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H v S (Surrogacy Agreement) [2015] EWFC 36

Date:7 MAY 2015
Law Reporter
(Family Court, Russell J, 30 April 2015)

[The judicially approved judgment and accompany headnote has now published in Family Law Reports [2016] 1 FLR 723]

Private law children – Surrogacy – Child arrangements orders – Child prevented from having contact with father – Disagreement as to intention of agreement – Mother had negative views of father and his partner – Whether the child should live with the mother or the father

Please see attached file below for the full judgment.

The father and his partner successfully applied for a child arrangements order permitting the one-year-child to live with them and have contact with the mother following a failed surrogacy arrangement.

The one-year-old child was born as a result of a surrogacy arrangement between the mother, her friend, H, who was the biological father and his long-term same-sex partner, B. After the child's birth H and B contended that they had agreed for the mother to act as a surrogate and although she would maintain a role in the child's life, they would be her full-time carers. The mother submitted that they agreed for H to act as a sperm donor and that their roles would be akin to those of separated parents. She objected to B playing any part in the child's life.

Since birth the child had lived with the mother and had been prevented from having contact with H and B. All three adults applied for residence and contact orders. During the course of proceedings a prohibited steps order was made preventing the parties from removing the child from the jurisdiction and from having her baptised or christened. The mother in fact had the child baptised according to Christian Orthodox rites and lied about having done so. All three parties were Christian but H was protestant while B was Roman Catholic.

The guardian's view was that the mother's negative opinions of H and B would cause the child emotional harm and confusion about her identity. She recommended that the child should live with H and B and that contact with the mother should be reduced to once a month.

From all of the evidence, considered in the light of the child's best interests, it was clear that the mother was unable to prioritise the child's interests above her own. Moving a young child from her mother was a difficult decision which was likely to cause distress but the judge concluded that H was the parent who was best able to meet the child's needs both now and in the future. He had shown the ability to allow her to grow into a happy, balanced and healthy adult and he could help her to reach her  greatest potential.

At best, the mother had deluded herself about the nature of the agreement she was reaching first with H and later with H and B. It was very unlikely that such an obviously astute and determined woman would have left anything to chance when it came to having a baby. Although the substance of the proceedings in relation to her older children would not be relied upon, the court took into account the fact that she no longer had those children living with her and she had limited contact.

It was not the function of the court to decide on the nature of the surrogacy agreement but to make decisions serving the best interests and welfare of the child throughout her childhood. In this instance the child living with H and B and spending time with the mother was in her best interests and that coincided with the reality of her conception and accorded with her identity and place within her family. Child arrangements orders would be made accordingly. Initially contact with the mother would be supervised.

The nature and duration of the proceedings combined with the mother's behaviour had been very stressful for the fathers. Therefore, consideration would be given to a s 91(14) order once the child arrangements order was finalised. A prohibited steps order would be imposed preventing the mother from removing the child from the jurisdiction until the child's 16th birthday.
Case No: FD14P00262
Neutral Citation Number: [2015] EWFC 36


AND IN THE MATTER OF M (A Child) (born 27th January 2014)

Royal Courts of Justice

Date: 30/04/2015



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H & B
1st & 2nd Applicants


1st Respondent
M (A Child)(by her Children’ Guardian)
2nd Respondent

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Ms Elizabeth Isaacs QC (instructed by Natalie Gamble Associates) for the 1st & 2nd Applicants
Ms Alev Giz (instructed by R A Savage & Co) for the 1st Respondent
Ms Alison Moore (instructed by Morrison Spowart) for the 2nd Respondent Child

Hearing dates: 19th -21st January 2015 and 18th & 20th February 2015

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H v S (Surrogacy Agreement) [2015] EWFC 36