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AB & Anor v GH [2016] EWHC 2063 (Fam)

Theis J considers the issue of domicile of choice in the context of section 54 HFEA 2008 in relation to applicants whose domicile of origin was Germany.

AB and CD applied for parental orders in respect of E and F, aged nearly 10 months. GH, the respondent, was the gestational surrogate who carried E and F to birth pursuant to an arrangement between the parties entered into via an Illinois surrogacy agency, where such arrangements are permitted.

Of the seven criteria at section 54 HFEA 2008, the court found six were plainly met on the evidence before it. The applicants' domicile, however, required further analysis in light of the requirement that at least one of them be domiciled in this jurisdiction at the time of application and final order. The applicants' domicile of origin was Germany. It was submitted on their behalf that CD had acquired a domicile of choice in this jurisdiction and, although AD and CD had not lived here since 2013, her domicile of choice had been retained.

Theis J summarised the key principles at paragraphs 15-19, referring to her decisions in C and C v D and D [2014] EWHC 1307 and AB v SA [2013] EWHC 426, and to the judgment of Mummery LJ in Agulum and Anr v Cyganik [2006] EWCA Civ 129.

Applying these principles to the facts of this case, Theis J concluded that CD retained her domicile of choice in this jurisdiction. In particular:

Considering the children's lifelong welfare interests, the court proceeded to make parental orders in the application.

Summary by Anita Rao, barrister, Field Court Chambers

This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Neutral Citation Number: [2016] EWHC 2063 (Fam)

Sitting at the Royal Courts of Justice

Royal Courts of Justice,
London, WC2A 2LL.

Monday, 7th March 2016.



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GH Respondent
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Ms NATALIE GAMBLE (from Natalie Gamble Associates) appeared for the Applicants.
The Respondent was not represented or present.
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Monday, 7th March 2016.

01. This is an application by AB and CD for Parental Orders in relation to two children, E and F, who were born in 2015 so very nearly 10 months of age.  The Respondent to the application is GH, the gestational surrogate who carried the children until their birth following an arrangement entered into between the parties through an agency called Conceiveabilities. This is a surrogacy agency based in Illinois, where commercial surrogacy arrangements are permitted. 

02.  I have had the benefit in this case of having an extremely comprehensive bundle of documents, as well as statements from the applicants, a detailed Skeleton Argument and an extremely comprehensive Parental Order report from Mr McGavin.  He is the Parental Order Reporter who met both the applicants and the children on 24th February 2016. 

03.  It is clear from the statements and the information the Court has that for the applicants, who have been together since school, their wish to be able to have a family of their own has been a difficult and at times extraordinarily emotional journey.  They have undergone a number of IVF procedures, which have sadly been unsuccessful.  As a result of advice they were given in relation to surrogacy arrangements, they got in contact with the surrogacy agency Conceiveabilities, who in turn put them in contact with the respondent. It is clear from what I have read they very quickly formed a strong bond in relation to the arrangement they were entering into. That strong bond has continued, not only during the pregnancy but also after E and Fs birth, because they have remained in regular contact. GH will remain a part of E and Fs life well after this Court has made the orders that are being sought.

04.  In relation to this application, the Court has to be satisfied if it is going to make a Parental Order in relation to two matters; firstly, that the requirements under Section 54 Human Fertilisation and Embryology Act 2008 are met, and secondly, if they are, that it is in E and F's lifelong welfare interests for the Court to make such an Order.  As I have said, the Court has the benefit of an enormously helpful and comprehensive Skeleton Argument by Ms Gamble on behalf of the applicants, and she and they will recognise much of that document in this judgment. 

05.  Of the seven criteria that need to be satisfied under section 54, six I can take relatively quickly.  The seventh criteria, the position in relation to domicile, I shall have to deal with in more detail.

06. Taking the non-controversial matters first. Firstly, the Court has to be satisfied that there is a biological connection between the Applicants and E and F and that they were carried by a woman who is not one of the Applicants.  The evidence is the statement from Dr William Schoolcraft dated 7th May 2015, where he confirms he transferred embryos containing the gametes of both the applicants to GH, and the consequent pregnancy resulted in E and F's birth.

07. The second criteria is the status of the applicants relationship.  They were married in the United Kingdom, in London.

08. The next matter is their application for a Parental Order should be made within six months of E and F's birth.  It was very promptly issued, within a matter of weeks, in July 2015, so well within the six-month period.

09. The fourth matter is the Court has to be satisfied that E and F's home is with the Applicants when they issued their application, which was in July 2015, and at the time when the Court is considering making an order.  E and F have been in the Applicants' care since two weeks after their birth, when they were discharged from hospital and have been in their full-time care since then. They clearly had their home with the Applicants when they issued the application and very obviously have their home with the Applicants now,  the Court has the enormous benefit of E and F being in Court for this hearing.

10. The fifth matter concerns GH's consent to the Court making a parental order.  The Court has to be satisfied that GH, the Respondent, consented freely, with full understanding and unconditionally to the Court making a Parental Order.  There are a number of documents that clearly demonstrate that is the case. She signed the Form A101A on 22nd September 2015.  That was four months after the birth.  It is a notarised document, as required by the Rules and clearly sets out that she agrees to the Court making a Parental Order.  That document is supported by a number of other parts of the evidence; firstly, the completion by her of the Acknowledgement of Service on  the same day, 22nd September, again indicating that she agreed to the making of a Parental Order; her cooperation within the proceedings that took place soon after the birth in Minnesota whereby the Court made a Parentage Order on 5th June 2015; and her continued involvement and cooperation within these proceedings, most recently acknowledging service of notice of this hearing which she has done in the emails set out in the bundle.  I am entirely satisfied that GH consents to this Court making a Parental Order, and that she has done so freely and with full understanding as to what is involved.

11. The final non-controversial matter relates to payments. Pursuant to s54 (8) this Court has the discretion to authorise payments other than for expenses reasonably incurred.  The headline figures from the detailed breakdown in the papers that the Court needs to consider are the compensation payments made to GH as a result of the arrangement entered into.  She was paid a total of $52,523. After expenses of just over $9,500 the compensation figure left is $42,993, which is about £29,500.  Secondly, there is an agency fee paid to Conceiveabilities of $21,350.  In considering whether the Court should authorise those payments it needs firstly to look at the level of those payments and consider whether they are or are not disproportionate to reasonable expenses, then to look at the good faith of the applicants and their cooperation with the authorities. The evidence demonstrates the payments made to GH and the payments to the agency fee are well within the figures this Court has seen in similar cases. They are paid through an arrangement that is permitted in the jurisdiction in which it is made.

12. It is clear GH was somebody who entered into this arrangement freely and with full understanding.  She set out her own family reasons why she did so, and she has demonstrated by the actions that she has taken that she has been entirely cooperative with the arrangement. 

13. The Applicants have obviously acted in good faith. They have carefully thought out this arrangement, they have ensured at each stage that all the necessary procedures have been complied with.  They took steps in Minnesota to secure their legal position there and have also taken such steps they have been able to take to secure the position in Germany.  I am satisfied that they have acted in good faith throughout and the Court, in the circumstances of this case, should authorise the payments that have been made other than for reasonable expenses.

14. Turning to the final issue under Section 54, the position in relation to domicile.  What the Court needs to be satisfied of is that at least one of the Applicants is domiciled in this jurisdiction at the time of the application and at the time of the order.  Both Applicants were born in Germany; their domicile of origin is in Germany. What is said is that CD has acquired a domicile of choice in this jurisdiction and that even though the parties have not lived in this jurisdiction for any length of time since 2013, for reasons which I shall explain in a moment, she has retained her domicile of choice in this jurisdiction and has not abandoned it. 

15. The authorities are set out very clearly in the helpful Skeleton Argument by Ms Gamble; in particular a number of cases are referred to.  In C and C v D and D [2014] EWHC 1307 at para. 22 I summarised the key principles relating to domicile. In particular that a domicile of origin adheres until the acquisition of a domicile of choice is proved to the required standard on the balance of probabilities by the person asserting such a change.  Here that obviously is CD.  Secondly, to acquire a domicile of choice there must be both an animo et facto, i.e. a person must both reside in a new country and also form a sufficient intention to live permanently or indefinitely in that country.  Thirdly, acquisition of a domicile of choice is not to be lightly inferred, and fourthly, important factors which are relevant considerations are whether a person has formed the necessary intention to return to live in their country of origin on the happening of a reasonably foreseeable contingency and whether they are resident in a country for a general or limited purpose. In that case I agreed with that distilled analysis of the key principles and said it had been made clear in a number of cases that long residence in a new country is not of itself sufficient to establish that the person has acquired a domicile of choice there, if they intend to return to their country of origin on the happening of a contingency which is reasonably foreseeable. 

16. I have also been referred to a further decision of mine, AB v SA [2013] EWHC 426. In that case I considered one of the factors that the Court could take into account was where the Applicants wanted to be able to raise their family safely and happily.  In that case,  the decision to move permanently to the United Kingdom was a planned thought-out decision. They set out in their statements the considerations that provided the powerful motivation for this decision, in particular legal recognition of their domestic partnership and the legal protection to prevent discrimination if they had a family. 

17.  In Agulum and Anr v Cyganik [2006] EWCA Civ 129 Mummery LJ set out the position as follows:

'The emphasis of the judgment is with respect wrong.  Although Andreas' intentions regarding both Cyprus and England are closely interrelated the adhesiveness of the domicile of origin, the incidence of the burden of proof and the level of the standard of proof all require the person contending for a domicile of choice to establish a clear case Andreas intended to live permanently or indefinitely in England.   In my judgment the question is not so much whether Andreas intended to return to live permanently in Cyprus but whether it had been shown that by the date of his death he had formed the intention to live permanently in England.  The crucial point is that Andreas has a domicile of origin in Cyprus until it is proved that he intended to reside permanently or indefinitely in England.' 

18. These cases together make it clear that it is the nature and purpose of the residence, along with a person's future intentions that should be considered when determining domicile status.  In particular, I am also referred to a passage in Dicey in relation to retention of domicile of choice which is as follows: 'A person abandons the domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely and not otherwise' so it is not just the physical absence, but you need to have the intention to cease to reside there as well. 

19.  It is clear from these cases that the burden of proof to establish domicile of choice is on CD.  She needs to establish that on the balance of probabilities. It is a question of fact which is individual to each case.  The issue here is has CD acquired a domicile of choice and if she has, has that subsequently been abandoned as a result of her not being able to live in this jurisdiction since 2013?  

20. The evidence demonstrates that CD came here in 2003 following her husband, who had come here two years previously, as a result of his employment.  He was working in England and she came to join him here in 2003, when she was 21 years of age.  She settled here very quickly and, as she said in her evidence, she formed the intention to live here permanently in about 2005.  That is demonstrated by a number of different factors.  She enrolled in courses; purchased a family home here; chose to have their wedding here. She also applied to naturalise as a British citizen, which she did in 2013 even though such registration had no material advantage for her because as a German citizen she had free movement in and out of this jurisdiction. 

21. In 2009 due to unemployment, AB was only able to secure a position in Germany. Between 2009 and 2013 CD remained based here at the family home, with frequent visits to her husband in Germany and him back here. As she said in her evidence, when he required medical treatment or any other kind of treatment he would come back and have it in this jurisdiction. 

22. In 2012/2013 they sold their home here because the Water Board had announced that it was going to undertake major works that was going to result in their home being uninhabitable for a significant period of time.  They were fortunate to be able to find a purchaser and sold it in 2013, with the result that CD moved to Germany to stay with AB in rented accommodation.  Since then they have been searching for a replacement property here.  They became very close to finding one in 2014, but unfortunately at a very late stage that sale could not proceed due to difficulties in raising the mortgage that was required.  They have continued with their search.  They have purchased a number of investment properties in Manchester.  At the moment they have three.  CD said in evidence that they are about to acquire a fourth.  They own one property in Germany, an investment property which they have owned for the last 10 years.  They have never lived in it as a family home.   

23. Since 2015 when the children were born they have had to remain in Germany, due to legal issues in relation to the children's status in Germany.  The children have an American passport, but were without a British or a German passport. They had a three-month visa with their American passports to go to Germany and were advised there was a risk if the children left Germany they may not be able to return.  As a consequence since May 2015 the only way the Applicants have been able to leave the jurisdiction is individually, without the children.

24. I am satisfied when I consider her written and oral evidence that CD has been able to establish, on the balance of probabilities, that her domicile of choice is in this jurisdiction and  she has abandoned her domicile of origin.  This is for the following reasons. 

25. Firstly, soon after she arrived here in 2003, and certainly since 2005 she has immersed herself in the life here in the fullest sense, as she describes in her statement. 

26. Secondly, CD set out in her statement and expanded on that in her oral evidence, she feels more attuned to the English culture and customs and feels more so when she returns back to Germany. 

27. Thirdly, they had their main family home here.  Their intention is to purchase their family home here; which they have actively been looking for. The only property that they have in Germany is an investment property, which they have owned for a considerable period of time but have never lived in. 

28.  Fourthly, in 2013 CD became a British citizen.  She had no need to do that, there was no demonstrable benefit for her.  She was free to be able to move backwards and forwards as a result of being a German citizen but, as she says in her statement, she had to pledge that she had adopted England as her home, which was something she described as being very proud to do, and she repeated in her evidence. 

29. Fifthly, she has demonstrated that she has abandoned her domicile of origin and established her domicile of choice here because she has been able to demonstrate that her intention, formed in about 2005, remains the position now; she intends to live permanently and indefinitely in this jurisdiction.  She has no plans in the future to return back to Germany, either on their retirement or to be buried.  In her oral evidence she said she and her husband wish to be buried here. Despite her recent stay in Germany, due to force of circumstances, she is clear she has not changed her mind. 

30. Even though the Court is satisfied that she has acquired a domicile of choice here, it is necessary to look at the position as to whether that domicile of choice has been retained or abandoned because she has physically been out of the jurisdiction since 2013.   The evidence demonstrates that physical absence from the jurisdiction has not changed her intention to remain committed to living permanently and indefinitely here. Despite her physical absence, her intention to reside here permanently or indefinitely has remained, the actions she is taking in continuing to be able to look for a family home in this jurisdiction, and AB to look for job opportunities to come back here support that. In addition, CD gave oral evidence of the details in relation to the schooling that they have been looking at here. Her strong motivation to live here is reinforced following the birth of E and F. She very movingly described in her oral evidence that she and her husband feel able to talk more openly of the surrogacy arrangement with their friends here and within their network in England. She said they have had somewhat negative experiences in Germany which have led them to conceal the arrangement. As AB described to Mr McGavin in their discussions, their circle of trust is much smaller in Germany as a consequence of this different attitude. CD described in her evidence one of her concerns is the children not being able to talk openly about the circumstances of their origins and for her that provides another strong motivating factor, despite her physical absence, to retain her clear intention to live permanently and indefinitely in this jurisdiction.

31. Although a question of fact the circumstances of this case, as I indicated to Ms Gamble in submissions, are close to the margin of facts to support a finding of domicile of choice. However, I have had the benefit of being able to hear the oral evidence from CD, which brought her written evidence to life as regards her intention to remain permanently and indefinitely in this jurisdiction, as soon as her family circumstances enable her to do so. First, through the occupation of her husband (he is hoping to be able to return back to this jurisdiction to work) and second, when they are successful in their plan to be able to purchase a family home here.  I am satisfied CD has a domicile in this jurisdiction on the basis that she has established a domicile of choice and, in the particular circumstances of this case, she has not abandoned that domicile.

32. The Section 54 criteria are satisfied.  Turning briefly, but importantly, to E and F's welfare under Section 1 Adoption and Children Act 2002, the Court has to consider their lifelong welfare needs. It is clear that as regards their status in this jurisdiction their welfare needs require that status to be put on the securest footing possible.  The Court has the benefit of a comprehensive report by Mr McGavin. He sets out from para. 41 onwards his analysis of the welfare checklist, which I readily adopt and accept.  Unless Parental Orders are made the legal status that both E and F have in relation to the Applicants would remain uncertain.  What Parental Orders will do is confer lifelong joint and equal legal parenthood and parental responsibility on the applicant parents.  It will trigger the issue of British birth certificates for the children, confirming their membership of the family they were born into and the only family they have ever known. Such orders will fully extinguish the residual parental status and parental responsibility of the Respondent surrogate mother, which is the legal position within her own jurisdiction.

33.  Both children's lifelong welfare needs will be met by the Court making a Parental Order which will ensure they have the lifelong security their welfare demands. I will make a Parental Order in relation to both children in favour of the Applicants.