B-G (A Child)

A parental order may be made where the statutory conditions are satisfied and the order clearly serves the child’s welfare. Domicile is distinct from residence and habitual residence. A person who moves abroad for an indefinite period does not necessarily lose a domicile of origin where there is a genuine intention to return permanently. The court may proceed without complete foreign safeguarding checks where there is no reason to anticipate concerns and the missing material is unlikely to affect the outcome. Procedural requirements remain important, and the court must address the statutory conditions rather than take shortcuts.

The applicants were a married couple, one British and one South African, who sought a parental order concerning a child born in England after the English father’s sister acted as carrying mother. The family lived in South Africa. The application was made under section 54 of the Human Fertilisation and Embryology Act 2008.

The principal issue was whether the English father remained domiciled in the United Kingdom for the purposes of section 54(4)(b), despite living and being resident in South Africa. A further procedural issue concerned the absence of safeguarding checks from the South African authorities.

1. Parental order made. The order was plainly in the child’s interests. The court was satisfied that the statutory requirements were met and that the child should become a full legal member of the fathers’ family.
2. The court considered each of the eleven subsections of section 54 of the Human Fertilisation and Embryology Act 2008. They presented no obstacle, or were inapplicable, save for the domicile issue.
3. Under section 54(4)(a), the child’s home had to be with the applicants. That requirement was satisfied even though the home was in South Africa. Section 54(4)(b) required one or both applicants to be domiciled in the United Kingdom.
4. Domicile was distinct from residence and habitual residence. Although the English father had lived in South Africa since 2007, the court found that he had retained his domicile of origin in England because there was a genuine and agreed intention to return to the United Kingdom within the foreseeable future, particularly by the child’s school age. The reasoning was supported by Z & Anor v C & Anor [2011] EWHC 3181 (Fam).
5. The absence of safeguarding checks from South Africa did not require an adjournment. Such checks would have been required if there were reason to anticipate concerns, but the evidence disclosed no such concern and the missing checks were unlikely to affect the conclusion.
6. The applicants were ordered to obtain the transcript at their expense and copies were to be sent to CAFCASS, the local authority and the applicants.

First-instance application; no earlier appellate history is stated in the judgment.