RP, Re

MRS JUSTICE THEIS DBE: Introduction 1 I am giving this extempore judgment even though this is a case with a complex background as I am extremely conscious of the fact this is an application made in May 2022, it is now November 2023. The inherent uncertainty regarding the application has been on the mind of both applicants since then, in what has clearly been difficult circumstances for them. 2 Before I turn to the background and detail of the application, I would like to express the court’s gratitude to Mr Powell and his instructing solicitors, who have represented the applicants in this case pro bono. The court, as well as the applicants, have benefitted enormously from the very great care they have each given to this case, and the assiduous way they have assisted the applicants and the court to be able to navigate the difficult position the applicants found themselves in. I express the court’s gratitude for them taking on this case in the way that they have. 3 This is an application for a parental order in relation to RP, who was born in February 2022. The applicants, SR and DB, seek a parental order to be able to secure their legal parental relationship with this young child. The respondent to the application is LM, the gestational surrogate who carried RP as a result of the surrogacy arrangement entered into between the parties. The court directed that RP was joined as a party to these proceedings on 13 October 2023. As a consequence the court has had the benefit of him being represented separately in these proceedings through his children’s guardian, Ms Demery, and had the benefit of the detailed written and oral submissions by Ms Holland on behalf of RP. 4 The court has been able to read and consider the extensive bundle of documents submitted. The case has had judicial continuity since the matter first came in, as an urgent application on 5 April 2022 then within Children Act proceedings. This was to secure the position at that early stage prior to the parental order application being issued in May 2022. As a result, the court has a detailed knowledge in relation to this case and has also had the benefit of being able to read and consider nine statements from SR and one from DB, mapping out the various stages that have taken place during the course of these proceedings. 5 I have also had the benefit of being able to read the detailed parental order report written last year by Ms Demery following her home visit to the family on 28 September 2022, supplemented by her continued contact with the applicants and the submissions on her behalf today. 6 Having had the opportunity of being able to consider that material as well as the detailed skeleton arguments, it is only necessary to set out very briefly the background to this matter before turning to consider the criteria under section 54 Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’). Relevant background 7 The applicants met in 2012 in Europe. They married in January 2017 and their family home is in the home counties. Understandably they wanted to have a family of their own. They experienced difficulties in conceiving, took specialist fertility advice and underwent a number of IVF procedures; not only in this jurisdiction, but also in various European countries before they reached the position where they recognised that surrogacy may be the only option for them to have a child of their own. 8 In the statement dated 5 August 2022 that background is set out in more detail, including the careful process the applicants undertook in being able to engage an agency to be able to undertake a surrogacy process. They decided, following their enquiries, to engage an organisation based in Ukraine. They entered into a surrogacy arrangement with them in 2019. They were introduced, although did not meet, the respondent surrogate as being somebody who would carry the child. They entered into an agreement, it was signed by both parties, and RP was conceived following the embryo transfer. 9 RP arrived a little bit earlier than everybody expected in February 2022 and the applicants arrived very soon after that. He was discharged into their care on 21 February 2022 and, if events had gone according to plan, there would have been the appointment for the birth certificate two or three days later, there would have then been the usual steps that were taken to enable the relevant documents to be signed and then for the necessary immigration procedures to be undertaken and the family would have come back to this jurisdiction. 10 All of those steps changed days later with the Russian invasion of Ukraine on 24 February 2022. The consequence of that is that they were not able to secure the birth certificate. The relevant authorities were no longer operating. The surrogacy agency was not operating. They were not able to go to the offices to be able to see them. They maintained a line of communication with the agency, predominantly through Ms U, but they have had no direct way of communicating with the respondent surrogate. 11 As described in their statement, they were able to leave Ukraine relatively quickly having secured emergency travel documentation and arrived back in this jurisdiction on 8 March 2022. Section 54 12 It is against that background that the court is considering whether the criteria under section 54 are met. I can deal with the first six criteria in the HFEA 2008 relatively briefly because they are clearly established by the evidence. 13 Firstly, the court must be satisfied that there is evidence of a biological connection between at least one of the applicants and RP. Clearly, the DNA test results, dated 11 April 2022, confirm that genetic connection. Secondly, the status of the applicants’ relationship. They married in January 2017. Thirdly, the application was issued well within six months of RP’s birth on 24 May 2022. Fourthly, he had his home with the applicants at the time when the application was issued in May 2022, because they were back in this jurisdiction, and very much still has his home with the applicants at the time when the court is considering making a parental order. 14 The fifth matter relates to domicile. Both of the applicants were born in other jurisdictions. SR was born in an African country 1973 and DB was born in a European country in 1976. What is said, particularly in relation to SR, is that she has made this jurisdiction her domicile of choice. Her fifth statement sets out the evidence she relies upon. In summary, she came to this jurisdiction in her early childhood in the early 1980s, completed her education here, has worked here, has paid taxes here, became a British citizen in 2000 and has no intention of returning back to live in her country of birth. All her assets are here and all the evidence points to her family life being based and secured here. It is where they plan to bring their child up. I have to be satisfied as to whether she has formed an intention to permanently and indefinitely reside in this jurisdiction and I am satisfied that the evidence demonstrates that. 15 The sixth matter I must be satisfied about is whether both of the applicants are over the age of 18 years of age. They are both over 18 years of age. 16 The remaining two matters under section 54 need a little bit more consideration. The first matter is the question of consent. I have to consider whether I am satisfied that the respondent surrogate has given her consent to this court making a parental order and whether she has given that consent freely and with full understanding in relation to what is involved. If not, what is said is that, if I am not satisfied on the information I have got, I can be satisfied under section 54(7) that the respondent surrogate is incapable of being found by the applicants now. 17 The next matter I have to consider is the question in relation to payments. Under s54(8) I need to consider whether the court should authorise any payments that have been made other than for expenses reasonably incurred. 18 In relation to the issue of consent, this is an issue that has dominated these proceedings since they were issued. The difficulty is because there was no independent communication with the respondent surrogate, although if there had not been the Russian invasion that may have taken place. The fact is it has not and the applicants have been entirely reliant on the agency to be able to provide the necessary information to the court and to the applicants in relation to those matters. 19 The issue of consent has been partly complicated by the fact that there is a sum outstanding of €10,000 in relation to the agreement that was entered into. The agreement was that the last payment would have been paid on receipt by the applicants of the birth certificate, but because of the circumstances and the events that overtook, that did not happen. 20 One of the matters raised is whether the court can consider the consent that has been provided by way of video first on 16 February 2023, and then by photograph on 24 February 2023, which are documents that, on the face of them, are in the correct form. They have been notarised so they comply with the relevant rule requirements in relation to consent. On the face of those documents it is on that basis that consent is said to have been given freely and with full understanding in relation to what is involved. 21 However, on the information the court has, there are a number of question marks over that consent. I have to look at that document in the context of the framework of the Act, namely I have to be satisfied that the consent has been given freely and with full understanding in relation as to what is involved and unconditionally. As was made clear in the recent Court of Appeal decision in Re C (Surrogacy: Consent) [2023] EWCA Civ 16, consent is one of the criteria that is the bedrock of the parental order legal framework. It is one of the pillars of the statute and, whilst there is no criticism in relation to the steps the applicants have tried to take, I cannot ignore, it seems to me, the surrounding circumstances in which the consent has been provided. 22 Whilst the communication has been taking place between the parties in relation to the issue of consent and payments, in October of last year Ms U stated that the respondent surrogate, and I quote from paragraph 11 of the statement at page 388 of the bundle, “will put her signature on the necessary documents” and that she “agrees and at the moment is ready to submit the relevant application for the registration of the child’s birth, as well as to submit the necessary documents for the children to obtain the citizenship of Great Britain and the necessary documents for the court process for the purpose of obtaining a parental order”. However, she goes on, that is Ms U, to state: “A delay in payment on your part leads to non-payment to the surrogate mother. Therefore, it will be possible for her to sign the necessary documents after making the necessary payments to her”. 23 That was in October 2022 and, whilst it is right, between 27 and 29 December 2022, there were communications between the applicants and Ms U, where she wanted to know what documents needed to be signed by the respondent, the copy of the A101A form was sent and there were a number of key questions asked by Ms U in relation to that document. For example, whether it needed to be notarised, how to send the signed document and also that the document will be translated into Ukrainian as the surrogate must understand what exactly she signs. So, on the face of it, in December 2022, Ms U recognised the importance of that document and of the need for the respondent surrogate to be able to understand it. 24 The communication in January 2023, Ms U states in an email that she will be able to “coordinate the document with the notary and ask your surrogate to sign the document” and to keep the applicants updated in relation to the process. 25 On 13 February 2023, a message is sent via WhatsApp to the applicants from Ms U, which states as follows: “I have to resolve the issue with you for the last payment by the contract, because I promised to surrogate mother do all payments if she will do the documents. Can we discuss please how we can do this better way for all? Thank you.” 26 It was three days after that that the video was sent of the documents that it is said had been signed by the respondent on 2 February 2023. They appear both in the Ukrainian language and translated to the English language, with an Apostille certificate and appear, on the face of it, to have been notarised. According to the documents, they were signed in Kharkiv, but give no further information or context in relation to how they were signed. 27 Then, on 24 February 2023, they were sent by photograph and that is the information that the court has in the bundle. There was then further communication between the parties in relation to having a hard copy of the documents and the outstanding payment. In summary, what happened is that it was said that a person called Ms K in this jurisdiction had possession of the signed documents, but there were then message exchanges in May 2023 whereby it was confirmed that the documents had arrived in the UK and that Ms K will liaise with the applicants. When the applicants tried to make arrangements to meet Ms K in a public space to be able to pay the sum of money and for the documents to be handed over, that request was refused. So, at the present time, there is no hard copy of the documents and the final payment has not been made. 28 In her written submissions, Ms Holland on behalf of RP, sets out her concerns in relation to the documents and the issue of consent and, whilst not doubting that the written consent on the face of it is in the right form, she submits because of the circumstances and the lack of information the court has about the circumstances, that the court cannot be satisfied that the requirements are met. 29 Mr Powell submits otherwise and says that the court should be very careful not to speculate about matters that may or may not have happened at the time that the consent was signed and the court should accept them at face value. 30 I have to go back to the statutory framework of having to be satisfied that the consent has been given freely and with full understanding in relation to what is involved to the court making a parental order as set out in s 54(6). In the light of the chronology, in particular what was said in October 2022 in relation to the consent, the payments, the need for payments to the surrogate followed by that happened in December and then the signing of the document. If that is correct, on 2 February 2023, but then still on 13 February 2023, prior to the document being sent, the request and confirmation from Ms U is that she had made a promise to the respondent surrogate in relation to payment of the money. So that, in my mind, leaves a very real question for the court. I consider the court is entitled to draw an inference from that surrounding material, as to whether in fact this consent has been given freely and with full understanding in relation to what is involved. As Mr Powell said, the information the court has not got is any information directly from the surrogate. 31 So, for those very brief reasons, I do not consider that the document the court has got meets the requirements of the legal framework the court needs to be satisfied in relation to consent. 32 Turning now to the applicant’s secondary position, as to whether in fact the court can be satisfied that the surrogate is incapable of being found by the applicants. The court, of course, is guided by the framework set out in Re D and L (Surrogacy) [2012] EWHC 2631 by Baker J (as he then was) and the importance of the court carefully scrutinising the various steps that have been taken, whether those are all reasonable steps that have been taken to locate the respondent surrogate. I agree with what is said by Knowles J in Re QR (Parental Order: Dispensing with Consent: Proportionality) [2023] EWHC 3196 (Fam) that it has to be reasonable and proportionate. 33 In paragraphs 38 and 39 of Mr Powell’s position statement, he sets out the very careful steps that have been taken by the applicants to try and locate independently the respondent surrogate, including the commissioning of a cyber report that was done soon after they made the application to this court in April 2022. Also, the communication they sought to make through Facebook, which was not responded to. They have maintained regular contact with Ms U and sent a number of messages to her seeking to have information about the whereabouts of the respondent, but nothing has been forthcoming. 34 There has been investigation in relation to the use of postal services and also the instruction of a Ukrainian lawyer, who has advised that an option would be to be able to interrogate various databases. The applicants have also considered whether there should be directions and requests for consular assistance to the Ukrainian Embassy or from any other embassies that surround Ukraine, in case the respondent had left that country. As Mr Powell persuasively brings the threads together in paragraph 14, he submits that the steps the applicants have taken in this case indicate that they have taken all reasonable and proportionate steps to be able to find the surrogate and there are no further steps that can be taken. He submits this needs to be looked at in the context of the legal framework in Ukraine, namely that, as a matter of law, on RP’s birth the applicants were recognised as his legal parents. 35 The consequences of the Russian invasion in February 2022 has meant the attempts to establish contact that could have been taken in other circumstances have not been able to be taken in these circumstances. The applicants have acted entirely with good faith in relation to the steps that they have taken. So, Mr Powell submits there is nothing further that can be done and in the particular and unique circumstances of this case the court can find that the surrogate is incapable of being found by the applicants now. 36 That position is supported by Ms Holland in her position statement. She has analysed the evidence that there is, in the same way as Mr Powell has, and has reached the same conclusion. 37 I accept those submissions. In the particular circumstances of this case and considering the very careful steps that have been taken, there are no further steps that can be taken reasonably or proportionately by the applicants to be able to locate the respondent surrogate. Over a long period of time the agency have not been able to provide any relevant information. Making direct approaches to try and find the respondent surrogate in circumstances where the country is still at war is not an option as there is no information known in relation to the respondent surrogate’s particular circumstances. I am satisfied on the facts of this case that requirement is met. 38 This leaves briefly, but importantly, to deal with the question of payments. The total that should have been paid under the agreement that was entered into between the parties was the sum of €67,252. The applicants have paid the sum of €57,252. The last payment of €10,000 has not been paid for the reasons set out in the evidence. It is still outstanding. The birth certificate has not been able to be provided and it is clear from the information the court has seen the relationship between the applicants and the agency has broken down, due to the enormous difficulties in getting them to be able to provide details in relation to the respondent and secure the necessary consent, also the uncertainty that still remains in relation to their remaining embryos. 39 In considering whether I should authorise any element of those payments which do not relate to expenses reasonably incurred, the court has no information at all about how much, if any, payments were made to the respondent surrogate. There is some suggestion in the message communications between the parties that the 10,000 outstanding is some or part of the monies that would have been paid to her, but there is no information in any of the agreements that the court has seen that indicate how and when such payments would have been paid to the surrogate. 40 The payments that have been made in the wider context that this court is aware of are not significantly different than payments that have been made in similar arrangements, albeit in arrangements that have not resulted in the difficulties that have occurred in this case. There is no suggestion that the applicants have done other than act in good faith and there is absolutely no suggestion that the applicants have sought to get round the authorities at all. They have complied with all directions that have been made by the court and any other public body. 41 So, for those very brief reasons, in the particular circumstances of this case, although there remain some unanswered questions in relation to the payments and what would have been paid to the surrogate, I am satisfied in the circumstances of this case that the court should authorise any element of those payments that are otherwise than for expenses reasonably incurred. Welfare 42 All the criteria under section 54 are met. This leaves me importantly to consider whether making this order will meet RP’s lifelong welfare needs under s 1 Adoption and Children Act 2002. In her report Ms Demery makes a very clear recommendation, subject to the court being satisfied that the section 54 criteria are met, that the parental order should be made. She sets out, following her enquiries, the very strong welfare considerations there are compelling this court to make a parental order. She sets out her assessment in relation to the applicants’ sensitivity in relation to ensuring that RP has all the information that is necessary in relation to his particular unique background and circumstances. She makes it clear from her observations, when she saw RP in the care of the applicants, that he was a happy and relaxed child in his home environment and the applicants, who clearly adore him and with whom he is forming his primary attachments, underpin the recommendation that she makes. 43 I am satisfied that by making this order it will secure the legal parental relationship between both of the applicants and RP in a lifelong way and that by doing that, that will meet his lifelong welfare needs and so, for those reasons, I have very great pleasure in making a parental order. __________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge.