The decisionJK's lack of insight regarding how this application had affected X's mothers and how this could destabilise the security of X's home, in addition to his inability to appreciate the mechanics of him having contact with X in circumstances where the adults' relationship was all but decimated, proved to be fatal.
In considering the welfare checklist, Theis J had no difficulty in supporting the Guardian's recommendation that there should be no direct contact between JK and X. In a considered judgment, Theis J found that X was being cared for excellently by her mothers, and the addition into her life of contact with JK would bring 'little positive benefit'. It would 'put at risk the security of her placement, both in the short and long term'.
Her Ladyship continued and found that, if she were to grant direct contact, it would perpetuate JK's belief that he was a separated parent and he would, in all likelihood, seek to increase contact in the future. That risk, her Ladyship found, coupled with JK's general lack of insight, was too great and it risked undermining X's placement with her mothers and detrimentally affecting her emotional welfare. The judge held that the information X required about her genetic background could easily be satisfied through annual letters without photographs (until 2019). Theis J found that the risk of JK posting photos to social media would cause unnacceptable levels of anxiety for Hs and KS which would further undermine X's stability. Her Ladyship supported the Guardian's position that anything over and above annual letters jeopardised the paramount consideration of promoting X's welfare.
DiscussionThere can be little doubt that this decision underpins the 'welfare, welfare, welfare' principle that forms the backbone of any decision of the Court when invited to make an Order regarding the arrangements for children. Whilst some readers may consider the judgment to be on the extreme end of the scale, particularly having regard to the Sperm Donation Agreement Deed, practitioners will bear in mind that, irrespective of the intentions parties may have when entering into agreements such as these, the welfare of the child will always prevail.
The welfare cornerstone of Children Act cases is amplified by the contrast of this case with the decision reached by Mr Justice Cobb in
Re A and B (Contact) (No 3) [2014] EWHC 818 (Fam), which was a case with a broadly similar factual matrix as the instant case of X: two mothers in a civil partnership, two fathers in a civil partnership, two children, mental health problems on the part of one of the mothers and an intractable contact dispute. In
Re A and B, Cobb J held, in respect of the younger of the two children, that supported contact eight times a year was necessary in order to develop the relationship between the fathers and the younger child. Cobb J held that failure to do so ran the risk of further alienating the younger child from the fathers and risked causing the child further harm.
Sympathies may be had with JK; Theis J found in her judgment that there was no doubt that he loved and cared for X very much. However, in finding that JK's application and his lack of insight towards HS and KS was detrimental to X's emotional welfare and stability, her Ladyship realistically had no alternative Order to make.
As set out in the beginning of this article, people wishing to start a family through non-conventional means should take notice of this judgment and proceed with caution. Anyone actively considering this option would be well informed to seek specialist legal advice about their rights, duties and obligations if choosing to walk down the complicated path of IVF. At the very least, there should be a universal understanding recorded in unequivocal terms as to what role each of those involved will have when children conceived through non-traditional methods are born. However, fundamentally, it must be understood that will always be subject to the welfare of the child concerned.
