court found that the father and his partner were ‘child-focused’ and had, in contrast, gone out of their way to
provide the mother with a place in the child's life, continuing to offer
contact more frequently than even the child's guardian had recommended.
The judge found them 'measured'
and said they had showed 'marked empathy
and understanding' for the mother notwithstanding her treatment of them.
The father's partner was 'remarkably
forgiving' and 'when
talking about M he was warm and loving and referred to [the child] as "our
daughter"; she was clearly very important to him'.
Justice Russell therefore decided that it was in the child's best interests to
live with the couple. She said:
'While to move a young child
from her mother is a difficult decision and is one which I make with regret as
I am aware that it will cause S distress I conclude that H is the parent who is
best able to meet M's needs both now and in the future. It is he who has shown
that he has the ability to allow M to grow into a happy, balanced and healthy
adult and it is he who can help her to reach her greatest potential.'
judge ordered supervised contact for the mother, at least initially. This
unusual step was something the court had 'struggled
with' but ultimately concluded was necessary, both due to a real fear the
mother would remove the child to Romania (having done so in breach of court
orders in the past in respect of her older daughters) and to ensure that
contact could not be used by the mother as 'a
means of continuing the contest for ownership of M' which would make
contact a negative experience for the child. The judge said she hoped
that in time this would no longer be necessary, and pointed out that the
fathers still aspired to the mother playing an important role in her child's
life including having contact in a more relaxed environment.
The legal perspective
and surrogacy agreements are unenforceable under UK law, so the case was never,
at a legal level, about whether the court should uphold the original agreement
between the parties (contrary to what some of the press coverage would suggest).
However, what was agreed between the parties did form an important part
of the factual background necessary to determine the case, and the court said it
was also important for the child that the truth about her origins was resolved.
legal issue to be decided was what living and contact arrangements would best
promote the child’s welfare going forward. As in all Children Act cases,
the judge had to weigh up all the circumstances, consider the welfare checklist
and decide what long term arrangements were best. Referring to the Court
of Appeal decision in Re N
(2007) – another disputed surrogacy case in which
residence was awarded to the intended parents - the judge said that the test
was: 'Put very simply, in which home is [the child] most likely to
mature into a happy and balanced adult and to achieve his fullest potential as
the media hoopla in response to the case, the decision to transfer main care to
the fathers is not as controversial as it might first appear. It was a transfer of residence in a dispute
between parents, just one of the many welfare-based decisions the family court
make every day.
case has, however, sparked an important debate about the future of UK surrogacy
law, which we hope will encourage positive change from what is undoubtedly a very
sad story for all involved. This is in part a result of Ms Justice
Russell’s comment at the very start of the judgment that: 'The lack of a properly supported and
regulated framework for arrangements of this kind has, inevitably, let to an
increase in these cases before the Family Court.'
agree that UK surrogacy law is woefully outdated and that, although disputes
like this have to date thankfully been rare, they will inevitably become more
common if we do not give the law more structure and clarity. As the court
intimated, what we need is a proper process for adults to go through which
ensures that those entering into arrangements to conceive a child think through
all the issues carefully and proceed only if there is consensus. In many
US states, including California, parents and surrogates are given psychological
screening, and medical and legal advice before entering into a written contract
which then allows the court to make a pre birth order confirming everyone's
responsibilities before the birth.
think it is time for a similar framework in the UK. Had it been in place
already, this dispute would probably never have happened.