention on the Rights of the Child imposed obligations in respect of the right to identity and it may require a purposive reading of s.54 to preserve that right.

32. The President also considered whether he could read the statute in a way which would permit relaxation of the 6 month time limit or whether the imperative wording of s.54 prevented him from so doing. He noted as follows –

i. That the focus of the court's analysis should be upon the consequence of non-compliance as opposed to the imperative wording of the provision;

ii. If there is a breach of a statutory procedural requirement the modern approach is to look at the underlying purpose of the requirement, whether departure from it contravenes the letter of the statute and, if so, whether it renders it a nullity.

33. The President considered whether there was a human rights obligation to read s.54 in a way which gave proper and full protection to the parents' right to family life and the child's right to identity. Returning to the case of A v P –

i. He imported and accepted the powerful analysis of Theis J in the case of A v P;

ii. He considered that s.54 went to one of the most fundamental aspects of status and to the identity of the child as a human being;

iii. He said the consequences of making or of not making an order would be lifelong and irreversible;

iv. He did not consider that Parliament could have intended to impose such hardship on parents and children so as to prevent them forever from making such an application;

v. That he could read down under s.3 of the Human Rights Act an interpretation which permitted him to make the order;

vi. That he did not consider the two years and two months to be a prohibitively long time.

34. On the basis of statutory construction the President concluded that 'must apply' in s.54 (3) meant that the order could be made where the application fell outside that time limit. Further, or in the alternative, that if necessary s.3 HRA 1998 permitted the court to read s.54(3) in a way which did not prevent the making of the order when the application fell outside the 6 month time limit.
35. Similarly, in Re A and B (No.2 Parental Order) [2015] EWHC 2080 (Fam) Theis J considered applications in respect of twin girls where the application was made some 17 months outside of the 6 month time limit. At paragraph 64, she noted that Re X 'made it clear that a purposive construction can be given to the time requirement in s.54(3) and, that in any event, it is possible to 'read down' the provision to give effect to the Convention rights engaged, in particular Article 8."
36. Theis J considered the following to be relevant in that case;

i. That the couple had acted in good faith;

ii. That the enquiries undertaken by the couple did not disclose the need for a parental order;

iii. The applicants had thought they had done all that was necessary as their names were on the birth certificates;

iv. That they had been open with all professionals;

v. The female applicant sought specialist advice as soon as they became aware of the parental order requirement.

37. In the instant case, it is clear from the evidence that the applicants did plan and investigate their plans for surrogacy. They considered how to become parents and they chose surrogacy over adoption. Furthermore, they approached a clinic in India with ties to a reputable clinic in the UK. They acted in good faith and with a genuine intention to be legal, factual and insofar as was possible the genetic parents of their son.
38. I am altogether satisfied that the facts to which I've referred would support the making of the order notwithstanding that the application was made outside the 6 month 'rule.' As the President observed in Re X, "No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks." Those comments apply with considerable force to the situation as it applies to J and these applicants.

The child's home should be with the commissioning couple, one of whom or both must be domiciled in the UK, Channel Islands or Isle of Man

39. Section 54(4)(a) of the 2008 Act provides that at the time of the application and of the making of the order the child's home must be with the applicants.
40. In the circumstances which prevail currently, the Applicants have established two homes, one in the UK and one in India. Within their written evidence, they confirm that they fund and support the grandmother. RJ was able to show me many photographs and film clips featuring J, how he is progressing and developing. The intended parents are also J's de facto parents; they make all of the decisions about his day to day welfare and care. They make Skype calls to him for about 2 hours every day. The paternal grandmother has been helped repeatedly to understand how to operate the technology necessary to ensure a successful connection. Although at times the applicants have had no realistic option other than to delegate some of the practical tasks required by J, they have had full responsibility for providing that care. Their separation from J causes them immense distress and anxiety.
41. In Re Z (Foreign Surrogacy) [2015] EWFC 90 the circumstances were broadly similar to those here. The children were stranded abroad with extended family and/or one of the partners. Russell J was satisfied that the children's home was with the applicants. In this instance, it seems to me that the concept of home must and should be construed flexibly.
42. The applicants have lived in the UK for several years – RJ has been in England for 7 and BK for 5 years. This is their home. They each have full time employment in caring professions. They have purchased a family home here and it is where they intend to remain. England is, in every sense, the applicants' domicile of choice.

At the time of the making of the order the applicants must have attained the age of 18

43. The applicants fulfil the age requirement without difficulty. BK is over 40; his wife, RJ is in her mid-thirties.

The surrogate (and her husband or civil partner) must freely and unconditionally consent to the making of the parental order

44. The surrogate mother, RT, has given her written consent to the order and has confirmed that fact to the guardian. In the order of 8 March 2016 it is recorded that, having reviewed this evidence, the court was satisfied that the surrogate's consent had been freely and unconditionally given in accordance with the provisions of s.54 (6) and (7).
45. The surrogate is married but has been abandoned by her husband for some years. In a notarized document attached to the surrogacy agreement dated 8 July 2014, which was after J's birth, RT states –

"I can confirm that at the time of Master J's birth I was legally married to my husband Mr DSN. I was legally married but separated from my husband at the time Master J was conceived as a result of the implantation of an embryo at (the) … clinic… My husband has never given any specific consent to the treatment as we were separated at the time.

I declare that my husband abandoned me and my family in May 2009. I have no contact with my husband and I do not know his whereabouts"

46. It is necessary to consider whether the surrogate's husband is to be treated as the father of J under s.35 of the HFEA. The evidence is that he neither knew of nor gave his consent to the treatment.
47. In Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam); [2008] 1 FLR 1047 McFarlane J (as he then was) considered an application for a parental order in circumstances where the surrogate mother's estranged husband had not given his consent. He concluded that because the estranged husband did not consent to the treatment, therefore he should not be treated as the father for a number of reasons –

i. He had not engaged in the treatment process in any way;

ii. He refused to participate in or engage with the Court process;

iii. He had known in general terms about the treatment and plan for his wife to act as a surrogate and had no objection to her doing so.

48. At paragraph 37 of his judgment, McFarlane J determined that he should make a declaration that the estranged husband was not the father and did not consent to the treatment.
49. In AB v CD (Surrogacy; Time Limit and Consent) [2015] EWFC 12; [2016] 1 FLR 41 Theis J considered the application of s.35 (1) of the 2008 Act, the provision headed 'Meaning of "father."' The effect of the section is that a husband will be treated as the father of a child born to married woman following IVF treatment unless it is shown that he did not consent. At paragraphs 46 and 47 of her judgment, Theis J set out a number of factors which supported the view that it could be shown that the husband did not consent, including –

i. There was no record of his having been involved in the treatment in any way;

ii. He did not attend any appointments and there was no record of his signing any documents;

iii. The woman was referred to as the 'daughter of' in all clinic documents which suggested that the clinic understood her not to be married.

50. The decisions taken in Re G and in AB v CD are highly relevant to the circumstances in this case. In October 2013, when treatment was given, the surrogate mother's husband played no part in the arrangements made with the clinic or the agreements into which she entered with the applicants. There is no basis for believing that he was involved in any way, having abandoned the surrogate mother some four years previously. He could not consent (because he had no awareness of his estranged wife's plans) to being the legal parent of any child born to her.
51. Accordingly, I am altogether satisfied that the surrogate's estranged husband did not give his consent and that, therefore, he is not the father of J pursuant to s.35(1) of the 2008 Act.

The court must be satisfied that no money or other benefit, other than reasonable expenses, has been received by the surrogate

52. Section 54 (8) provides:

"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."

53. The applicants have provided a schedule showing the payments made to the clinic and emails from the clinic confirming the total sum paid – namely £15,245.40. The surrogate compensation fee of £3,442.22 as well as the sums paid to the clinic are in line with those authorised in Re D and L (Minors Surrogacy) [2012] EWHC 2631 (Fam); [2013] 1 WLR 3135.
54. In Re X (supra) the President cited with approval the five relevant principles as set out by Theis J in Re WT (A Child) [2014] EWHC 1303 (Fam). Whilst all are important, it seems to me that the concluding fifth paragraph encapsulates the overarching doctrine. "Where the applicants for a parental order are acting in good faith and without 'moral taint' in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorization, having regard to the paramountcy of the child's lifelong welfare."
55. I am in no doubt as to the appropriate course in this case. The applicants acted with the utmost good faith. There was no 'moral taint' in their dealings with the surrogate mother and would be no affront to public policy if I were, in the exercise of my discretion, to retrospectively authorize the payments made. J's welfare positively demands that I should do so.

The way forward

56. There is significant evidence to show that J's welfare interests would be best served by the making of a parental order to the applicants. Events of the past year have caused him considerable stress, disruption and emotional harm. RJ told me that whenever they speak over Skype, J will ask her, "When are you coming?" and he is always showing visitors photographs of his parents. When J is asked the question, "When are they coming?" he replies, "On Sunday."
57. Understandably enough, the applicants are entirely focused on securing their reunification with J and then upon providing him with the security and continuity which will help to erase the difficulties associated with their enforced separation.
58. I will anxiously await notification that the Secretary of State has reconsidered the application for J to join his intended parents under paragraph 297 of the Immigration Rules and / or under the terms of the Secretary of State's own policy allowing the entry to the UK of surrogate born children subject to parental order applications.
59. That is my judgment

Epilogue (added on 1 August 2016)

60. The proceedings were listed for final hearing on 1 August 2016. The Applicants were represented by Ms Cronin and Ms Dally of Goodman Ray, Solicitors as before pro bono.
61. Mr Rogerson of Dawson Cornwell, Solicitors represented the Children's Guardian.
62. On 10 June 2016, J was granted entry clearance permitting him to enter and remain in the UK for 12 months. Pursuant to Home Office policy the 12 month term allows for completion of a parental order application. On the making of a parental order, J would cease to be subject to immigration control because he will acquire British citizenship.
63. The Applicants flew out to India and were reunited with J. They travelled to this country, as a family, on 29 June.
64. The reunion as between J and the Applicants has brought each of them immeasurable joy. Ms Dutta who visited the family home on 26 July reports that J is "an incredibly delightful child" whose parents clearly adore him. Their interaction and responses were warm and affectionate at all times (as, I observe, they were in court during the brief final hearing).
65. J is appropriately shy of strangers but strongly attached to his parents. He is meeting his developmental milestones, is active, plays independently and is very fluent in his native language. He is beginning to learn some English.
66. Ms Dutta's professional assessment is that J has adapted and settled in well. His parents are clearly relieved, take much pride in their son and enjoy doting upon him.
67. In the circumstances, I had great pleasure in making a parental order in favour of the Applicants. Not only is such an order overwhelmingly in J's lifelong welfare interests, it will also create a life-long, permanent parent-child relationship. J, as the result of s.54(1) of the Human Fertilisation and Embryology Act 2008 and Schedule 1 to the 2010 Human Fertilisation and Embryology (Parental Orders) Regulations, will henceforth be treated in law as if he had been legitimately born to the persons who obtained the order, namely the Applicants.