Court of Appeal confirms child should live with surrogate

surrogacy

A recurring theme of my posts here has been the complexities of modern family arrangements. Only last month I wrote here about family law and the ‘non-conventional’ family, in relation to the Re B case.

The family arrangements in the recent Court of Appeal case Re M (Child) were at least equally complicated and unconventional as in Re B. I will attempt to summarise them as follows:

  1. The case concerned a 20 month old boy, ‘Z’, who was born as a result of a surrogacy arrangement.
  2. The parties to the case were on the one hand Z’s mother, ‘X’, and her partner, ‘P’, and on the other hand Z’s father, ‘A’, and his partner, ‘B’.
  3. A and B are a homosexual couple in a civil partnership. They are the fathers of twins, who were born in 2013 as a result of a surrogacy arrangement with a woman, ‘V’. V carried the babies during their gestation, and a parental order was made in favour of A and B in January 2014. A and B are no longer in contact with V, their relationship with her having broken down.
  4. A and B wished to have further children using the gametes of the woman who had donated the eggs for the conception of the twins. They sought a different surrogate to help them in the process, and were introduced to X.
  5. It is at this point that matters became even more complicated. X was implanted with two embryos in October 2014. However, one of the foetuses miscarried in December 2014, leaving only Z. X then told A and B that she had miscarried both foetuses, and it was not until May 2015 that they were told the truth.
  6. In June 2015 X gave birth to Z. It being apparent that X was not prepared to let A and B look after Z, they had made an application to court for orders requiring that.
  7. The application was heard by Ms Justice Russell in June 2016. She ordered that Z should live with X and P, and should spend time with A and B every two months. P acquired parental responsibility by virtue of the judge’s order, but she refused to grant parental responsibility to B.
  8. A and B appealed, seeking to gain an order that Z should live with them, and that B should have parental responsibility for him (the latter point was conceded by X during the appeal hearing). The appeal was heard by the Court of Appeal on the 2nd March, and the Court of Appeal’s judgment was handed down on 6th April, Lady Justice Black giving the leading judgment.

Very briefly, the reasons for Ms Justice Russell making the order that she did were as follows. She had made adverse findings against A and B, in particular being very critical of the way they had treated X, showing her a lack of consideration, concern and respect. She had received expert evidence to the effect that it was important to take care of Z’s “identity needs”, and that the place of X in Z’s life was crucial to his sense of identity, and she accepted the guardian’s concerns that if Z were placed with A and B, his contact with X would not be given the priority that his best interests required. She also found that X was better placed to meet Z’s emotional needs.

A and B put forward several grounds for the appeal, but the primary one was that Ms Justice Russell had “failed to address the long term welfare decisions about Z in a holistic way and to carry out a proper balancing exercise when engaging in the welfare analysis of Z’s needs”. Various arguments were put forward to support this contention, including that Ms Justice Russell had given insufficient weight to A and B’s positive characteristics and X’s negative characteristics, and that she had failed to consider the benefits to Z of living with his biological father, step-father and siblings. Lady Justice Black was not, however, persuaded by any of this, saying that:

“The judge’s welfare analysis was, in my view, a proper consideration of the realistic options for Z, in which she weighed and balanced all the relevant factors in relation to A and B on the one hand and X and P on the other, and reached a decision on the basis of what was in Z’s overall best interests.”

Accordingly, the appeal was dismissed, save in relation to giving parental responsibility for Z to B.

Lord Justice Flaux gave a consenting judgment.

The full report of Re M can be read here.

Image by DaveBleasdale via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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