AB (a child), Re
[2024] EWHC 586 (Fam)
X & Anor v Z & Ors
28 March 2023
[2023] EWFC 41
Family Court
Two parents from the US had a baby via a surrogate in the UK. To legally become the parents, they needed to prove they lived in the UK permanently. Even though they sometimes lived elsewhere and still paid taxes in the US, a judge decided they did live in the UK and gave them legal parenthood of their child.
Key Facts
- •Application for a parental order in relation to B (19 months old).
- •Applicants X and Y (US citizens) seek legal parental relationship with B.
- •Respondent Z is the gestational surrogate.
- •Surrogacy arrangement in UK on 6 November 2020.
- •All criteria under s 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008) are met except domicile.
- •Applicants need to establish domicile of choice in the UK in November 2021 and March 2023.
- •Applicants have lived in the UK since late February 2020, with a 12-month lease starting December 2021.
- •Applicants travelled extensively during this period.
- •Applicants were in Hawaii during the hearing.
- •B remains in applicants' full-time care.
- •Applicants' evidence for domicile includes: rented accommodation, UK companies, NHS numbers, bank accounts, social connections, and B's birth and UK passport.
- •Applicants remain registered to pay tax in the US.
- •The Children's Guardian supports the parental order.
- •Respondent Z did not attend the hearing.
Legal Principles
Criteria for parental orders under s 54 HFEA 2008.
Human Fertilisation and Embryology Act 2008
Welfare considerations under s 1 Adoption and Children Act 2002 are relevant only after s 54 HFEA 2008 criteria are met.
Adoption and Children Act 2002
Principles of domicile, including acquisition and abandonment of domicile of choice.
Y v Z [2017] EWFC 60, Z and B v C (Parental Order: domicile) [2012] 2 FLR 797, U v J [2017] EWHC 449 (Fam), Re G (Surrogacy: Foreign Domicile) [2008] 1 FLR 1047, Re G and M [2014] EWHC 1561 (Fam)
Burden of proof for domicile lies on the applicants; standard of proof is balance of probabilities.
Outcomes
Parental order granted in favour of applicants X and Y.
Domicile of choice established for at least one applicant at relevant times; strong welfare considerations for B.