The High Court Approach to Parental Order Applications

In April 2026, Mr Justice Williams took the opportunity to deal with nine separate cases together to reiterate the principles that have to be applied by the Court in applications for parental orders under S54 HFEA 2008 to transfer the legal parenthood of the nine subject children from their respective surrogates to their intended parents. The cases are reported together as A & B -and- C & D [2026] EWHC 972 (Fam)  https://www.bailii.org/ew/cases/EWHC/Fam/2026/972.pdf and in each case Parental Orders were made. However, the Judge took a different approach to that of other judges in previous cases to the authorisation of payments to surrogates and the role of public policy so the judgment has been published in large part for that reason. In particular, at paragraph 103 he identifies three categories of cases for future reference. The Judge also reflected on how the Courts have had to take a flexible approach to the interpretation of the legislation to develop this area of law in the welfare interests of the children concerned.

Legal Framework and Effects of Parental Orders

Section 54 HFEA 2008 sets out the criteria for parental orders, including the child being carried by a non-applicant and use of at least one applicant's gametes. Applicants must be a couple, apply for a Parental Order within six months, have the child's home with them, and satisfy domicile and consent conditions. Section 54(8) requires court authorisation where money or benefits beyond reasonable expenses were given or received. Human Fertilisation Embryology (Parental Order) Regulations 2018 applies the Adoption  and Children Act 2002 so that parental orders transfer parental responsibility and legal parenthood to the applicants. Parental order certificates function as UK birth certificates and facilitate passports, benefits, and identity documentation. There is no general recognition regime for foreign surrogacy orders, unlike overseas adoptions. Adoption is the closest alternative but does not fully reflect surrogacy or have identical legal consequences.

Time Limit under Section 54(3)

Pre‑2014, the six‑month time limit was treated as absolute. That situation changed following the case of Re X (A Child: Surrogacy: Time-limit) [2014] EWHC 3135 (Fam) https://www.bailii.org/ew/cases/EWHC/Fam/2014/3135.html which established that the court may extend time, including on Article 8 grounds. That judgment endorses extending time where child welfare supports making a parental order, noting delay usually prejudices welfare. In the subject cases before Mr Justice Williams, any delay caused no prejudice to consent or process, so extension was appropriate.

Domicile under Section 54(4)

Domicile requires residence plus a genuine intention to reside permanently or indefinitely, per Mark v Mark and Sekhri v Ray. The burden to prove a domicile of choice is on the party asserting change and requires cogent evidence. Modern mobility can produce rapid domicile of choice based on intention, sometimes before habitual residence is established. On the evidence in two of the cases before Mr Justice Williams, the applicants had abandoned domiciles of origin and acquired an English domicile of choice.

Authorisation of Money or Benefits under Section 54(8)

The judge departed from prior emphasis on public policy in authorisation decisions, holding paramount welfare governs and excludes pure public policy. Historically, courts balanced welfare against public policy and always authorised payments where welfare supported an order. Since 2010, welfare throughout the child's life is paramount in Parental Order decisions via HFE(PO)R applying ACA 2002 section 1. The court found that pure public policy cannot lawfully feature in a paramount welfare determination for section 54(8). Issues such as disproportionate payments, good faith, and fraud remain relevant only insofar as they inform child welfare or consent. Parliament could amend HFE(PO)R or ACA 2002 section 1(7) to reintroduce explicit public policy in authorisation, but has not done so. In practice, if welfare supports a Parental Order, the court must authorise payments above reasonable expenses. At paragraph 74, the Judge summarised the position as follows: "The maintenance of the formulation that in considering the authorisation of monies the Court should consider the components identified by Hedley J has, in my view, become something akin to the "Emperor's new clothes" where we maintain that Parental Order applications are clothed with public policy garments when both in law and in practice the birthday suit of paramount welfare is all there is to see".

Public Policy Context and Guidance

The judgment noted government concerns about exploitation in foreign commercial surrogacy and potential opposition to orders in future cases. The court emphasised due diligence by intended parents as evidencing the ability to meet the child's needs and minimising risk of harm. A composite checklist from recent authorities is set out at paragraph 80 covering legal frameworks, consent, agency roles, documentation, immigration, and future planning. Failure to heed guidance can raise suitability and welfare concerns and trigger closer scrutiny.

Expenses and Categorisation of Payments

'Expenses reasonably incurred' is fact‑specific and not limited to payments to the surrogate, encompassing medical, insurance, and legal costs. Opaqueness in overseas agency breakdowns is common, but does not preclude authorisation where the best evidence is provided. Payments to egg donors may partly be expenses and partly compensatory or profit; applicants should tabulate and evidence categories. Form A101A language on payments is often inaccurate for foreign cases and should be amended or crossed out to reflect the reality.

Case Management Approach and Categories

The judge identifies three categories of cases: clear due diligence, due diligence with a discrete issue, and cases with significant compliance or welfare concerns. Category one may be concluded at the first hearing; category two may need oral evidence; category three may require joining the child and fuller directions.

Final Determinations in These Applications

All non‑welfare section 54 conditions were met in each case. It was in each child's best interests to make a parental order, extend time where needed, and authorise payments over reasonable expenses.

Observations on Statutory Interpretation and Accessibility

Judicial developments have transformed the application of section 54: flexible time limits, adult orders, inclusive couple definitions, home requirement, and routine authorisation where welfare requires. Overall, Mr Justice Williams has criticised the mismatch between statutory text and court practice as unsatisfactory for access to law and justice because it is likely to be confusing to litigants who do not take specialist legal advice.