Case No. EWFC-119

20The court is extremely grateful for the very helpful and full skeleton arguments which have been provided, not only by Ms Cantor-Freedman on behalf of the applicants, but also by Ms Stanley on behalf of the child. The legal framework within which the court is considering this application is section 54 of the Human Fertilisation and Embryology Act 2008.If the criteria set out in that Act are met the court needs to consider whether making a parental order will meet the life-long welfare needs of Z, having regard to the matters set out in section 1 of the Adoption and Children Act 2002.21In relation to the section 54 criteria, there is no issue that sections 54(1), (3), (4), (5), (6) and (8) are met. I can deal with them relatively briefly. The evidence establishes that Z was carried by the respondent surrogate and the biological connection between Z and one of the applicants, namely Mr W, as a result of the DNA test which is in the court bundle. 22Secondly, the court needs to be satisfied that Z had his home with the applicants at the time when the application was issued, and at the time when the court is considering making the order. From the history I have just set out, it is clear Z has had his home largely, save for the period between November 2020 and January 2021, with either one of the applicants or both of them.23The court, in considering whether Z had his home with the applicants at the time when the application was issued, needs to take a wide and purposeful construction of this provision. It is quite clear from the information that the court has that the applicants and Z's Article 8 rights to family life had been established. They were having to navigate the difficulties that had been caused as a result of the Covid restrictions in being able to manage, including Mr W being able to continue with his work and the delays that had taken place regarding Z's birth certificate being produced in Georgia and, also, the delays in the subsequent passport application being processed. 24When considering the evidence as a whole, Z had his home with the applicants at the time when the application was issued, whether that is taken as August 2020, when he was in Georgia, or in January 2021, when he remained in Georgia. When one of the applicants was not physically present with Z, they remained in very regular contact with Z and had responsibility in relation to the care which was being provided for him. I am therefore satisfied in the circumstances of this case that criteria is met.25The court also needs to be satisfied that both of the applicants are over eighteen years of age, and they are. Mr W has a domicile of origin in Georgia. What is submitted on his behalf is that he now has a domicile of choice in this jurisdiction. In considering whether that is established, the court needs to consider whether what has been demonstrated is an intention to permanently and indefinitely reside in this jurisdiction. 26Whilst it is right Mr W does still have contact and connections with Georgia, namely some of his family are still there and he chose to be part of a surrogacy arrangement in Georgia. However, from the evidence the court has, in particular what is set out in the second joint statement dated 5 March, he has made his life here. He set out the detail in relation to the education he has undertaken here, the work he has done here following completing his Master's, and also the purchase of properties here, not only the property he lives in at the moment, but other property as well. He pays, through his employment, taxes here and his pension is based here. He became a British citizen in September 2010, and he set out at the end of his statement dated 5 March 2021 as follows,"I would like to say that I spent the best years of my life in the United Kingdom. I have a strong emotional attachment to the country, which gave me a good education, amazing career, and investment opportunities. Endless possibilities to meet diverse and interesting people and make friends. With Z growing up in the United Kingdom, my attachment to this country will become stronger over time. Ultimately, it is my wish and desire to spend the last days of my life in this country which I love so much, and which gave me so much to look for, for all these years."27Having considered the evidence I am satisfied he has a domicile of choice in this jurisdiction. The evidence demonstrates he has formed an intention to permanently and indefinitely reside here. This is where his family life will be, both in the short and long term.28The next requirement concerns the question of consent. The court has notarised written consents from the respondent surrogate mother dated 7 August 2020. It was identified by Ms Stanley that the English version of the Form A101A and the translated version in Georgian had a difference; namely that Ms X's name was added into the bottom part of the consent in the Georgian version, which was not in the English version.29The court was able to deal with that when Mr W gave oral evidence to the court today, which I accept, where he was able to interpret from the Georgian version what it said. It confirmed exactly the same as in the English version, but with the additional name of Ms X. I am satisfied that that is what the Georgian document says, and there is no need for any further delay for an English translation. I am fortified in that by a number of other parts of the evidence. 30Firstly, the C52, which was translated into Georgian, is the acknowledgment of service of the application and was signed by the respondent surrogate mother on 21 January 2021. That has both applicants in that application, and post-dates the consent of the 7 August 2020. Secondly, the reference in Ms Roddy's report at paragraph 51-53 of her conversation with the respondent surrogate on 18 January 2021, where she made it quite clear she had no objection or any observations to make as to whether, in fact, the consent was to the applicants jointly having a parental order or a sole application. I am therefore satisfied that that consent can be relied upon by the court.31Mr W has forwarded emails to the court today to demonstrate that the respondent surrogate is aware of the hearing today. There is nothing to suggest that the consent recorded in the documents in August 2020 and January 2021 has changed in any way. I am therefore satisfied the respondent surrogate consents to this court making a parental order. 32Turning briefly then to the question of payment. This was a commercial surrogacy arrangement which was entered into in a jurisdiction where such arrangements are permitted. It has been helpfully set out in the applicant's first statement. The payments that were made to the respondent surrogate during the period of the pregnancy and up until February 2020 totals £15,850. Secondly, payments that were made to the agency total £17,460 plus a figure which seems to be in dollars of $2,500. 33It is clear that an element of these payments would be other than for expenses reasonably incurred. In considering whether the court should authorise those payments, the court needs to consider the circumstances in which the surrogacy arrangement was entered into, the level of payments made, whether the applicants acted in good faith or not and whether there is any suggestion that they sought to get around the authorities.34The level of payments which have been made are not significantly different than levels of payments that have been authorised by this court in similar surrogacy arrangements. There is nothing to suggest that this arrangement was other than a voluntary arrangement. The applicants have acted in good faith, and there is no suggestion they have sought to get round the authorities. In the circumstances in this case the court can authorise that element of those payments pursuant to s54(8).35Turning to the issue in relation to section 54(2)(c), as to whether the applicants have an ‘enduring family relationship’. F v M [2016] EWHC 1594 Russell J confirms this is a question of fact for the court. As has been set out in the extracts the court has been referred to from that judgment, namely paragraphs 18, 27-28 and 29, the references in that decision to the debate that took place in Parliament prior to the HFEA 2008. For example, in paragraph 27 in relation to an issue raised, namely "There is absolutely no necessity for a couple, whether same-sex or different-sex, to be in an intimate relationship to get the benefit of many of the clauses that we have discussed." The Minister of State responded in the way set out at paragraph 28 of the judgment, including this critical passage:"The Government are prepared to continue with the arrangement whereby the family division of the High Court would take the decisions on what made for an enduring relationship that was suitable and in the best interests of the child for a parental order to be made."As Russell J observed at paragraph 29, "It is clear therefore that Parliament intended that this court is to decide whether a relationship is or is not an enduring family relationship."36It is right that I have been referred to other cases such as Re X [2015] 1 FLR 349, where it can include situations where parties are living in separate households, and where parents have been divorced and therefore, are unlikely to be in a continuing sexual relationship. Also, the decision of Re A-B [2016] 2 FLR 466, where the parties were separated in acrimonious circumstances which resulted in subsequent Family Law Act injunctions.37It is a question of fact. In this case, the court is able to conclude that the applicants’ relationship is one where it is an enduring family relationship for a number of reasons:1.The three statements filed by the applicants demonstrate the level of commitment they have to each other and to their wish to be able to continue with the arrangement they agreed prior to the surrogacy arrangement being entered into, namely, to have a child to be able to bring up together within their relationship. 2.As a matter of fact, Z has had his home together with the applicants, albeit not always physically in the same jurisdiction, since his birth. He has remained in their care.3.The parental order reporters, Ms Roddy and Ms Doyle, have been able to undertake a number of detailed interviews with the applicants and at no stage in their interviews have they noted any suggestion other than the relationship the applicants have is as they have described. 38Ms Cantor-Freedman refers in her skeleton argument to Ms Doyle's report where having noted a bond between them during her home visit she states:"Having visited the home and observed the dynamic between Z, Ms X, Mr W and A [Z’s nanny], it appeared that Z was comfortable with all adults who clearly adore him."Later in her report:"From my observations of the evidence before the Court, they are in an enduring family relationship in which as platonic friends, they have formed a partnership to commission Z's conception and raise him together."39I am satisfied in the circumstances of this case on the evidence the court has this criteria is met.40Turning finally to consider the issue in relation to public policy. As Ms Stanley sets out in her skeleton argument, in the case of J v G [2014] 1 FLR 297, I set out at paragraph 21 as follows, "It is therefore necessary for the court to consider the public policy matters as identified by Hedley J in Re X and Y and Re S, but with the understanding that the court is only likely to refuse parental orders in the clearest case of the abuse of public policy where otherwise the child's welfare requires the order to be made."41Ms Stanley, supported by Ms Cantor-Freedman, submits that threshold is not met in this case. Whilst there was a concern at the early stages of these proceedings as to whether there had been transparency and frankness with the Georgian authorities, it being recognised Georgian law does not permit single applicants to have children by surrogacy. The applicants' behaviour, however, has been consistent with their intention and their arrangement of wanting to be able to have a child together, to be able to bring that child up, albeit within a platonic relationship setting. This has been demonstrated by the applicants’ commitment, in particular by Ms X, to Z in providing his care, not only in Georgia but since their arrival here in this jurisdiction.42There has been extensive contact with the parental order reporters over a period of time including, importantly, the home visit by Ms Doyle on 28 May 2021. There is nothing to suggest there is any concern regarding the applicants’ relationship, their relationship with Z or anything to suggest the information which was provided to the Georgian authorities should cause the court any concern. 43Whilst it is right there is some evidence that lacks clarity, for example, in response to Ms Roddy Ms X said she had not considered whether she could have a biological connection to the child they wanted to bring up. She also set out the reasons as to why she gave the London address in the surrogacy arrangement. Further, the evidence indicates that Mr W has been the main point of contact for the agency, which may be considered unusual bearing in mind that Ms X remained living in Georgia prior to Z's birth.44There is nothing to suggest that this information was given to deceive the authorities in Georgia and the events since Z's birth, has confirmed the arrangement the parties have entered into by the demonstrable evidence of their commitment they both have to the agreement they reached, namely, to have a child and bring him up together.