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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H (A Child : Surrogacy Breakdown)  EWCA Civ 1798 (17 November 2017)
Cite as:  EWCA Civ 1798
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ON APPEAL FROM THE HIGH COURT
MRS JUSTICE THEIS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOLROYDE
LORD JUSTICE PETER JACKSON
| H (A Child)
Re H (Surrogacy Breakdown)
Deirdre Fottrell QC and Thomas Wilson (instructed by Goodman Ray Solicitors) for the
Seamus Kearney (instructed by Cafcass Legal) for the 2nd Respondent
Hearing date : 12 October 2017
Crown Copyright ©
(i) We reaffirm the position stated by this court in the surrogacy case Re N (a Child)  EWCA Civ 1053. The essential question in every case is: all things considered, which outcome will be best for the child? The law does not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures. The welfare principle applies with full force in such cases; indeed, the more unusual the facts, the greater the need to keep the child at the heart of the decision, and to ensure that the interests of others prevail only where they are in harmony with the interests of the child.
(ii) Although the appeal was trailed as involving novel legal issues about the interface between the Human Fertilisation and Embryology Act 2008 and the Children Act 1989, on examination these issues fell away and the argument ultimately boiled down to the question of whether the Judge erred in her evaluation of the evidence.
(iii) As to that, our view is that the Judge rightly took a conventional welfare approach to an unconventional family structure. Her decisions about where the child should live (not appealed) and about the role that should be played by the other family (the focus of this appeal) were ones that she was entitled to reach on the evidence before her.
"C and D have five children of their own and C has twice been a gestational surrogate before. The parties met online for the first time in April 2015. They signed a surrogacy agreement in August 2015. C and A travelled to a clinic in Cyprus in September 2015 for the embryo transfer, using embryos created from A and B's sperm and a donor egg from a Spanish egg donor which resulted in C's pregnancy with H. A DNA test later confirmed A's paternity.
In circumstances which are disputed, the relationship between the parties deteriorated in February 2016, to the extent that, by early March 2016, there was no communication between them. C's health had deteriorated due to difficulties with her back and she had to have keyhole surgery in January 2016.
At some point in late March 2016, C and D sought legal advice and decided that they were not going to hand over the child to A and B, as had been agreed between the parties as recorded in the agreement they signed in August 2015. At this time, A and B were seeking to establish contact with C, but with no response.
C gave birth to H in late April. It was a difficult birth and both she and H suffered ill-health immediately afterwards. They remained in hospital until 6th May 2016. The day before H's birth, C and D's then solicitor had written to A and B to inform them that they were not prepared to follow their surrogacy agreement and would not be giving their consent to a parental order.
Even though there had been some correspondence with solicitors for the 10 days following H's birth, it was not until about 10th May 2016 that A and B were first informed of the birth. By that stage, C and D had registered H's birth with the name they had chosen rather than the name chosen by A and B. C and D's account for this delay in informing A and B is that it was due to the ill-health of C and E.
Not surprisingly, A and B immediately issued legal proceedings following which arrangements for contact were made, and those arrangements increased to a shared care arrangement which has been in existence pending this hearing to determine the future care of H."
The legal setting
The Judge's decision
"105. I agree that the management of the day to day parental responsibility should be as set out in para. 2(iii) of the closing submissions of Ms Fottrell. Those arrangements will give security in relation to the day to day planning and management of H's life.
106. In relation to contact, I accept the recommendation made by [the Guardian] that contact should be on six occasions a year. I agree with her analysis that this will enable H's primary attachments to consolidate. Bearing in mind the history, any higher frequency at this stage risks further undermining of A and B's ability to care for H, which in turn gives rise to the risk of future emotional harm. I am satisfied A and B will promote H's relationship with C and D. There should be discussions between the parties after this judgement regarding any arrangements for Skype or indirect contact between contacts."
The Judge concluded by approving a change of H's name to reflect each of the adult surnames, by acknowledging how difficult the hearing had been, and by hoping that everyone would now look to the future and work in a way that meets H's needs.
a. her clients should make the day-to-day decisions in respect of H
b. they should decide on schooling, medical treatment and other parenting decisions
c. they could remove H from the jurisdiction for longer than a month, subject to notifying C and D of the destination and travel plans. (Ms Fottrell's opening submission made clear that this was to allow for extended holidays, not emigration.)
The submissions on appeal
(1) By limiting their clients' contact and fettering their parental responsibility, the Judge has effectively made a parental order in all but name.
(2) The Judge should have striven to provide H with two homes and four parents. Instead, she undertook no detailed analysis of the purpose of contact, neglected the Article 8 rights involved, and failed to explain why a level of 'identity contact' that marginalises C and D is necessary or proportionate.
(3) The criticism of C and D for being rigid in wanting their legal child to live with them was unwarranted, and the Judge did not fairly balance it against the undoubted shortcomings of A and B. This imbalance reflected the Judge's treatment of the case as "a surrogacy gone wrong", rather than a case to be approached on normal principles. It led her to adopt a punitive approach towards C and D for having withdrawn from the arrangement.
(4) With reference to the parental involvement presumption at s.1(2A) Children Act 1989, the Judge should have treated the case like any other case of parental breakdown, where separated parents are reminded of the duties, and where the court has powers to support and enforce its orders.
(5) The specific issue orders in relation to the exercise of parental responsibility and travel abroad are too wide and insufficiently precise.
(1) We cannot agree that the Judge's order was equivalent to the making of a parental order. A parental order is transformative. It leaves the surrogate with no rights, and no right to apply to court. It would not provide for ongoing contact. Instead, in the very first paragraph of her judgment, the Judge expressed the hope that "each adult will recognise the role they have and the contribution they will make to H's future". In characterising the Judge's order as they do, the Appellants are aiming at a target of their own making.
(2) Likewise, we were not impressed by the submission that the Judge was obliged to strive to provide H with two homes and four functioning parents. Even without the clear evidence of the Guardian, it would have been obvious that it was not likely to be in H's interests to have more than one secure home base, and one couple who could be clearly identified as parents. In consequence, there was inevitably going to be a radical reduction in the amount of time spent in the other home, however painful that would surely be. This was, in legal language, necessary and proportionate. In our view, the Judge could not have been criticised had she chosen a lower level of contact, but she was certainly entitled to accept the evidence of the Guardian. Nor do we accept that the level of contact could fairly be described as 'identity contact', an expression generally used to describe meetings once or twice a year that are just sufficient for a child to know who a relative is, but insufficient to allow a relationship to develop.
(3) We understand how C and D feel that in comparison to the criticism directed at themselves, A and B escaped lightly. However, we read the focus of the Judge's concern as relating less to what had happened in the past and more to the respective couples' ability to respond. She was not critical of C and D for wanting to keep H, or of A and B for wanting H to return to them. She repeatedly acknowledged the love that all four adults felt for the child, but she was clear that one of the couples was better placed than the other to negotiate the challenges of the future. This was an important finding, which was clearly open to her on the evidence. We see no sign that she arrived at it in a way that was punitive towards C and D; rather she assessed the evidence for what it told her about parenting capacity.
(4) Ms Markham rightly advocated that universally applicable principles should inform the approach to issues of parental responsibility and contact. For that very reason we, like the Judge, do not find it helpful to draw an analogy with a conventional case of separated parents. The law is the same but, as the Judge said, each case is different, different considerations apply and the court needs to analyse and carefully weigh those considerations. The range of family situations is unending and the difficult task of identifying the right solution for a particular child is not helped by imposing a template forged in an entirely different context.
(5) We agree that the orders in relation to the exercise of parental responsibility and travel abroad might have been more fully and accurately expressed. The sequence of events following the delivery of the judgment was overshadowed by the transfer of H's care and seem to have led to these aspects not receiving the attention that they might have done. This observation does not invalidate the orders as they stand, but during the course of the hearing we invited the parties to supplement them, ideally by way of a parenting plan, as part of their ongoing sharing of parental responsibility.
"This case is another example of the complex consequences that can arise from entering into this type of arrangement. Even though C was an experienced surrogate, this case demonstrates the risks involved when parties reach agreement to conceive a child which, if it goes wrong, can cause huge distress to all concerned. For all the adults involved, who all clearly love H, the one thing I know they will agree is that their dispute and this contested litigation has been a harrowing experience for them all. This case is another example of the consequences of not having a properly supported and regulated framework to underpin arrangements of this kind."