B1/2002/0857
Neutral Citation Number: [2002] EWCA Civ 715
IN THE SUPREME COURT OF JUDICATURE       
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Hedley)
								Royal Courts of Justice
								Strand
								London WC2

								Wednesday, 8th May 2002
B e f o r e:

LORD JUSTICE THORPE
LORD JUSTICE LATHAM

- - - - - -

IN THE MATTER OF W (CHILDREN)

- - - - - -
(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
- - - - - -

MISS JUDITH PARKER QC and MISS DEBORAH EATON (Instructed by Withers, 16 Old Bailey, London, EC4M 7EG) appeared on behalf of the Applicant.

The Respondents did not appear and were unrepresented.

- - - - - -

J U D G M E N T
Wednesday, 8th May 2002 
1.	LORD JUSTICE THORPE: These are applications for permission to appeal orders made by Hedley J in the Family Division on 18th February and 10th April. On both occasions the judge gave his judgment in open court because of the unusual facts and circumstances underlying his decision. On both occasions he emphasised the need to avoid the risk of the identification of the children involved, and I would give the same emphasis in relation to this judgment. 
2.	The facts that made the case unusual were summarised by the judge at the outset of the first of his two judgments. He said this: 
“4.This case is unique in the experience of all who have dealt with it. It has its genesis in the desire of HB to become a surrogate to assist those who would otherwise go through life childless. In this country surrogacy agreements are not encouraged; whilst not necessarily unlawful if payment is not involved, they are unenforceable under Section 1A of the Surrogacy Arrangements Act 1985. The laws and customs of California, USA are quite different. There surrogacy agreements, whilst regulated, are lawful and enforceable and so it was to California that HB went. There she was introduced to W&B, a married couple who were both attorneys and who desired a second child. Whilst (loosely expressed) Mr W was fertile, Ms B was not. They were interested in a surrogacy agreement under which HB would carry embryos nurtured from the egg of an anonymous donor but fertilised by the sperm of W. If such an arrangement were to proceed, then, of course, of the three adults involved, only W would have any biological connection to the child so conceived.”
3.	The judge proceeded to record the completion of the surrogacy agreement between the three adults, and he summarised its essential terms. He went on to record that HB underwent the required procedures involving the implant of the embryos at a clinic in California. However, difficulties emerged between the adults when it was discovered that HB was carrying, not a single child, but identical twins. This unplanned and apparently unforseen development led to the deterioration of goodwill between them and resulted in HB issuing proceedings in California on 1st August 2001 within which she sought a declaration that the Ws had all parental responsibility and that she had none. The proceedings which she issued resulted in an order made on 3rd October 2001 which purported to award to the Ws joint physical and legal custody of each of the children on birth, and it purported to declare that HB should have no mother/child relationship with either and no obligations of, nor rights of, a parent/child relationship with either. That order was made in the absence of HB, who had returned to this country two days previously. However, she was represented at the hearing by her Californian attorney. 
4.	There were proceedings issued in this jurisdiction prior to the birth of the twins, namely by originating summons of 5th November, a summons issued by the Ws seeking orders under the Child Abduction and Custody Act 1985. 
5.	The twins were born on 14th November. They have throughout been nurtured and cared for by their mother in this jurisdiction. 
6.	It was the originating summons that Hedley J decided on 18th February. He considered whether it was appropriate to entertain proceedings invoking the 1980 Hague Convention in relation to children unborn, and concluded that it was necessary to adopt an innovative approach to construction. He also concluded that the plaintiffs had sufficiently established rights of custody within the terms of the Convention. However, in order to succeed it was necessary for the plaintiffs to show that the twins were habitually resident in California immediately prior to the retention relied upon. He plainly considered that a difficult question, but ultimately reached the clear conclusion that it would be quite artificial to hold that they had an habitual residence in California when they had throughout their lives resided exclusively in England and Wales. He considered the related, but in a sense superfluous, question of whether they had habitual residence within this jurisdiction. He concluded that they had not. He said:
“Although they are with HB who in English law is their mother, they have no biological connection with her. They have always been intended to be American children and their future in that regard remains wholly undecided. On the singular facts of this case I have come to the conclusion that at the moment these children have no place of habitual residence.” 
7.	The effect of that judgment was, of course, to deny the plaintiffs the relief that they sought. But, as the judge said:
“... This may, however, be a Pyrrhic victory for HB for it does not dispose of the argument as to which is the most convenient jurisdiction for the determination on the merits of the future of these twins.”
8.	That observation provoked the plaintiffs to issue a further application, which they did on 25th February, invoking the inherent jurisdiction and seeking an order by paragraph 1 that the twins 
“be returned to the jurisdiction of the Government of the State of San Francisco, California, pursuant to the Inherent Jurisdiction”. 
9.	The judgment on that summons was given on 10th April, although proceedings were not fully concluded in the Family Division until two days later since, in the aftermath of judgment, there was a certain amount of exchange between the parties in the drafting of undertakings to safeguard the mother, given that the judge's primary conclusion was that the applicants were entitled to succeed in their application for the return of the twins.
10.	The judgment which he gave on the 10th is briefer than would otherwise be the case since he was able to incorporate within it by reference the meat of his earlier judgment. 
11.	The application to this court was lodged on 24th April and on 29th April an order made for this oral hearing without notice. Miss Parker has furnished us with a very full and careful skeleton argument in which she has set out (and today developed lucidly) her attack on the judge's basic approach. Of course, the reality is that the judgment of 14th February was a judgment that was entirely favourable to the mother, save in respect of the ancillary finding that the twins had at that date no habitual residence. Accordingly, in attacking the judgment Miss Parker has concentrated upon paragraph 25 and the passage within that paragraph that I have already cited, to the effect that the twins have no biological connection with their mother and have always been intended to be American children. 
12.	I fully understand the thrust of Miss Parker's criticism. What she essentially says is that the judge has ignored the physiological connection between the mother and the twins. It may be that the fertilised egg at the moment of implant had no biological connection, but the subsequent growth and development of the embryo drew exclusively on HB's bodily substance. She says that, in those circumstances, the judge should have had regard to the fact that this was essentially, and undoubtedly according to English law, an English mother who had given birth to her English twins. No‑one else in the wide world had parental responsibility. They had throughout their life shared her habitual residence here, and accordingly it was unrealistic of the judge to reach the conclusion which he did. 
13.	That criticism is, of course, carried through into her more extensive criticism of the second judgment. Here she says that the judge has essentially strayed from his proper path by equating this with cases of abducted children; cases in which the return of children is sought; cases that have no factual parallel with the present case. How could it be an application for the return of children who have never at any stage been within the jurisdiction of the Californian Court? She further says that the judge has fallen into fundamental error in failing throughout to apply the welfare of the twins as his paramount consideration. Instead, he has applied some doctrine of forum conveniens which has led him to subjugate the welfare paramountcy. She also submits that he has given quite insufficient weight to the statutory provisions within the Surrogacy Arrangements Act 1985 and the philosophy which underlies those provisions. She asserts that he should have had no regard at all to a Californian agreement, to a Californian statute or to Californian proceedings, which are all founded upon propositions of law and an underlying philosophy that are completely inimicable to the law of England. She has, in the end, summarised her submissions, most helpfully, by saying that this is not a case of abduction or removal of children; the contractual provisions do not in any way make them Californian children; that this court cannot ignore English law and the physiological position of the mother; that the prior proceedings in California are, by seeming agreement between the parties, to be set aside, that there are therefore no continuing proceedings in California and that any Californian proceedings will have to start afresh; that it would be quite wrong to attach any weight to the fact that the Californian proceedings were issued first in time, since only California permits the litigation of issues affecting children in utero. She says that this is not a case of forum shopping; that her client only returned to this jurisdiction when the agreement between the adults had broken down. There would be no benefit, and only detriment, in deferring to the Californian Courts; this was not a case for undertakings; the use of undertakings to buttress the position of the unsuccessful respondents should be restricted to Hague Convention cases; and, last, she emphasises that there are public policy issues which deserve to be aired in the appellate courts whatever the validity of the discretionary decision of the trial judge. 
14.	In relation to the judgment of 18th February, it would, in my opinion, be wrong to grant permission to appeal. The judge had to decide an extremely novel and ambitious application under the Hague Convention and, in my opinion, he came to precisely the right conclusion in refusing the plaintiffs the relief that they sought. No application for permission was made within time. That, of course, is understandable. But the fact is that a considerable extension would be necessary to constitute permission in relation to that judgment. The judge's conclusion that the children as at that date had no habitual residence is a conclusion to which he was entitled to come on the facts. It was a finding of fact and it reflected the extremely unusual circumstances of the case. 
15.	The judge's decision on the originating summons of 25th February could be said to be more vulnerable. After all, the application for permission is not out of time and the judge had to consider far-ranging and complex submissions of law. Of course, it can fairly be said that none of the cases that he cited and by which he directed himself was in point, since all of them arose out of either Convention cases or cases in which the applicant sought the return to a non Convention country of abducted children. The judge was essentially striving for a discretionary conclusion on a highly unusual set of facts which were not governed directly by prior authority. To that extent, it could be said that this would be a suitable case for the consideration of the appellate courts, who might seize the opportunity to establish new propositions or to offer guidance to courts of trial which may have to wrestle with similar problems in the future. That is essentially an alternative statement of Miss Parker's public policy submission. 
16.	Against that, it seems to me that there is a fundamental unreality about the approach that Miss Parker takes in her submissions on this application and which would undoubtedly be renewed were permission granted. She demands for her client that she be judged strictly according to the statutory regime which accords her, and her alone, parental status. But all that would require either the court of trial or the Court of Appeal to close its eyes to the history and the fundamental origins of the relationship between these three adults and the subsequent development of those relationships. It would also demand that the courts closed its eyes to the reality that California has, perfectly legitimately, adopted a different solution to the problems which are posed for legislators and lawyers by these extraordinary developments in scientific capability. 
17.	In the end, reduced to essentials, the judge had to take an extremely difficult discretionary decision on an unprecedented set of facts and circumstances. I do not think that it can be said that he has fallen into any evident error of law. He was entitled to look to authority in related fields for some guidance. But in the end he had to come to a decision that, like any other discretionary decision taken in the Family Division, was founded upon good sense, profound reflection, foresight as to what would be the likely outcome for the children, with whom he was primarily concerned, and due regard for the friendly system of law that had previously entertained proceedings between the parties. The Family Justice System in California is highly sophisticated and highly developed. It has proved to be one of the most innovative of all the States of America in the field of family law. The judge had to have regard to its prior involvement as well as to all the other relevant ingredients of the history. 
18.	Accordingly, I have reached the conclusion that, despite Miss Parker's powerful and skilful argument, reduced to essentials, this second judgment was a discretionary decision, and this court, although no doubt capable of expressing differing views on the related but not directly applicable precedents, would be bound to respect that the discretion was for the court of trial and not for this court. I would not myself see sufficient prospects of success to justify the grant of permission. 
19.	For all those reasons, I would dismiss these applications.
20.	LORD JUSTICE LATHAM: I agree. 
Order: Application dismissed. Detailed assessment of the Applicant's costs.