Factual and Procedural Background
This matter concerns two applications relating to a child, born in 2017 and currently 16 months old. The first is a joint application for a parental order made by two applicants, hereafter referred to as the Appellants, with the respondent being the gestational surrogate mother and her husband. The child was born in Canada following a surrogacy arrangement entered into there. The second application is for a child arrangement order to determine the time the child spends with each of the Appellants.
The Appellants reached agreement on all matters concerning the child arrangement order, which was approved by the court. The child’s welfare needs are central to the agreed regime, which divides the child’s time between the Appellants. The child is separately represented, and the guardian supports the child arrangements.
The remaining application concerns the parental order sought jointly by the Appellants, supported by the child’s guardian. After hearing legal argument, the court announced its decision to make the parental order, with reasons provided in the judgment.
The background reveals that the Appellants began their relationship in 2013, lived together, and purchased a property. They opted for surrogacy in Canada, engaging Canadian legal advice and a Canadian surrogate. The embryo was created using one Applicant's gametes and a donor egg, transferred to the surrogate in the US. The child was born in Canada in 2017, and shortly thereafter the Appellants returned to the UK with the child.
The parental order application was issued in March 2018, with directions for evidence and a child arrangement order made in August 2018 granting parental responsibility to both Appellants. Relationship difficulties arose thereafter, including police involvement and psychological support for one Applicant, leading to further child arrangement proceedings and interim orders sharing care.
Following reports from the child’s guardian, the parties agreed on care arrangements, leaving the parental order issue for determination. Most statutory criteria were accepted as met, with two criteria requiring detailed consideration.
Legal Issues Presented
- Whether the Applicants satisfy the requirement under section 54(2) of the Human Fertilisation and Embryology Act 2008 that they be "two persons who are living as partners in an enduring family relationship," particularly regarding the timing of this relationship.
- Whether the child's home is with the Applicants at the time of the application and the making of the order, as required by section 54(4)(a) of the Human Fertilisation and Embryology Act 2008.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| P and B v Z [2017] 2 FLR 168 |
Enduring family relationship is a question of fact; courts best placed to determine this without arbitrary definitions. |
Used to confirm the factual nature of enduring family relationship and to support purposive construction of s 54(2). |
| A v P (Surrogacy; Parental Order: Death of Applicants) [2012] 2 FLR 145 |
Broad and purposive construction of s 54 to give effect to the right to family life under Article 8 ECHR, allowing parental order despite death of an applicant. |
Supported a flexible interpretation of timing requirements under s 54, endorsing the transformative effect of parental orders. |
| Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349 |
Flexible construction of 'child’s home' under s 54(4)(a); a child can have home split between separate residences of applicants. |
Applied to confirm the child’s home can be shared between two separate homes, satisfying statutory requirement despite applicants living apart. |
| Re Z (foreign surrogacy: allocation of work: guidance on parental order reports) [2016] 2 FLR 803 |
Further application of broad and purposive approach to 'child’s home' under s 54(4)(a). |
Reinforced flexible interpretation of child's home with applicants in surrogacy contexts. |
| DM & LK v SJ & OJ [2017] 1 FLT 514 |
Application of broad interpretation of child's home where applicants did not share the same physical home. |
Supported conclusion that child’s home can be divided between two residences of applicants. |
Court's Reasoning and Analysis
The court analysed the two contested statutory criteria under s 54 HFEA 2008 in detail. Regarding the enduring family relationship under s 54(2), the court found this to be a question of fact without an express timing requirement. The court noted the absence of any legislative indication that the enduring relationship must subsist at the time of the order, contrasting it with other provisions that do specify timing. Parliamentary debates confirmed the legislature’s intent to leave such assessments to the courts without arbitrary time limits.
The court relied on precedent to support a purposive and flexible interpretation, recognizing the transformative purpose of parental orders and the importance of the child’s right to family life under Article 8 of the European Convention on Human Rights. It concluded the Applicants were in an enduring family relationship when the application was made, satisfying s 54(2).
On the question of the child's home under s 54(4)(a), the court applied established case law adopting a broad and purposive construction. Even though the Applicants had lived separately since August, the child had continuously lived with one or the other, with no other home existing. The court accepted that a child’s home may be divided between two residences, satisfying the statutory requirement.
Finally, the court considered the welfare of the child under s 1 ACA 2002, finding that making the parental order would secure the child’s lifelong welfare needs by providing legal recognition and stability matching the child’s lived reality. The child’s guardian supported the order, and the court was satisfied the parental order would provide the necessary security and stability.
Holding and Implications
The court granted the parental order sought by the Applicants.
Holding: The court held that the Applicants satisfied all statutory criteria under s 54 HFEA 2008, including the enduring family relationship and child’s home requirements, and that making the parental order was in the child’s lifelong welfare interests.
Implications: The decision confirms a flexible and purposive approach to the timing of the enduring family relationship requirement and the definition of the child's home in parental order applications. The ruling emphasizes the transformative nature of parental orders in aligning legal recognition with the child's lived family reality. No new precedent was established beyond applying and reaffirming existing principles in the context of a foreign surrogacy arrangement.