A & B (Parental Order Domicile), Re

For a parental order, domicile is a mandatory jurisdictional gateway. Applicants must prove abandonment of their domicile of origin and acquisition of a domicile of choice, including residence in the United Kingdom as their permanent home and an intention to remain indefinitely.

Payments exceeding reasonable expenses in an overseas surrogacy may be authorised after considering good faith, legality, public policy, possible evasion of safeguards, child-buying and undue pressure on the surrogate. The child’s welfare remains paramount.

A and B, a same-sex couple living in England, applied under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order concerning C, born in India through gestational surrogacy. One applicant was the biological father. The surrogate mother consented.

The central issue was whether one or both applicants were domiciled in the United Kingdom under section 54(4)(b). The court also considered the remaining statutory conditions, an overseas payment exceeding reasonable expenses, and C’s welfare.

1. The application succeeded and a parental order was made.

2. Applying Z v C [2011] EWHC 3181 (Fam), the applicants proved abandonment of their domiciles of origin and acquisition of domiciles of choice. Their permanent relocation, severance of former ties, integration in England and intention to remain indefinitely established domicile on the balance of probabilities.

3. The applicants satisfied the requirements concerning their relationship, timing of the application, C’s home, age and consent. The respondent’s consent was free, informed, unconditional and given more than six weeks after birth.

4. The payment to the surrogate exceeded reasonable expenses but was authorised under section 54(8). The court considered good faith and absence of fraud, as discussed in Re X and Y [2009] 1 FLR 733, and public-policy concerns identified in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam). The evidence showed a proper arrangement, no undue pressure and no abuse of public policy.

5. Under section 1(4) of the Adoption and Children Act 2002, C’s welfare was paramount. His need for lifelong security and stability required the parental order.

First-instance decision. No earlier judgment or appeal is stated.