Z (Parental Order: Child's Home)

A parental order under Human Fertilisation and Embryology Act 2008, s 54, has profound legal and personal consequences, and the child’s welfare is paramount. The statutory requirement that the child’s home be with the applicants receives a wide and purposive interpretation. Separate homes, temporary separation, immigration difficulties and intervening care arrangements are not necessarily fatal. The question is fact-sensitive and requires assessment of the applicants’ care, intentions and relationship with the child. An enduring family relationship is likewise a question of fact and degree and is not confined to the position at the date of the application or order. Where the statutory criteria are met and the order serves the child’s welfare, the court may authorise retrospectively payments made under the surrogacy arrangement.

AB and CD, a same-sex couple in a long-term relationship, applied under s 54 of the Human Fertilisation and Embryology Act 2008 for a parental order concerning Z, born in Colombia through a surrogacy arrangement using AB’s gametes and donor eggs. Exceptional pandemic-related travel restrictions led to Z being cared for separately by CD and later placed in foster care before returning to the applicants. Care proceedings were withdrawn after assessments found no significant safeguarding risk. The issues included whether the applicants were living as partners in an enduring family relationship, whether Z’s home was with them at the relevant times, domicile, retrospective approval of payments, and Z’s welfare.

The parental order was made in favour of AB and CD.

1. Statutory criteria. The court was satisfied that the requirements in s 54 of the Human Fertilisation and Embryology Act 2008 were met, including the two-applicant requirement, the child’s birth following embryo transfer, use of AB’s gametes, the time limit, age, EF’s free and informed consent, and the financial requirements. The payments to the surrogate were authorised retrospectively under s 54(8).
2. Enduring family relationship. Whether applicants are living as partners in an enduring family relationship is a question of fact and degree. The provision is not time-specific. The court must not read into it a requirement that the applicants be living together, or remain together, at the date of the application or order. The applicants’ long relationship, cohabitation, shared intention to become parents, commitment to Z and resilience supported the conclusion that the requirement was satisfied.
3. Child’s home. The expression “the child’s home” in s 54(4)(a) requires a wide and purposive construction. Separate residences or a period during which the child is in foster care do not necessarily prevent the requirement being met. The court should consider when the child last had a home with the applicants, the reasons for any separation, the care provided by each applicant, and whether the child could still properly be regarded as having a home with them. Z had been cared for by both applicants in Colombia, AB retained parental responsibility during the relevant period, and the separation resulted from circumstances outside their control.
4. Domicile and welfare. Both applicants retained their domicile of origin in the United Kingdom. Their foreign residence was dependent on employment and was neither permanent nor indefinite. The court also treated Z’s welfare as paramount under s 1 of the Adoption and Children Act 2002. The evidence showed that making the parental order met her welfare needs.