Common law recognition of foreign declarations of parentage

This note addresses the question whether
there is a common law basis for the recognition of foreign declarations of
parentage. It appears that this issue has not received much attention in common
law jurisdictions, but it was the subject of a relatively recent Privy Council decision
(C v C [2019] UKPC 40).

The issue arises where a foreign
court or judicial authority has previously determined that a person is, or is
not, a child’s parent, and the question of parentage then resurfaces in the
forum (for example, in the context of parentage proceedings or maintenance proceedings).
If there is no basis for recognition of the foreign declaration, the forum
court will have to consider the issue de novo (usually by applying the law of
the forum: see, eg, Status of Children Act 1969 (NZ)). This would increase the
risk of “limping” parent-child relationships (that is, relationships that are
recognised in some countries but not in others) – a risk that is especially
problematic in the context of children born by way of surrogacy or assisted
human reproduction technology.

The following example illustrates
the problem. A baby is born in a surrogacy-friendly country to a surrogate
mother domiciled and resident in that country, as the result of a surrogacy arrangement
entered into with intending parents who are habitually resident in New Zealand.
The courts of the foreign country declare that the intending parents are the
legal parents of the child. Under New Zealand law, however, the surrogacy
arrangement would have no legal effect, and the surrogate mother and her
partner would be treated as the child’s legal parents upon the child’s birth.
Unless the foreign judgment is capable of recognition in New Zealand, the only
way for the intending parents to become the child’s legal parents in New
Zealand is to apply for adoption (see, eg, Re Cobain [2015] NZFC 4072, Re Clifford [2016] NZFC 1666, Re Henwood [2015] NZFC 1541, Re Reynard [2014] NZFC 7652, Re
Kennedy [2014] NZFLR 367, Re W [2019] NZFC 2482, Re C
[2019] NZFC 1629).

So what is the relevance of a
foreign declaration on parentage in common law courts? In C v C [2019]
UKPC 40, [2019] WLR(D) 622, the Privy Council decided that there was a basis in
the common law for recognising such declarations, pursuant to the so-called Travers
v Holley principle. This principle, which has traditionally been applied in
the context of divorce and adoption, calls for recognition of foreign judgments
on the basis of “jurisdictional reciprocity” (at [44]). The Privy Council
applied the principle to recognise a declaration of parentage made in Latvia,
in relation to a child domiciled and habitually resident in Latvia, for the
purposes of maintenance proceedings in the forum court of Jersey. Lord Wilson
emphasised that, although foreign judgments may, in some cases, be refused on
grounds of public policy, recognition will not be refused lightly: “a court’s
recognition of a foreign order under private international law does not depend
on any arrogant attempt on that court’s part to mark the foreign court’s
homework” (at [58]).

As a matter of policy, my first
impression is that the Privy Council’s decision is to be welcomed. Common law
jurisdictions have traditionally taken a conservative, relatively “closed”
approach to the recognition of foreign laws and judgments on parentage (see Hague
Conference on Private International Law A Study of Legal Parentage and the
Issues Arising from International Surrogacy Arrangements (Prelim Doc No 3C,
2014)). Such an approach has become increasingly indefensible in a world that
is witnessing unprecedented levels of cross-border mobility and migration. The conflict
of laws should, as a matter of priority, avoid limping parent-child
relationships: for example, a child who was declared by the courts of their
place of birth to be the child of the intending parents, but who is
nevertheless treated as the surrogate mother’s child under New Zealand law. The
ability to recognise foreign judgments on parentage may not amount to much progress,
given that it can apply only where the foreign court has, in fact, made a
declaration of parentage: it would have no application where the relevant
parent-child relationship simply arises by operation of law or through an
administrative act (such as entry of the intending parents in the birth
register). There is no doubt that an international solution must be found to
the problem as a whole. But it is surely better than nothing.

Another question is what to make of the Privy Council’s reliance on the Travers v Holley principle. Based on the decision in Travers v Holley [1953] P 246 (CA), the principle enables recognition of foreign judgments by virtue of reciprocity: the forum court will recognise a foreign judgment if the forum court itself would have had jurisdiction to grant the judgment had the facts been reversed (ie had the forum court been faced with the equivalent situation as the foreign court). In the context of divorce, the principle has since been subsumed within a wider principle of “real and substantial connection” (Indyka v Indyka [1969] 1 AC 33 (HL)). In the context of adoption, the principle has been applied to recognise “the status of adoption duly constituted … in another country in similar circumstances as we claim for ourselves” (Re Valentine’s Settlement [1965] Ch 831 (CA) at 842).

Perhaps it is not a big step from
adoption to parentage more generally. The Privy Council recognised that the latter
primarily represents “a conclusion of biological fact”, while adoption “stamps
a person with a changed legal effect” (at [39]). But the Privy Council did not seem
to consider that this distinction should warrant a different approach in
principle. In C v C, the issue of parentage involved a relatively straightforward
question of paternity. Had the case involved a question of surrogacy or human
assisted reproduction, the answer might well have been different. There is an
argument that a parent-child relationship created under foreign law can only be
recognised in the forum if the foreign law is substantially similar to forum
law. Thus, in the context of adoption, it has been asked whether the concept of
adoption in the foreign country “substantially conform[s] to the English
concept” (Re T & M (Adoption) [2010] EWHC 964, [2011] 1 FLR
1487 at [13]). This requirement might not be made out where, for example, the law
of the forum does not recognise parentage by way of surrogacy (as is the case
in New Zealand).

The Privy Council cautioned that the
Board did not receive full argument on the issue and that the reader “must bear
the lack of it in mind” (at [34]). It seems especially important, then, for conflict
of laws scholars to give the issue further consideration. This note may serve
as a careful first step – I would be interested to hear other views. Perhaps the
most encouraging aspect of the Board’s reasoning, in my mind, is its openness to
recognition. The Board’s starting point was that the declaration could be
recognised. Arguably, this was because counsel seemed to have largely conceded
the point. But to the extent that it cuts through an assumption that questions of
parentage are generally left to the law of the forum, it nevertheless strikes
me as significant – even more so since the UK Supreme Court’s previous refusal
to extend the Travers v Holley principle beyond the sphere of family law
(Rubin v Eurofinance SA [2012] UKSC 46, [2012] 3 WLR 1019 at [110],
[127]).