Manisha Marwaha advised and represented the Secretary of State for the Home Department (SSHD), in family proceedings before the High Court, concerning an application for a parental order made following an international surrogacy arrangement, pursuant to s54 of the Human Fertilisation and Embryology Act 2008.
The children, who were multiples, remained with one parent in Nigeria whilst the other resided and worked in the UK. Negative determinations for entry clearance into the UK had already previously been issued for the children by the SSHD and further decisions were awaited under an administrative review process.
The SSHD had raised concern previously with the surrogacy arrangement, including the requirements relating to consent from the surrogate and no financial benefit being paid to the surrogate directly or indirectly. This complicated the family proceedings and had caused delay, whereby one of the requirements for a parental order report is that the reporter must meet the children with the applicants in order to assess properly the children’s welfare.
Manisha was required to provide representation before the High Court and also advice to the SSHD regarding relevant disclosure, proportionate timescales and the impact of delay, intervenor status and the relevance of any findings made by the Family Division on the applicant’s ability to satisfy the requirements for a parental order; particularly in circumstances where the children have not been brought into the UK due to a failure to satisfy immigration controls. In this matter timescales were ultimately made available for the provision of a review decision with minimal further delay.
This case re-emphasised however the importance of considering alternative avenues at an early stage to prevent delay. To this end, the following is of note when considering these types of applications and potential other avenues to progress proceedings:
- Following the making of any factual findings by the Family Division, for which a party such as the SSHD may wish to intervene and be part of the fact finding process, matters can be reconsidered by the SSHD. This is in light of a concessionary arrangement by which children who were not British Citizens and did not qualify for entry under the Immigration Rules might be granted entry clearance / leave to enter the UK for 12 months if the commissioning couple demonstrate that they were capable of meeting the requirements necessary to obtain a parental order under s54 and satisfied as many of the rules requirements as they can. In this matter the requirements had already been provisionally considered in light of the available disclosure and pursuant to the requirements of any concessionary arrangement.
- In certain cases there are alternative means of assessment available which include the requirement for the meeting with the children to be dispensed with by the High Court if there is already adequate independent evidence available of the children’s wellbeing or if there are “compelling and exceptional reasons” that preclude the meeting.
- The Court may also in certain cases rely heavily on supplementary evidence, such as comprehensive reports from local social workers in the child’s country of residence, paediatric records and photographs / videos.
Manisha practises in both public and private children law with a primary focus on international family law matters. To instruct Manisha, please contact our clerks on clerks@kbwchambers.com