[2025] EWHC 927 (Fam)

What follows is a summary of the submissions on welfare made by Mr Powell on behalf of Mr and Mrs K.

Mr Powell drew attention to the entirely positive observations of the parental order reporter, Ms X, who described B as being a “much wanted and much loved and cherished child” whose needs were being met by Mr and Mrs K. In compliance with the court’s directions on 28 February 2025, the court now had statements which described the detailed arrangements made for B’s care should either of the applicants die or become incapacitated. Mr and Mrs K intended that Mr and Mrs Q would only take over B’s care in the event that both of them died. If one of them died, the other would continue to care for B (assuming they did not lack capacity) and would be supported and assisted by a nanny, with B attending boarding school in the longer term. The Wills of both Mr and Mrs K provided for B to be the beneficiary of a discretionary trust following the death of the surviving parent. In the event that one of the applicants became incapacitated, the other would continue to care for B with the support of the nanny. Both applicants had executed Lasting Powers of Attorney in respect of property and finance and health and well-being.

Mr and Mrs K had concluded that a special guardianship order would be the most appropriate order promoting B’s welfare in the event of the death or incapacity of either or both of them and if either or both of them were unable to care for him. Such an order would not sever the legal relationship between the applicants and B but would clothe the special guardians with an enhanced level of parental responsibility whilst maintaining B’s lifelong relationship with Mr and Mrs K if a parental order was made. Mr Powell invited the court to record in an order, separate to the parental order, recitals setting out (a) Mr and Mrs K’s nomination of Mr and Mrs Q as special guardians for B in the event of the death or incapacity of both (or in the event of the death of one of the applicants and the incapacity of the other) and (b) Mr and Mrs K’s nomination of Ms P as an alternative special guardian should Mr and Mrs Q be unable to act. This order would permit Mr and Mrs K to disclose a copy of it to their nominated prospective special guardians and permit this order to be annexed to any application for a special guardianship or child arrangements order made by either Mr and Mrs Q or Ms P.

In the light of the above arrangements, Mr Powell submitted that the court had a comprehensive plan which would be kept under review as B got older and his needs changed. The circumstances of this case were distinguishable from Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) in which one of the intended parents was reported to be in their late 60s whilst the other was in their 70s. Finally, it was desirable for children born via surrogacy to have the optimal legal relationship with both of their intended parents, usually by way of a parental order or an adoption order. Those orders would confer important rights and status to B in recognising him as the legal child of Mr and Mrs K. The absence of a parental order would leave Mr and Mrs Z as B’s legal parents in this jurisdiction in circumstances where they had no desire to exercise parental responsibility for him.