D & G v ED & DD (1st & 2nd Respondents) A & B (by their Children's Guardian) (3rd& 4th Respondents)
| Jurisdiction | England & Wales |
| Judge | The Honourable Ms Justice Russell DBE |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 911 (Fam) |
| Docket Number | Case No: ZC68/14 AND ZC69/14 |
| Court | Family Division |
| Date | 01 April 2015 |
[2015] EWHC 911 (Fam)
IN THE FAMILY COURT
(Sitting in the HIGH COURT FAMILY DIVISION)
IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008 (Section 54)
AND IN THE MATTER OF A (A Boy) (Born 12th October 2006) & B (A Girl) (Born 27th April 2009) (By their Children's Guardian)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Justice Russell
Case No: ZC68/14 AND ZC69/14
and
Ms Natalie Gamble (of Natalie Gamble Associates) for the Applicants
Ms Penny Logan (of Cafcass Legal) for the 3 rd & 4 th Respondents
The 1 st and 2 nd Respondents did not appear and were not represented
Hearing date: 14 th January 2015
Introduction
This is an application for parental orders in respect of two children who were born as a result of gestational surrogacy agreements entered into in the USA in 2006 and 2009. The application originated as an application for adoption orders, pursuant to s 46 of the Adoption and Children Act 2002 (ACA), in respect of A, who was born on the 12 th October 2006 and is now 8 years 3 months old, and his sister B, who was born on the 27 th April 2009 and is now 5 years 8 months old. At the time the applications were made on 23 rd June 2014 the Applicants had been advised that it was not possible to make applications for parental orders as they had exceeded the six month time limit provided for in s 54(3) of the Human Fertilisation and Embryology Act (HFEA) 2008. On the 3 rd of October 2014 in Re X [2014] EWHC 3135 Sir James Munby, President of the Family Division, handed down a judgment in which he made a parental order in respect of a child when the application had been made some 2 years and 2 months after the birth of the child.
In this case the time elapsed is considerably longer and both children were conceived (and A was born) before the HFEA 2008 came into force when the HFEA 1990 provided the relevant statutory framework for parental orders and the regulation of surrogacy arrangements in the UK. As with the 2008 Act, section 30(2) of the 1990 Act set down those applicants "must apply for an order within six months of the birth of the child." These applications are made pursuant to the HFEA 2008.
In one respect the case has a marked similarity with the X case which is that the Applicants as "the commissioning parents" were not aware of the need to apply for parental orders to provide their children with the same legal status as they had in California where they were born.
Summary
There is no dispute on the facts of this case or on the order that the court is being urged to make; the respondents to the proceedings are the gestational surrogate and her husband and have taken no part in the proceedings except to confirm that they fully support the court making parental orders. The children were joined as parties and are represented through their guardian by Cafcass Legal. The guardian strongly supports the application for parental as opposed to adoption orders on welfare grounds. There is therefore no dispute between the parties themselves. This is not unusual in applications for parental orders, particularly those where there has been a carefully regulated legally binding commercial surrogacy contract in the USA where the children are, as a matter of law, the children of the commissioning parents.
Background
The Applicants are D who is the commissioning and biological father and G the commissioning mother. It is not necessary to set out the full background of this case and, in particular, the history of the Applicants' attempts to have a family without the assistance of a gestational surrogate except to say that they were unable to have children carried by the commissioning mother. Having decided on California, because of the considerable experience and sound regulatory framework in surrogacy, they approached a well established agency in Los Angeles and were matched with the 1 st Respondent. The Applicants took legal advice from an attorney experienced in reproductive law. They were advised that the commissioning father would be the biological father of any child born to the surrogate and that they would be the legal parents of the child in the US. They did not take advice in the UK nor was it suggested they should do so by any of the professionals that they were in contact with in California.
A was born in October 2006 following IVF using a donor egg and the sperm of the commissioning father. Under Californian law and following a court order of the Superior Court of California dated 18 th October, 2006 A is legally the child of the Applicants. His birth certificate records the Applicants as his parents. A was granted a US passport in December 2006 on which he travelled to the UK with his parents (under US law). He was granted a UK passport on 30 th January 2007.
A had been born prematurely and was referred to a specialist paediatrician by the family GP. The fact that the history of his conception and birth was openly divulged by the Applicants can be seen from his medical records. Similarly whether a UK passport should have been granted or not it was and all the circumstances of A's birth and travel to the UK were disclosed when the application was made. No professional who dealt with A (or indeed with B) ever raised any questions regarding the Applicants' legal status as parents.
B was born in April 2009, again following IVF to the same gestational surrogate. Before she was born an order was made in the Superior Court confirming the Applicants as her legal parents and in accordance with Californian law they were named as B's parents on her birth certificate. Once again a US passport was issued and B entered the UK on that passport and was issued with a British passport.
The two children have grown up with the Applicants who have been their parents in every sense since the day they were born. I have read about the children not just in their parents' statements but in the thorough, careful and sensitive report of the children's guardian, John Power, the medical reports prepared about both children and the applicants, and the two s44 (ACA 2002) Annex A reports prepared on behalf of H County Council in respect of the adoption application. The children have been brought up openly in the knowledge and understanding of where they came from and how they were born to a surrogate as their mother could not carry them and that their father is their biological father. G explained to me in oral evidence the sensitive, yet open and age appropriate way, she had told the children about their genetic and gestational history. They know the respondents as both families have maintained a friendship by telephone and email since the children were born.
The children are aware of this application and that their parents had applied for an adoption order before the application for parental orders was made as they were seen by the social worker who prepared the Annex A reports. As she said "[D] and [G] are [the children's] parents in every sense other than legally. [They] have lived with them since birth and they have met all [their] physical and emotional needs. The referees, the head teacher of the children's school and my observations all confirm that the children view [D] and [G] as their parents." Their guardian says simply " They are palpably attached to their intended parents." And " Observably these children feel loved, secure and wanted by the Intended Parents who less loftily they know as their mum and dad."
A who as the elder child has a greater understanding of what is happening has expressed a clear preference for a parental order being made rather than being adopted; which he explained as having some stigma attached to it. He has a close friend who is adopted and A is aware that he, unlike his friend, is the biological child of his parent and that both parents arranged to have him "made".
Overall I have a great deal of evidence concerning the background about the children and their parents; unprecedented in terms of an application for parental orders as the thorough Annex A reports would not usually be available. I have no doubt at all that these children are beloved and happy children who have had exemplary care from their parents D and G.
At my direction the Applicants filed statements about why they came to make these applications so late. I heard their oral evidence. I was impressed by both applicants as witnesses. G in particular came across as a most emotionally intelligent parent who was attuned to her children. Her description of the children and their wishes and feelings was heartfelt and insightful, without being in the least sentimental. I was most struck by her explanation of the children's story and how they understood their place in their family; that their parents had made them travelling half way round the world to do so. G told me that the children had their story and that to make adoption orders would alter it, adding what she called a "sub-section"; that it might come up and be an issue at critical times in their future lives and would be in contradiction to who they are in their family and how they came to be here.
Both D and G described how they found out that the children were not legally their children in this jurisdiction as they had thought. As D said they had no idea that they were not the children's legal parents under UK law. I accept that they had researched surrogacy in the USA and that nothing either in their enquiries prior to embarking upon surrogacy...
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