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Guidance on foreign surrogacy

 

Yet another High Court decision about international surrogacy.

 

Re Z (Foreign Surrogacy:Allocation of work: Guidance on parental order reports) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/90.html

 

This one throws up a lot of the issues that can go wrong with international surrogacy. The arrangements were all made, properly and legally in India. The commissioning ‘parents’ then found it impossible to come back to England with the twins until they had a Parental Order. But they in turn found it difficult to get a Parental Order, because there was uncertainty about whether the applicants needed to be present in England at the time of the application, whether the child’s ‘home’ had to be in England, and whether the parental order reporter had to go to India to observe the ‘parents’ with the child. In fact the parents had to leave the twins in India, deal with matters in Court and then get the twins from India, a sorry state of affairs.

 

Ms Justice Russell cuts through a lot of this with the guidance that applications for Parental Orders with an international element (where child is born outside of England and Wales) should henceforth be heard only in the High Court. They are also to be heard in London, where possible by Pauffley J, Theis J or Russell J, all of whom have been at the forefront of the most challenging cases of this nature and are well placed to resolve difficult issues.

 

 

  • Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

 

i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child’s place of birth was 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 Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.

iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).

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 (subject to their own guidance and the guidance below).

 

  • The President has seen paragraph [73] and has approved it.

 

 

On the particular issues that arose in this case :-

 

  1. Do the parents need to be physically present in the UK to apply?    No, they just need to be domiciled here.
  2. Does the ‘home’ with the child need to be in the UK?  No, and also it does not matter that the time the children were in a home with the applicants was not continuous. It needs to be at the time the application is made and again at the time that the order is made.

 

The child’s home must be with applicants at the time they made the application (Section 54(4) (a) HFEA 2008) and at the time the court is considering making the order. Although the twins had remained in India and at times were not being cared for there by the Applicants there was no issue in this case as the place the children were living was a home that was entirely arranged and provided for by the Applicants; moreover the commissioning father had returned to India in February and remained with the children until the whole family came to the UK in May 2015. Either or both the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man (sub-section (4) (b)). Domicile can be problematic in some cases as it is a peculiarity of English and Welsh law which is often confused with residence by applicants acting in person (and others). This was the matter with which the court was concerned in the case of Re G referred to paragraph 2 above. In the instant case, however, there was no such problem as both Applicants were born in England to fathers domiciled here and there was no evidence to suggest that they had not retained their domicile of origin. They were both over eighteen years old at the time the order was made and so meeting the requirements of s 54(5) HFEA 2008.

 

3. Does the parental order reporter, who carries out an investigation and reports to the Court need to see the applicants WITH the child?  This seems obvious, but of course in a situation like this that would have involved the reporter (who no doubt has a heavy workload and an organisation not flush with cash) flying out to India.   The answer is longer than the other two, but ultimately ‘yes’

 

 

Parental Order Report

 

  • The children’s guardian was prepared to consider making recommendations without having seen the children in the care of the Applicants in the UK in the exceptional circumstances of this case. She made it plain to the court that this was not her preferred option and it was her assumption that she needed to see the children at home with the Applicants. The only reason that Ms Dawe felt able to consider such a course was because there was what she described as “wealth of material” about the Applicants’ ability to parent K and the support that was available to the Applicants from their wider families. Ms Dawe accepted that parenting three children is different to one but was so concerned about the welfare of the babies stranded in India that she felt that it was an appropriate course for her to take. The role of the Cafcass officer/Cafcass Cymru/Parental Order Reporter and the extent and nature of their investigations was one issue in this case that I specifically sought assistance upon from Cafcass Legal and I am grateful to them for that assistance.
  • A specific issue raised in this case was whether it was necessary for the child or children who are subjects of applications for parental orders under s54 of the HFEA to be seen by the Parental Order Reporter for the welfare report to be properly prepared. The Human Fertilization and Embryology (Parental Orders) Regulations 2010 does not incorporate section 42(7) of the ACA 2002 which require a privately placed child to be seen by the Local Authority together with their adopter in their home, and the Explanatory Memorandum to the Regulations makes no reference to any such requirement. For the purpose of cases of international surrogacy it sets down the following about the acquisition of nationality or citizenship:

 

“Nationality

8.7. As a result of responses to the consultation, and to ensure parity with adoption legislation, the Parental Order Regulations 2010 now ensure that where a parental order is made in the United Kingdom and one or both of the commissioning couple are British citizens, the child – if not already so – will become a British citizen.”

 

  • The Court was referred to the Cafcass Guidance issued to Parental Order Reporters at the hearing on 18th May 2015. This guidance did not require in terms that the parental order reporter sees the child, but since that guidance was issued, further work was undertaken within Cafcass as a result of which fact-sheets were produced for commissioning parents who are applying for parental orders and in the fact-sheet entitled “Parental Order Reporters” intended applicants are told that they will be seen by the parental order reporter with their child (my emphasis). These documents or fact-sheets were only just published within a few weeks of the final hearing of this case on 7th July 2015.
  • Ms Penny Logan of Cafcass Legal, who appeared before me and Ms Lakin, counsel on behalf of the children, both told the court that they were unaware of a case that had been reported where the parental order reporter has not seen the child. This was accepted by Ms Cronin on behalf of the Applicants. Ms Logan pointed out, and as this court is well aware, members of Cafcass Legal routinely act for High Court team guardians in cases where the children are parties. The court was reminded of the fact, well known to it, which is that the High Court team undertakes a large proportion of the parental order cases in the High Court and most of the international ones. Ms Logan told the court that she was unaware, through Cafcass, of any case reported or unreported, where the parental order reporter has not seen the child. Although this court is aware of one such instance in a reported case (see the reference in [86] below) it is difficult to imagine circumstances in which a parental order reporter could properly report on welfare without having seen the child with the Applicants. Ms Logan went on to inform the court she was, at that time, involved in another surrogacy case where determination of the application hade been delayed for a year for similar reasons.
  • It is accepted that it was never the preferred option of the guardian in this case that she would make recommendations in the absence of seeing the children with the Applicants in the UK. It is the experience of this court that applications for parental orders are made by commissioning parents who do not presently reside in this country (when one or both have a UK domicile). In such cases parental order reporters see children with commissioning parents/applicants when they visit this jurisdiction as in the case of CC v DD (supra) [2014] EWHC 1307.
  • In the instant case the guardian’s report amply demonstrates both the value and necessity of such observations in terms of the analysis of the welfare checklist set out in s.1 ACA 2002. While it would have been a matter for the court as to whether it would have made the order in the absence of this work in the circumstances of this case; I took the view that the parental order reporter had to have seen the children with the Applicants before the court could be satisfied about their welfare.

 

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

2 responses

  1. But technically of course this was not a High Court case but a Family Court case, and these cases are specifically not to go to the High Court but to stay in the Family Court to be heard by the trinity of High Court Judges – I have the same problem using that shorthand when it’s a HCJ sitting in the Family Court …

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