Mr K & Anor v Mr Z & Anor

In determining an application for a parental order, the child’s welfare throughout life is paramount. The court must consider the lifelong consequences of the order and whether the child’s future care is adequately secured. This includes planning for the incapacity or death of one or both intended parents, particularly where the applicants are single or of advanced years. Relevant planning may include estate arrangements, financial provision, lasting powers of attorney, proposed carers and contingency arrangements. A parental order may be appropriate where it provides permanence, security and legal recognition of the child’s family relationship, and where the alternative would leave the child without the intended parents’ legal status or with no realistic prospect of lifelong care from others.

Mr and Mrs K, a married couple aged 72, applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of B, born in the United States following a gestational surrogacy arrangement. Mr K was genetically related to B. The surrogate and her husband consented, and the statutory criteria were otherwise satisfied.

The court required further evidence concerning B’s future care if either applicant became incapacitated or died. The central issue was whether making a parental order was consistent with B’s welfare throughout his life, having regard to the applicants’ ages and the arrangements made for B’s care, guardianship and financial security.

1. Parental order made. The applicants satisfied the criteria in section 54 of the Human Fertilisation and Embryology Act 2008. The court authorised the payments made in connection with the surrogacy arrangement because they were lawful in California, did not involve abuse of public policy, and were overridden in any event by B’s welfare needs.
2. The child’s welfare throughout life was paramount under section 1(2) of the Adoption and Children Act 2002. The court applied the welfare checklist in section 1(4), including B’s relationships, needs, background, likely lifelong consequences and the quality of care available to him.
3. A parental order has profound and lifelong legal, personal, emotional and psychological consequences. The court was guided by the observations in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam). The order would provide permanence, security and formal recognition of B’s relationship with the applicants.
4. The applicants’ advanced age made it necessary to examine carefully the arrangements for B if either or both became incapacitated or died. The court required those arrangements to be planned and actioned. Appropriate wills, lasting powers of attorney, financial provision and proposed special guardianship arrangements ultimately satisfied the court that B’s short-, medium- and long-term welfare was secured.
5. The case was materially different from Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam). Here, there were no immigration or nationality difficulties, the applicants had obtained pre-birth parentage orders, the arrangement was transparent and regulated, and there was no evidence of exploitation.
6. The court endorsed the guidance in Re Z (Foreign Surrogacy) [2024] EWFC 304 and added three issues for intended parents to consider: estate planning; future care and financial arrangements in the event of incapacity; and future care and financial arrangements in the event of death. These matters are especially important for single applicants and applicants of advanced years.

First-instance decision. No prior appellate decision was stated in the judgment.