Private Law Update: March 2022
Index of Cases
- Z (A Child) (Surrogacy)  EWFC 18 – the High Court was concerned with an application for a parental order in relation to Z, a child. The applicants were Z’s mother and father and the respondent was the gestational surrogacy mother (Y) who gave birth to Z as a result of a surrogacy arrangement.
- Manetta v De Filippo  EWCA Civ 409 – The Court of Appeal considered an appeal against the decision of HHJ Roberts from December 2020 to lift a stay on a divorce petition which had been in place since June 2016.
Z (A Child) (Surrogacy)  EWFC 18
Judgment handed down by Mrs Justice Theis
The High Court was concerned with an application for a parental order in relation to Z, a child. The applicants were Z’s mother and father and the respondent was the gestational surrogacy mother (Y) who gave birth to Z as a result of a surrogacy arrangement. Y did not attend the hearing.
Background: The Application was being heard in the context of on-going care proceedings relating to Z. Those proceedings concluded in final orders being made in relation to the applicant’s older children (born following IVF treatment). During proceedings, it transpired that Z was born via surrogate, however, no parental order had been applied for. Those care proceedings were adjourned so that this application could be made.
The Court considered the process under the 1961 Hague Convention Aboloshing the Requirement of Legalization for Foreign Policy Documents on Apostille – this allowed the written consent of the surrogate mother to be given in circumstances where it was subsequently confirmed as being a valid and lawful notarized document under Georgian Law (Georgia is where the surrogate mother resides and where the surrogacy agreement took place).
In the care proceedings, Dr Bianca Jackson (expert) pointed out that without a parental order, Y remains Z’s legal mother in this jurisdiction by virtue of s33(a) HFEA 2008. If the surrogate mother was not married, the father is regarded as the legal father as he is the biological father (common law).
Mrs Justice Theis stated that both applicants’ failed to give the Court information in a helpful, consistent or reliable way and failing to do so was inimical to Z’s welfare and identity; ‘depriving him of being able to grow up with a reliable account of his own particular background.’ Further, there were issues in locating the surrogate mother. The solicitor for the child was eventually able to speak with her and she confirmed she consented to the parental order being made – arrangements were put in place for her written consent to be completed and notarised.
The Court considered the criteria under s.54 HFEA 2008 which was summarized as follows:
(1) The biological connection with at least one of the applicants and the child, and the child was not carried by one of the applicants (s54(1)(a) and (b));
DNA tests confirmed Z was carried by someone other than one of the applicants.
(2) Whether the applicants at the time of the application and at the time when the court is considering making an order are married, civil partners or in an enduring family relationship (S54 (2)).
Reliance was placed on Re X  1 FLR 349 where Munby P made a parental order in circumstances where the applicants had been separated for 12 months and the child had been living in two separate homes throughout; holding that in respect of s54(2), the statute should be read in a way that was compliant with the European Convention. Mrs Justice Theis accepted they had established a family life, despite now being separated.
(3) The application should be made within six months of the child’s birth (s54(3)).
Re X (A Child)(Parental Order: Time Limit)  concluded there is power to make a parental order notwithstanding the 6 month time limit. In this case, the parents were not aware of the need for such an order. When they became aware of it, they applied the next month.
(4) At the time of the application and at the time when the court is considering making an order is the child’s home with the applicants (s54(4)(a)).
Requirement was considered met – since the separation, both parents remain committed to Z.
(5) At the time of the application and at the time when the court is considering making an order at least one of the applicants is domiciled in this jurisdiction (s54 (4)(b)).
The Court also accepted the mother’s domicile of choice is here.
(6) Whether the applicants are over 18 years (s54 (5)).
(7) Whether the surrogate mother has given her consent, freely and with full understanding, to the making of a parental order at least 6 weeks after the birth of the child (s54 (6) and (7). If such written agreement is executed outside the United Kingdom rule 13.11(4) Family Procedure Rules 2010 (FPR 2010) provides details of who can witness such agreements, including a notary public.
Given the arrangements that had taken place in respect of obtaining Y’s unequivocal consent, the court was satisfied Y consented to making the parental order.
(8) Whether any payments have been made, other than for expenses reasonably incurred and, if so, do they require to be authorised by the court (s54 (8)).
It appeared that a commercial surrogacy arrangement had taken place, which involved payments other than for expenses reasonably incurred. In whether those payments should be authorised, the court considered whether the payments were disproportionate, whether the applicants acted in good faith or sought to get around authorities. The fine details remained unclear, Y was clear that she acted as a surrogate mother, was willing to co-operate with providing her consent, although she could not recall the amount she accepted. Although there was concern about who the applicants approached the surrogacy, there was no suggestion the applicants did not act in good faith or that they soughed to get around the authorities.
In respect of welfare, the court considered whether making the parental order will meet Z’s needs (s.1 (4) ACA 2002). Mrs Justice Theis determined that although there were complexities arising from the parent’s relationship, without a parental order Z would not be able to make sense of his background – making a parental order will secure Z’s lifelong welfare interests.
The parental order extinguished Z’s legal relationship with Y and secure his relationship with his older siblings.
Full judgement at: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/18.html
Manetta v De Filippo  EWCA Civ 409
Judgement handed down by Lord Justice Baker.
The Court of Appeal dismissed an appeal that had arisen out of HHJ Roberts’ decision to stay a divorce petition because there were judicial separation proceedings ongoing in Italy. The Court was concerned with whether the Judge erred in not dismissing the petition retrospectively. Having found the Italian judicial separation proceedings were not converted into divorce proceedings, HHJ Roberts was right to conclude that the wife’s English proceedings were the only extant proceedings and the English court was therefore first seized and the stay on the wife’s petition should be lifted.
Background: HHJ Roberts imposed a stay on a divorce petition that had been in place since June 2016 because there were judicial separation proceedings ongoing in a court in Turin so that the Italian court was ‘first seized’ of matrimonial proceedings. The English petition was never dismissed so when the judicial separation proceedings came to an end before divorce proceedings were started in Italy, the English court became first seized. The Court of Appeal were concerned with whether HHJ Roberts erred in not dismissing the petition retrospectively.
At all material times both Italy and the UK were members of the EU and governed by jurisdictional rules in Council Regulation (EC) 2201/2003.
The parties married in Turin in 2006 and they selected the Italian community property regime, however, in 2008 they executed a notarised deed opting for separation of property. In 2009, they moved to London where they purchased a property in joint names. In 2016, they separated – the husband moving back to Turin and the wife remaining in London. In the March, the husband issued a judicial separation petition in Turin and in the May, the wife filed a divorce petition in London together with an application for a financial remedies order. The wife’s application was stayed until the Turin court had pronounced upon seisin under Article 16. That order provided that each party had permission to apply to lift the stay and dismiss the petition or seek further directions following determination of jurisdiction by the Italian Court.
There were a large number of court orders in the proceedings in both jurisdictions which the Court of Appeal stated illustrates the extensive arguments about jurisdiction that have ‘bedevilled these proceedings.’
At a hearing on 12th May 2020, the court decided that the issue of jurisdiction should be determined by the English court and extended the stay of the wife’s petition pending that hearing. On 7th August 2020, the Italian court also stayed the Italian divorce proceedings until it was determined.
The matter came before HHJ Roberts on 30th November and 1st December 2020, after consideration of numerous issues that had occurred throughout the proceedings, she reached the following conclusions:
(1) she made no finding as to whether the English court should have dismissed the divorce proceedings which had been stayed;
(2) it was not for her to look back and decide whether at some point the proceedings should have been dismissed or to make her decision based on an assumption that they should have been;
(3) there is no system in Italian law for conversion of a JS into a divorce as envisaged in Article 5;
(4) between the making of the judicial separation order on 7 October 2019 and the lodging of the husband’s application for divorce in Italy on the same day, the wife’s English proceedings were the only extant proceedings;
(5) therefore, the English court was first seized of the divorce proceedings which were brought here by the wife.
For those reasons, she granted the wife’s application to lift the stay on her divorce petition. The husband filed a notice of appeal which was granted by Peel J on only one of the nine grounds put forward by him – the Judge was wrong in law to entertain the wife’s application to lift the stay on her petition as it is a mandatory requirement (Article 19 of Brussels IIA) that the court second seized “shall decline jurisdiction.”
After submissions, the court agreed there is a distinction between Article 19(1) and (3) and the obligation on the court second seized to take action ‘of its own motion’ only applies to the requirement to stay the proceedings, which is akin to an administrative action. The requirement on the court second seized to decline jurisdiction is a judicial obligation that arises once it is demonstrated that the jurisdiction of the court first seized is established. They are only discontinued when the court so orders and if no order is made, there is no discontinuance. If the court second seized does not decline jurisdiction before proceedings in the court first seized come to an end, the obligation to decline under Article 19(3) no longer arises. The interpretation is reflected in FPR 7.27.
In this case, no formal application to discontinue the proceedings or dismiss the petition before the Italian judicial separation proceedings came to an end. The Court saw no judicial failure to apply Article 19 in the present proceedings.
The Court of Appeal analysed the relied upon case law in these proceedings, which included (but not limited to – see full judgment) distinguishing from the authority of Ville de Bauge v China  EWHC 3975 (Fam). But overall, the court considered the case law as being fully supportive of the interpretation of the regulation adopted by HHJ Roberts.
“This Court has proceeded on the basis of the judge’s finding, which is not the subject of this appeal, that under Italian law there is no conversion of a judicial separation order into a divorce within the meaning of Article 5, so that there was a period of time, albeit very short, when there were no proceedings extant in Italy. My conclusion on the issue under appeal is that, having found that the Italian judicial separation proceedings were not converted into divorce proceedings, Judge Roberts was right to conclude that, between the making of the judicial separation order on 7 October 2019 and the lodging of the husband’s application for divorce in Italy on the same day, the wife’s English proceedings were the only extant proceedings, that the English court was therefore first seized of the divorce proceedings and that the stay on the wife’s petition should be lifted.”
The appeal was dismissed.
Full judgment at: https://www.bailii.org/ew/cases/EWCA/Civ/2022/409.html