Private Law
March 2022

The court was concerned with an application for a parental order relating to Z, who was born in 2017. The applicants were Z’s mother and father. The Respondent to the application was the gestational surrogate mother who gave birth to Z as a result of a surrogacy arrangement entered into between the parties in Georgia. Z was also a party to these proceedings, represented by his Children's Guardian, Julia Green.

The application was being considered in the context of ongoing care proceedings relating to Z issued in April 2020. During the care proceedings it was discovered Z had been born via a surrogacy arrangement and no parental order had been applied for. It is of note that the father initially stated in those proceedings that the mother had carried Z. It was only when the mother filed her evidence did it become clear he had been born via a surrogacy arrangement. Final orders within the care proceedings relating to Z were adjourned to enable this application to be made.

The parties agreed as to the need for a parental order, the issues centred on understanding what the surrogacy arrangement was and gathering the evidence to meet the criteria under s 54 Human Fertilisation and Embryology Act 2008 ('HFEA 2008').

The court noted the process under the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents on Apostille. That process enabled the written consent provided by the surrogate mother to be done in circumstances where it was subsequently confirmed as being a valid and lawful notarised document under Georgian law.

In terms of the relevant background the applicants are Z's genetic parents. They married in 2008, separated and divorced in 2020. The mother is from Moldova and has Italian and British citizenship, as a result of her marriage to the father. The father has dual British and Italian citizenship.

Within the care proceedings, expert advice was received outlining the need for an application for a parental order in relation to Z. The advice stated that in the absence of such an order being made the applicants are not properly recognised as Z's legal parents and that the surrogate mother, Y, remains Z's legal mother in this jurisdiction by virtue of s33(a) HFEA 2008.

The legal mother of a child is the person who carries the child, regardless of whether the child is genetically related to the surrogate mother or not, or whether the treatment took place in this jurisdiction, or abroad. In relation to the father, if the surrogate mother was not married the father is regarded as the legal father as he is the biological father (common law position) and no other person is being treated as the father/second parent (pursuant to ss 35, 36, 42 or 43 HFEA 2008).

The background and circumstances of the surrogacy arrangement remained somewhat uncertain. The court stated that both parents failed to give the court information in a helpful, consistent or reliable way. It was difficult to locate the surrogate mother. The solicitor for the child did eventually make contact with the surrogate mother, and was able to speak to her, with the assistance of an interpreter. She confirmed that she had carried Z, consented to the parental order being made and when asked about any payments confirmed they had been made, but could not recall any detail. Arrangements were put in place for her written consent to be completed and notarised. The Court was satisfied that Y had given her consent freely, unconditionally and with full understanding as to what is involved and that consent complied with the requirements set out in rule 13.11 (4) Family Procedure Rules 2010 regarding agreements executed outside the United Kingdom.

The eight relevant criteria under section 54 HFEA 2008 were summarised as follows:

1. The biological connection with at least one of the applicants and the child, and the child was not carried by one of the applicants (s54(1)(a) and (b));
2. Whether the applicants at the time of the application and at the time when the court is considering making an order are married, civil partners or in an enduring family relationship (S54 (2)).
3. The application should be made within six months of the child's birth (s54(3)).
4. At the time of the application and at the time when the court is considering making an order is the child's home with the applicants (s54(4)(a)).
5. At the time of the application and at the time when the court is considering making an order at least one of the applicants is domiciled in this jurisdiction (s54 (4)(b)).
6. Whether the applicants are over 18 years (s54 (5)).
7. Whether the surrogate mother has given her consent, freely and with full understanding, to the making of a parental order at least 6 weeks after the birth of the child (s54 (6) and (7). If such written agreement is executed outside the United Kingdom rule 13.11(4) Family Procedure Rules 2010 (FPR 2010) provides details of who can witness such agreements, including a notary public.
8. Whether any payments have been made, other than for expenses reasonably incurred and, if so, do they require to be authorised by the court (s54 (8)).

There was agreement that some of the criteria under s 54 were readily established, others required more careful consideration.

The court found as follows:

1. DNA tests confirmed the biological connection between both of the applicants and Z (s 54 (1)(b)) and he was carried by someone other than one of the applicants, namely Y (s 54(1)(a)).
2. The applicants separated in early 2020 and were divorced in October 2020. They submitted they met this requirement. They lived together with Z on his arrival in London in early 2018, until the mother left the home in March 2020. At the time of Z's birth and for the first three years the applicants were married, their lives were inextricably linked and although now separated the father has an ongoing relationship with the children, including Z. Reliance was placed on Re X [2015] 1 FLR 349 where Munby P made a parental order in circumstances where the applicants had been separated for 12 months and the child had been living in two separate homes throughout. The court noted that the statute should be read in a way that was compliant with the European Convention. The court accepted that, “in the circumstances of this unusual case, that although the applicants are separated and DJ Duddridge made significant findings about the nature of their relationship, they had established a family life.” (paragraph 46).
3. At the time of Z's birth the applicants stated they were not aware of the need to apply for a parental order. It was not until receipt of the advice from Dr Jackson did they understand such an application was required. Once they were aware the application was made the following month. Munby P in Re X (A Child)(Parental Order: Time Limit) [2015] 2 WLR 745 concluded there is power to make a parental order, notwithstanding the expiry of the 6 month time limit. One of the factors the court needs to consider is whether the application was made relatively promptly once it was known such an application was required to be made, which it was in this case.
4. This requirement was met, de facto family life had been established between the applicants and Z, Z had lived with the applicants since soon after his birth until early 2020, Z continues to live with the mother and spent some supervised time with the father in accordance with his best interests, pursuant to the order made by DJ Duddridge.
5. At least one of the applicants to be domiciled in this jurisdiction, neither the mother or father were born here. It was necessary to consider whether either of them could establish this jurisdiction is their domicile of choice. The mother made clear in her evidence that her intention is to remain living in this jurisdiction and she has no intention to return to live in her domicile of origin, Moldova, either in the short of long term. Mrs Justice Theis accepted that evidence, as a consequence this criteria for domicile was met by the mother whose domicile of choice is here.
6. Both applicants are over the age of 18 years, as required by s 54 (5).
7. The court was satisfied that Y consented to the making of a parental order and that consent was given freely, unconditionally and with full understanding.
8. It was difficult to get a clear picture of precisely what payments were made, and when. This appeared to have been a commercial surrogacy arrangement, which involved payments other than for expenses reasonably incurred but on the information available it was difficult to see precisely what the level of those payments were. Whilst the court was concerned about the applicant’s approach to the surrogacy and the lack of detailed information, there was no suggestion the applicants did not act in good faith, or that they sought to get round the authorities. It appeared to the court that this was an arrangement which involved payments other than for expenses reasonably incurred. Such an arrangement is permitted in the jurisdiction where it was entered into, it is not suggested the payments were disproportionate, Y co-operated voluntarily with the process whereby she gave her consent to the making of a parental in these proceedings and has remained available to contact. Although recognising the information was not as clear as it could have been, Mrs Justice Theis was satisfied that the court should authorise any element of the payments made that do not relate to expenses reasonably incurred.

If the s 54 criteria are met the court needs to consider whether making a parental order will meet Z's welfare needs. In considering whether it does his life-long welfare needs are the courts paramount consideration, having regard to the matters set out in s1 (4) ACA 2002. Mrs Justice Theis was satisfied that such an order would meet Z’s welfare needs, stating at paragraph 66:

“The evidence clearly demonstrates making a parental order will secure Z's lifelong welfare interests in accordance with s1 ACA 2002. Through such an order his legal parental relationship with the applicants is recognised, particularly the mother who has been responsible more recently in providing the stability of care Z's needs require. It will extinguish his legal relationship with Y, which reflects the reality of his life. A parental order will also secure his legal relationship with his older siblings in a way that brings about lifelong security for him in terms of his identity. As Ms Green noted, they are a sibling group and as such have significant attachments to each other, a parental order in relation to Z will provide a legal security to those underlying strong attachments.”

An appeal by a mother against findings of fact in private law proceedings, the appeal was allowed. The mother appealed a decision of District Judge Miles in proceedings relating to 2 children, A aged 9 and B aged 7. The finding of fact hearing was heard over 2 days, 17 and 18 August 2021, and judgment was handed down on 12 September 2021. The father had applied to enforce a child arrangements order made on 3 October 2019, an order which was finalised by agreement for the children to live with their mother and have regular contact with their father. The mother responded by applying for variation of that order, making allegations of domestic abuse. Initially a fact finding hearing was not deemed necessary and a section 7 report was directed. However an incident between the parties in October 2020 led to non-molestation order proceedings, direct contact was replated with indirect contact and a fact finding hearing was deemed necessary and was listed on 17 and 18 August.

At the hearing the judge heard evidence from the parents, M's brother and a social worker. She had schedules of allegations from both parties. There was no ground rules hearing, and from the transcript, no consideration of special measures. The hearing was fully remote, taking place as it did within the Covid 19 pandemic. The appellant was represented, the respondent was not. The submissions made on behalf of the mother did not address the procedural issues raised in this appeal. The judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; she was not referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N.

The judge broadly found most of the mother's allegations not proved. In respect of the father's allegations of breach, she found some proved, some not proved, and others that M had a reasonable excuse. The mother appealed.

In relation to the law on appeal, FPR 30.12(3) provides that an appeal may only be allowed where the decision was wrong or unjust for serious procedural irregularity. The court may conclude that a decision is wrong or procedurally unjust where:

a) an error of law has been made;

b) a conclusion on the facts which was not open to the judge on the evidence has been reached: Royal Bank of Scotland v Carlyle [2015] UKSC 13, 2015 SC (UKSC) 93.

c) the judge has clearly failed to give due weight to some very significant matter or has clearly given undue weight to some matter: B-v-B (Residence Orders: Reasons for Decision) [1997] 2 FLR 602.

d) a process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136.

e) a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal) [1985] FLR 894.

The judge hearing an appeal has to decide whether the judgment is sustainable.

If in any case where it is alleged, admitted or if there is reason to believe that a child or party has experienced or is at risk of experiencing domestic abuse, PD12J Family Procedure Rules 2010 applies. Domestic abuse is defined in paragraph 3 as including any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners of family members. The range of behaviour addressed is wide and includes psychological, physical, sexual, financial or emotional abuse. Under PD12J, the process to be adopted by the court where there are disputed allegations of abuse is considered. The court may hold a separate hearing to decide what has happened in order to provide the basis for a welfare report or risk assessment.

Among the matters to which the District Judge was not referred (and should have been) was the decision of the Court Of Appeal in Re H-N and Others (Domestic Abuse: Finding of Fact hearings) [2021] EWCA Civ 448. The Court held in that case that if either or both parents asserted that there was a pattern of coercive or controlling behaviour then that should be the primary issue for determination unless any particular factual allegation was so serious that it justified determination regardless of any patterns of coercive and/or controlling behaviour. In that hearing all parties acknowledged the need for the court to concentrate on the wider context of a pattern of behaviour as opposed to a list of specific factual incidents, which are often set out in Scott Schedules. The court in that case observed that the Family Court should be concerned with how the parties behaved and what they did with regard to each other and their children, rather than whether that behaviour falls within a definition of rape, murder, manslaughter or other serious crimes. In other words, it is what they do with regard to each other as opposed to what it might or might not be called.

A significant issue in this appeal was the treatment of vulnerable witnesses. The hearing before the District Judge took place before the Domestic Abuse Act 2021 was passed into law. Nevertheless, s63 provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be reduced by reason of vulnerability. Rule 3A2A of the Family Procedure Rules 2010 adopts this, although it was not in force at the time of the hearing. The court is required to consider special measures.

At that time there were measures in place for vulnerable witnesses which the court was obliged to follow, set out in rule 3A and PD3AA. When considering the vulnerability of a party or witness as mentioned in rule 3A.4 or 3A.5, the court must have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7. Practice Direction 3AA gives guidance about vulnerability.

There were eight grounds of appeal and the appeal was allowed.

Ground 1 - The Judge was wrong in failing to implement special measures pursuant to PD3AA and PD12J. HHJ Levey found that it was clear that there was no ground rules hearing, and therefore no consideration of whether any special measures needed to be in place. The court accepted that the obligation to consider whether special measures are necessary and if so, what they should be, lies with the court. It is clear that it does not matter that the appellant was represented and that it appears that the court was not asked to consider special measures. The judge made no reference to Part 3A, PD3AA or PD12J in her judgment. She did not consider the definition of domestic abuse. The risk that the appellant may have been a vulnerable witness should have been addressed and measures could have been taken. These are all factors that were found to have rendered the decision unsafe, raising, as they do, significant concerns as to whether the appellant was able to participate effectively in the hearing. HHJ upheld the appeal on this ground alone.

Ground 2: The Judge erred in failing to apply PD12J of the FPR 2010 in particular the correct definition of coercive and controlling behaviour and domestic abuse;

Ground 3: The Judge failed to apply leading case law of H-N and Others and failed to stand back and consider whether there was a pattern of coercive and controlling behaviour;

Ground 4: The Judge minimised the findings and the evidence that amounted to domestic abuse and CCB instead referring to threats of harm and verbal abuse as "not ideally worded" and failed to address the impact of such abuse on M and the children;

Ground 5: The Judge failed to address that the children are victims of domestic abuse pursuant to Section 3 of the Domestic Abuse Act 2021.

The judge did not follow the approach suggested in Re H-N, and instead approached the allegations one at a time, without standing back to consider the overall picture and the nature of the behaviour as a whole. She did make some significant findings against the father which should have led her to consider whether or not his behaviour was coercive or controlling. The judge did not then go on to consider whether this was a pattern of behaviour, and whether given those findings the respondent was more likely to have abused the appellant in similar ways as she alleged. The judge did not consider the impact of the admitted verbal abuse upon the children even though it was accepted to be in their presence, contrary to PD12J.

The Judge did not satisfactorily deal with text messages sent by the father. These were messages that the judge should have considered in relation to the exercise of standing back and looking at and for a pattern of behaviour. Similarly, there were admissions made in evidence by the respondent which were relevant, but which were not considered and should have been considered in the context of the respondent's behaviour as a whole, as she was required to do following the decision in Re H-N. In not considering this behaviour the Judge fell into error and the appeal was upheld under grounds 2,3,4, and 5.

Ground 6: The Judge was wrong in making findings which did not reflect the oral evidence given by the father and without taking into account all of the evidence in the round and Ground 7: The Judge failed to give adequate reasons for the findings made.

Many of the matters already referred to by HHJ Levey fell under these grounds. HHJ Levey went on to give his conclusions providing examples of the Judge recalling the evidence wrongly in error. For example, the judge made no findings of verbal abuse by the respondent when as already noted he accepted that he had called the appellant words such as "slut", "bitch", "lazy" and "fat".

Ground 8: The Judge finding that M breached the child arrangements order is wrong. None of the allegations in the schedule were put to the appellant in cross examination, and so she did not respond to them. It is a procedural irregularity to make findings to the criminal standard with the allegations not having been put in cross examination. This was not fair process. The findings cannot stand. The appeal was allowed. The matter was listed for directions before a Circuit Judge.