Z & Anor v C & Anor

For a parental order under Human Fertilisation and Embryology Act 2008, domicile is a mandatory jurisdictional requirement. An applicant may acquire an English domicile of choice through residence combined with a genuine intention to make England a permanent or indefinite home. The intention need not be irrevocable. The court must assess all relevant evidence, including the reasons for relocation, preparations for departure, conduct after arrival, family and social connections, immigration status and apparently minor acts. The assertion of domicile may confer an immigration advantage without being improper, provided it is genuine and not contrived or a misuse of proceedings. The burden is on the person asserting the change, proved on the balance of probabilities.

The applicants, a same-sex couple, applied for parental orders concerning twins born in India through an international surrogacy arrangement. The preliminary issue was whether applicant Z was domiciled in England and Wales when the application was made. Under section 54(4)(b) of the Human Fertilisation and Embryology Act 2008, that question determined whether the court had jurisdiction. The evidence concerned the applicants’ relocation from Israel, their continuing connections there, their conduct in England, and the reasons they had not entered into a civil partnership or brought the children directly to England.

1. Jurisdiction. Section 54(4)(b) of the Human Fertilisation and Embryology Act 2008 made United Kingdom, Channel Islands or Isle of Man domicile at the relevant times a mandatory condition giving the court jurisdiction to make a parental order.
2. Applicable principles. Domicile of choice requires residence together with an intention to reside permanently or indefinitely. The intention need not be irrevocable. The court must evaluate the whole factual picture, and the burden of proving abandonment of the domicile of origin and acquisition of a domicile of choice lies on the asserting party, on the balance of probabilities.
3. Good faith. A genuine assertion of English domicile is not invalid merely because it may produce an immigration or other advantage. The relevant question is whether the assertion is false, contrived or a misuse of proceedings.
4. Application. Z’s planned permanent move, departure from employment and tax arrangements in Israel, preparations for relocation, establishment of a home and business in England, integration, family connections, visa declaration and conduct concerning the children established both residence and a fixed intention to remain indefinitely. The Israeli parenting agreement, the failure to enter a civil partnership and the journey from India to Israel were not inconsistent with that intention.
5. Order. Z abandoned his domicile of origin and acquired an English domicile of choice in January 2008. He was domiciled in England when the parental-order application was issued, and the court had jurisdiction.