YW & Anor v A & Anor

In an application for a parental order, the statutory conditions must be interpreted purposively and in light of the child’s welfare. A child may have her home with intended parents even where one applicant has been imprisoned, provided the factual circumstances establish continuing family life and care. Surrogate consent must be free, unconditional and given with full understanding. Financial arrangements require careful scrutiny, but lawful and transparent payments do not necessarily offend public policy. Welfare is paramount and extends throughout the child’s life. A parental order should be withheld on public-policy grounds only in the clearest case of abuse of public policy where welfare otherwise supports the order.

The applicants sought a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of P, born in Georgia through a gestational surrogacy arrangement. The first applicant was P’s biological father and the applicants were married. The surrogate had been notified but did not attend or participate.

The application was issued within six months of P’s birth. During the proceedings, the second applicant was convicted of fraud and imprisoned. The court therefore examined whether the statutory conditions, the surrogate’s consent, the payments made, public-policy concerns and P’s lifelong welfare permitted the order.

1. Statutory criteria. The requirements in section 54 were satisfied. P was conceived by IVF using the second applicant’s sperm; the applicants were over 18 and married; the application was made within six months; and the domicile requirement was met.
2. Child’s home. Section 54(4)(a) required a purposive, fact-specific interpretation of “home”, informed by article 8 of the ECHR. The period of the second applicant’s imprisonment did not prevent P having her home with both applicants. Relevant circumstances included the care provided after birth, regular telephone, video and prison contact, and the second applicant’s return to the family home as a primary carer.
3. Consent. The surrogate’s consent under section 54(6) was freely and unconditionally given, with full understanding of the relevant circumstances. Her consent remained valid under section 54(7), had not been withdrawn, and she had been informed of the second applicant’s conviction.
4. Payments and public policy. The payments to the surrogate and agency were transparent, lawful in Georgia and consistent with the arrangement. They were not so excessive as to compromise the surrogate’s agency. The payments to the surrogate were retrospectively authorised under section 54(8).
5. Welfare. P’s welfare throughout life was paramount. A parental order has profound and lifelong legal, personal, psychological, emotional, social and potentially cultural consequences. The court considered the second applicant’s extensive offending history, previous family difficulties and identified risks, but also the protective role of the first applicant, the second applicant’s engagement with probation and support, P’s settled care, and the importance of legal and familial coherence with her full biological sibling.
6. The court carefully scrutinised public-policy concerns. Following Re L (a minor) [2010] EWHC 3146 (Fam), an order should be withheld only in the clearest case of abuse of public policy where welfare otherwise supports it. This was not such a case. Refusal would disproportionately interfere with the article 8 rights of P and the applicants and leave P with an incongruent legal status. A parental order was made.

This was a first-instance application. Directions were given during 2023 and 2024, including a local-authority assessment and a Children Act 1989 lives-with order. The application was finally determined by the High Court on 29 October 2024.