W (Children), Re

Permission to appeal should be refused where a Family Division judge has exercised a difficult discretion on unprecedented facts without evident error of law or sufficient prospects of success. The Court of Appeal should not substitute its own view merely because it might assess related authorities differently. In determining an application concerning children, the judge may consider the whole history, the children’s likely future, and the legitimate prior involvement of a foreign family justice system. English statutory parental status does not require the court to ignore those matters. A fact-sensitive conclusion that children lack habitual residence in a foreign jurisdiction is not readily open to appellate challenge where it was available on the evidence.

A woman agreed in California to act as a surrogate for a married couple. Embryos created from an anonymous donor’s egg and the intended father’s sperm were implanted, but the surrogate gave birth in England to identical twins after relations between the adults deteriorated. A Californian court made an order purporting to confer custody on the intended parents and exclude the surrogate from a parental relationship.

The intended parents commenced proceedings in England under the Child Abduction and Custody Act 1985 and the Hague Convention. Hedley J concluded that the twins had no habitual residence in California and refused relief under the Convention. On a subsequent application under the inherent jurisdiction, he ordered their return to California, subject to protective undertakings. The surrogate applied to the Court of Appeal for permission to challenge both decisions, alleging errors concerning habitual residence, welfare, statutory status and the relevance of the Californian proceedings.

The applications for permission to appeal were dismissed. Lord Justice Thorpe gave the judgment, with which Lord Justice Latham agreed.

1. Permission concerning the order of 18 February was refused. The application was substantially out of time, and the judge’s conclusion that the twins had no habitual residence in California was a fact-based conclusion to which he was entitled to come. The twins had lived exclusively in England and Wales.
2. The order of 10 April involved an unprecedented application under the inherent jurisdiction. Although the authorities considered by Hedley J arose from Convention cases or applications concerning abducted children and were not directly analogous, he was entitled to obtain guidance from related fields of authority.
3. The judge was not required to determine the matter by applying only the English statutory position or by ignoring the origins of the relationship, the history of the adults’ dealings, or California’s legitimate and materially different legal approach to surrogacy. He was entitled to take account of the prior Californian proceedings and the sophistication of that family justice system.
4. The decision was a discretionary decision for the trial judge. Relevant considerations included good sense, careful reflection, foresight as to the likely outcome for the children, and due regard to the friendly foreign legal system that had previously entertained proceedings between the parties. The Court of Appeal might have expressed different views about the related precedents, but that did not establish an evident error of law or justify appellate intervention.

The order for return under the inherent jurisdiction and the associated protective undertakings were left undisturbed. The applicant’s costs were directed to detailed assessment.

1. Family Division: Hedley J made orders on 18 February and 10 April 2002. He refused relief under the Convention because the twins had no habitual residence in California, but granted the subsequent inherent-jurisdiction application for their return to California, subject to undertakings.
2. Court of Appeal (Civil Division): Permission to appeal both orders was refused and the applications were dismissed.