A & B (No 2 -Parental Order)

The statutory conditions for a parental order may be construed purposively where a strict reading would defeat the statutory purpose of securing the legal status of a child born through surrogacy. In an appropriate case, the six-month period in section 54(3) of the Human Fertilisation and Embryology Act 2008 may be read down. The requirement that the child’s home be with the applicants may also be satisfied where separated applicants remain the child’s family and the child has no home with another person. Article 8 may reinforce that interpretation, protecting family life, private life and identity. The court may authorise non-expense payments despite incomplete information where the applicants acted in good faith and the available evidence supports the payments.

A and B applied for parental orders concerning twins born in India through a surrogacy arrangement. The children had been cared for by the applicants since birth, but the surrogate mother and her husband remained their legal parents. The application was issued more than six months after the births. A and B had separated and lived in different homes, although both remained involved in the children’s lives. The court also had limited information about payments made through the clinic and had to determine whether the surrogate parents’ consents were valid and whether service requirements had been met.

The central issues were whether the statutory conditions in section 54 of the Human Fertilisation and Embryology Act 2008 could be construed purposively in relation to delay and separate households, and whether the remaining statutory conditions were satisfied.

1. Parental orders made. The court permitted the applications to proceed notwithstanding that they were issued more than six months after the children’s birth. Following Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam), section 54(3) could be construed purposively and, if necessary, read down to give effect to the Convention rights engaged. The applicants had acted in good faith and had applied promptly after learning of the need for a parental order.
2. The children’s home could properly be regarded as being with both applicants notwithstanding their separation. They remained married, both remained committed to the children, and the children had no home with anyone else. A strict interpretation of section 54(4)(a) would undermine the statutory purpose of transforming the de facto family relationship into a legal parent-child relationship. Article 8 was engaged, including its protection of family life, private life and identity.
3. Both applicants were domiciled in the United Kingdom. Their long residence, British citizenship, family connections and absence of any intention to live elsewhere established a domicile of choice.
4. The surrogate mother and her husband had consented freely, unconditionally and with full understanding of the consequences. Their translated and notarised documents were sufficient despite not being in the prescribed form. The court was satisfied that consent was not conditional on payment.
5. The court authorised payments beyond expenses reasonably incurred under section 54(8). Although the evidence about the precise distribution of payments was limited, the total sums were not disproportionate, the applicants had acted in good faith, and the surrounding evidence supported the conclusion that the arrangement had been entered into freely.
6. Service had been effected more than 14 days before the hearing. The requirement for acknowledgment of service was dispensed with because the surrogate parents had signed effective consents and suffered no prejudice. The children’s lifelong welfare supported making the bespoke parental orders, which better met their needs than child arrangements, special guardianship or adoption orders.

First-instance decision. The judgment records earlier directions hearings and a fact-finding judgment in the same proceedings, reported at [2015] EWHC 1059 (Fam).