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Mrs Justice Pauffley handed down her judgment in the case of RJ & BK v RT [2016] EWHC 760 (Fam) on 22 June 2016.

This is an important judgment on inter-country surrogacy, from both a family law and an immigration law perspective.

The case concerned an application for a Parental Order by the commissioning parents of a child born in India through a surrogacy agreement. The child is living in India. The applicants have been unable to bring the child to the UK because their application for a settlement visa was rejected on the basis that the intended father, who is the child’s biological father, is not treated as the child’s father under the immigration rules.

The Guardian was therefore unable to observe the applicants with the child. The Guardian nonetheless recommended that there were “compelling welfare reasons” to make a parental order.

Mrs Justice Pauffley stopped short of making a parental order at this stage. She had previously indicated that it would be helpful if the Secretary of State for the Home Department were to reconsider the decision not to grant UK entry clearance to the child. She also noted that, if and when such reconsideration took place, it would be helpful for the family court to have made findings as to whether the intended parents met the criteria for the making of a parental order. The Secretary of State had subsequently confirmed she would reconsider the decision and take into account any relevant findings in the family court. Mrs Justice Pauffley therefore did not make a parental order, pending that reconsideration.

However, the judge was clear that the reconsideration needed to take place quickly. To that end, she listed a further hearing and noted that if the “immigration impasse persists” she would consider whether she should proceed to make the parental order to “circumvent the entry clearance difficulties at one stroke”. The decision is significant both with respect to the suggestion that a family court order might circumvent immigration rules and with respect to whether it is necessary for a child to be seen with the applicants in such cases by the parental order reporter or Guardian in order to prepare the welfare report. These issues were raised in the judgment of Russell J in Re Z [2015] EWFC 90. Russell J held in that case that the view and guidance of the court was that a parental order reporter’s investigations must include seeing a child with the applicants, other than if there are “exceptional and compelling” welfare reasons or where there is sufficient evidence as to their welfare from another source.  Mrs Justice Pauffley did not refer in her judgment to these parts of Russell J’s judgment in Re Z.

Mrs Justice Pauffley went on to consider the requirements for the making of a parental order under s.54 HFEA 2008. She held that the criteria were met, notwithstanding among other things that the application was out of time, and that the welfare of the child would be best served by the making of a parental order.

Written by: Jemma Dally and Hattie Miall

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