Parental Order applications (applications by intended parents to regularise their legal parentage position following surrogacy) are on the rise and we are seeing more reported cases interpreting the criteria set out in Section 54 of the Human Fertilisation and Embryology Act 2008. 

In a recent case before Mr Justice Jackson in the High Court, a Parental Order application was made by a married gay couple who had conceived a child through surrogacy in the UK.  One of the fathers was South African and the other father was British, though they lived in South Africa.  The surrogate mother was the British father's sister.  There is no requirement under the statute for the child or the parents to be resident in the UK at the time the Parental Order application is made (section 54(4)(a) states that the child's home must be with the applicants, but that home does not need to be in the UK), however, there is a requirement that one of the applicants in the Parental Order must be domiciled in the UK. 

The main issue for the court to resolve was whether the British father remained domiciled in the UK, even though he had lived in South Africa since 2007.  Domicile is an English law concept which is not the same as nationality.  Every person is born with a domicile of origin but can, in certain circumstances, acquire a different domicile of choice.  If a person leaves their domicile of origin to reside in another country with the intention of living there for some indefinite time, he will not necessarily lose his domicile of origin if he intends to return, at some point, to the country he has left.  In this case, the Court found that the British father had retained his domicile in the UK. The fathers met all of the other criteria in the statute and were therefore granted a British Parental Order.

The case report confirms that the fathers' application was issued soon after the child's birth in August 2013 and the parents then took the child to South Africa, where they lived, in October 2013.  The Parental Order was made by the Judge on 5 February 2014 and the fathers returned to the UK for the final hearing.  In every Parental Order application, the Court will appoint a Cafcass officer (Child and Family Court Advisory and Support Service) to act as a "Parental Order reporter" to give recommendations to the Court about the making of the Order.

The Parental Order reporter will usually visit the applicants at their home and will observe the parents with the child.  In this case, a detailed assessment was carried out both by a local authority social worker and a parental order reporter.  It is not clear where that assessment took place given the applicant fathers resided in South Africa and returned there in October 2013, and the case is silent on this point. Perhaps the assessment took place at the home of the surrogate mother, where the fathers were staying at the time of the final hearing as it seems unlikely that the local authority and/or Cafcass travelled to South Africa to prepare their reports.

This case is useful as confirmation that it is domicile and not residence which is the important connecting factor for intended parents making Parental Order applications.  Clearly, if the parents do not reside in the UK or are not physically present in this jurisdiction (for example, if they are stuck in the country of birth for immigration reasons), the practicalities of the Parental Order application will need to be considered, in particular the arrangements for the parental order reporter to visit the parents.