A & B v SA
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis DBE |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] EWHC 426 (Fam) |
| Court | Family Division |
| Date | 14 February 2013 |
| Docket Number | Case No: IL12P00150 |
[2013] EWHC 426 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis DBE
Case No: IL12P00150
A & B in Person
Ms Penny Logan (Cafcass Legal) as Advocate to the Court
Hearing date: 14 February 2013
This case concerns an application by A and B for a parental order concerning a young boy C born in March 2012.
A and B entered into a surrogacy agreement with a surrogate mother based in India. The agreement was arranged through a surrogacy clinic based in India. The surrogate mother is Indian, one of the applicants is the biological father and the egg donor originated from India.
The applicants applied for a parental order pursuant to section 54 Human Fertilisation and Embryology Act 2008 ('HFEA 2008').
The surrogate mother is the Respondent. She has taken no active part in these proceedings.
Due to the issues raised on the papers regarding the applicants' domicile, which is one of the mandatory gateway requirements that gives the court jurisdiction (see s 54 (4) (b) HFEA 2008 which provides "At the time of the application and the making of the order either or both of the applicants must be domiciled in the United Kingdom or in the Channel islands or the Isle of Man"), I directed Cafcass Legal was appointed as Advocate to the Court. This was for the sole purpose of addressing the court on whether the applicants had acquired domicile of choice in England and Wales at the date of the parental order application. I am very grateful to Ms Logan for the helpful skeleton argument submitted by her outlining the legal framework and analysis of the written evidence.
The Applicants submitted an excellent court bundle that contained all the relevant material. The court appointed a parental order reporter who has provided a detailed report, which considered not only the relevant criteria in s 54 HFEA 2008, but also the welfare considerations if the criteria are satisfied. At the hearing on 14 February 2013, as well as considering the court bundle, both applicants gave oral evidence and I heard submissions from the applicants, Ms Logan and the parental order reporter. I made the parental order and gave brief reasons but indicated that full reasons would follow in this judgment.
Background
The applicants are a same sex couple. A was born in Poland in 1982. At the age of 17 years he moved with his family to America. It was intended to be a permanent move. His family have not returned to Poland and neither has he. His father has died and his mother continues living in America. B was born in Memphis, Tennessee in 1973. His mother, brother and two sisters remain living there.
A and B met in 2004. They subsequently moved to Memphis, Tennessee and lived together as a couple. They purchased their own property. Same sex unions are not recognised in the State of Tennessee. In January 2008 the applicants entered into a domestic partnership in the State of California.
In July 2008 the applicants moved to England. They set out in their written and oral evidence that this move was intended by them both to be a permanent move. They sold their home in America and severed all financial ties with America. A had an automatic right of entry as an EU citizen and B entered as a family member. The domestic partnership is recognised in this jurisdiction as a civil partnership pursuant to the provisions in ss 215 (1), 212 (1) and Schedule 20 Civil Partnership Act 2004. Both the applicants are entitled to remain in this jurisdiction permanently. They run a graphic design business together and pay tax and national insurance contributions here. They live in rented accommodation and their intention is to buy a property.
The primary reason given by both applicants for making their permanent home here is founded on the legal recognition and protection of same sex partnerships. They wanted to start a family and wanted to ensure they raised their child in a jurisdiction that was tolerant and protective for such families. They considered a number of options. A said same sex partnerships are not recognised in Poland and same sex couples are not allowed to adopt. He has not lived or visited there for over 13 years and has no family or other connections there. He was very concerned about the attitudes to same sex couples there and B does not speak Polish. They considered moving to other States in America, but as a civil partner of a US Citizen A is unable to become a permanent resident or citizen as the U.S. Government prohibits same sex couples from federal benefits such as immigration, tax equality and health care. In oral evidence A said they considered Canada as well but there were restrictions on the entry requirements. It was in this context they decided in 2008 to move to England and cut all ties with America, save for visiting their family.
Following their arrival here they have rented accommodation and A has completed a degree course here.
Having based themselves here they decided to further their plans to start a family. They decided to go through the surrogacy process in India as they considered their legal position is protected by law there from the outset. They chose the D clinic as the lead doctor had trained and practised in the United Kingdom before moving to India to set up the clinic.
The surrogate mother was selected through the clinic and the applicants were sent her profile. Following the preliminary enquiries the surrogacy agreement was entered into through the clinic and signed copies are in the court bundle. The Gestational Surrogacy Agreement was signed by the applicants and the respondent in July 2011. Following the applicants' selection of the egg donor the necessary procedures were carried out and the embryo transferred to the surrogate mother. The applicants received regular updates and arrived in India a few days before C was born.
Following his birth C was placed in the care of the applicants, where he has remained since.
The applicants had researched the immigration process to return with C to this jurisdiction. Following DNA testing to establish C's biological connection with B, C was issued with a U.S. Passport. It was not necessary for entry clearance to be obtained to return to this jurisdiction as both the applicants had residency status here and C was treated as a family member of an EEA citizen exercising freedom of movement in the EU. The applicants returned to this jurisdiction in April with C and applied to the UKBA for confirmation of C's residency status. This was granted on 23 January 2013.
The applicants had not sought legal advice about C's position here. A applied for a parental responsibility order as they thought this would be the best way for him to be able to make decisions on C's behalf. They did not consider it was necessary to apply for any orders for B as they considered having his name on the Indian birth certificate was sufficient. Their application for a parental responsibility order for A was made on 25 May 2012. It is now accepted that this order was incorrectly granted as the court only has power under the Children Act 1989 (CA 1989) to make such orders in favour of a spouse/civil partner of a 'parent who has parental responsibility' section 4A CA 1989. Although B has a biological connection to C and is treated as a matter of English law as C's legal father (as the surrogate mother is not married) that does not give B parental responsibility.
The applicants wanted to secure their legal position regarding C and took legal advice in August 2012. They thought they could perhaps apply to adopt. It was only then they discovered their legal status regarding C. The detailed letter of advice sent by their solicitors on 10 August 2012 is in the court bundle.
Following that advice the applicants lodged an application for a parental order. The matter came before me for directions in November and December and I listed the matter for final hearing on 14 February 2013.
Section 54 HFEA 2008 criteria
Dealing with each of the criteria listed in section 54 in turn.
(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if—
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c) the conditions in subsections (2) to (8) are satisfied.
The...
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