Z, Re (Foreign Surrogacy: Allocation of Work : Guidance on Parental Order Reports)
| Jurisdiction | England & Wales |
| Neutral Citation | [2015] EWFC 90 |
| Date | 2015 |
| Year | 2015 |
| Court | Family Court |
Children - Orders with respect to children - Parental order - Foreign surrogacy arrangements - Commissioning parents making commercial surrogacy arrangement in India - Guidance on allocation of work to judges in parental order applications involving foreign surrogacy arrangements - Guidance on parental order reports
Guidance, approved by Sir James Munby P, on the allocation to judges of applications for parental orders under section 54 of the Human Fertilisation and Embryology Act 2008 in cases involving foreign surrogacy arrangements, and guidance on parental order reports.
(1) In keeping with the relevant rules of practice and procedure: (i) all proceedings for parental orders will commence in the Family Court where they will remain; (ii) all proceedings pursuant to section 54 of the 2008 Act where the child’s place of birth is outside of England and Wales should be allocated to be heard by a judge of the Family Division; (iii) in London all cases should, if possible, be allocated to Pauffley, Theis or Russell JJ; (iv) cases originating on circuit, unless transferred to London, should be allocated to be heard locally by a judge of the Family Division; (v) allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (post, para 73).
(2) Although it is necessary for the children to be seen by the parental court reporter there is no requirement to see the children in their homes. However, to be able to investigate as required and to base on evidence their conclusions and recommendations as to the subject child’s welfare, the parental order reporter must see the child with the applicants unless there are compelling reasons why not (post, paras 76–88).
(3) It is established practice in adoption applications with international elements for the court to notify the Home Office and ask whether it wishes to intervene in the case, with consideration of the role of the Home Office to be given at the first directions hearing in an application for adoption in accordance with the relevant practice direction, and that notification and/or invitation should be given to the Home Office, the Passport Office and the Foreign and Commonwealth Office at the first opportunity after it becomes apparent that there are difficulties in the children leaving the country where the surrogacy arrangement is made (post, para 97).
APPLICATIONS
On 1 August 2014 applications were made by the commissioning father XZ and his wife, ZZ, both British citizens domiciled in England, for parental orders under section 54 of the Human Fertilization and Embryology Act 2008 in respect of twin girls born to Y, a gestational surrogate, in India on 5 May 2014 as a result of in-vitro fertilisation following a commercial surrogacy agreement entered into in India between Y and the applicants. The infants remained, effectively, stranded in India because of an inordinate delay in the issue of their travel documents and did not travel to the United Kingdom with the applicants until May 2015, by which time they were just over a year old.
The hearing was held in private and the judgment is reported with leave of the judge on the basis that the anonymity of the children and the parties be strictly preserved.
The facts are stated in the judgment, post, paras 6, 10–16
Kathryn Cronin (instructed by Goodman Ray) for the applicants.
Tracy Lakin (instructed by Barbara Carter) for the children by the children’s guardian.
Penny Logan (of Cafcass Legal) as advocate to the court.
The surrogate mother did not appear and was not represented.
The court took time for consideration.
16 November 2015. RUSSELL J handed down the following judgment.
Introduction1 On 1 August 2014 applications were made for parental orders under section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”) in respect of twins (L and M) born to a gestational surrogate in India on 5 May 2014. The applicants had entered into a commercial agreement through a surrogate agency and clinic in India. To allude to words used previously by Theis J, this is a case which again raises some of the difficult questions regarding the law of surrogacy, particularly in cases involving surrogacy arrangements made in another jurisdiction. The consequences of what the court has to decide are of fundamental importance to the parties and the children, not only because it concerns orders which determine who the legal parents of these young children are, but also because it determines the individual legal status of each child throughout their lives.
2 The difficulties that were encountered by the court in this case are illustrative of the complex issues seen in cases with an international element as a result of international surrogacy. These difficulties are not novel and mirror some of those found in cases of inter-country adoption; they arose in cases under the Human Fertilisation and Embryology Act 1990. Following the decision of McFarlane J in In re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam); [
3 In In re G the judgment concluded (para 52(c)) that the issues raised in foreign surrogacy were of a similar standard and complexity to those raised in cases of inter-country adoption and so there were strong grounds for any parental order application that involves an international element being transferred to a nominated inter-country adoption county court or to the High Court at the first directions hearing. This case predated the HFEA 2008 and the formation of the Family Court. During the intervening period (before the Family Court came into being in 2014) the practice had evolved in London and in some family courts in England and Wales whereby all cases involving an international surrogacy agreement were transferred to be heard in the High Court at the outset of the proceedings. In this case the applications were not listed to be heard by a judge of the Family Division for a full eight months (the order itself transferred the case to the High Court but following the formation of the unified Family Court this was erroneous).
4 The practice of transferring international surrogacy cases in the past was consistent with Schedule 1, paragraph 3(f)(iv) of the distribution of business in the High Court of the Senior Courts Act 1981, which assigned all proceedings under section 30 of the 1990 Act to the Family Division. For the purpose of allocation at present rule 13.9(1)(e) of the FPR 2010 which reads that the court should, at the first appointment, “consider, in accordance with rule 29.17, whether the case needs to be transferred to another court and, if so, give appropriate direction” and paragraph 4(f) of Schedule 1 to the Family Court (Composition and Distribution of Business) Rules 2014 (in force from 22 April 2014 on the formation of the Family Court) which provides that proceedings pursuant to section 54 of the HFEA 2008 in which the child’s place of birth was outside of England and Wales should be heard by a judge of the High Court, Family Division, supports this practice. The practice of allocation to a judge of the Family Division is by no means uniform and it is intended that the guidance in this judgment should provide for uniformity of practice in future.
5 Parental orders were granted and the parties were made aware of that decision in July 2015 with reasons to follow.
Summary of case and guidance Outline of facts6 The facts in brief are as follows; this case concerned twin girls born to a gestational surrogate (“Y”) as a result of in-vitro fertilisation following a commercial surrogacy agreement entered into in India between Y and the applicants who are British citizens domiciled in England. Y has no biological connection with the children and the applicant and commissioning father is their biological father. The non-identical twins were born on 5 May 2014 and the application for parental orders was issued on 1 August 2014; however, the infants remained, effectively, stranded in India because of an inordinate delay in the issue of their travel documents and did not travel to the UK with the applicants until May 2015, by which time they were just over a year old. The situation for them and for the commissioning parents was increasing parlous as time passed placing a significant and increasing financial and emotional burden on the family as well as denying the children the opportunity to develop the important initial bond that babies need.
7 Despite the difficulties that the children and the applicants were facing, the case was not allocated to a specialist High Court judge and it is not unreasonable to suggest, as was later submitted by...
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