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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H (A Child : Surrogacy Breakdown) [2017] EWCA Civ 1798 (17 November 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1798.html Cite as: [2017] EWCA Civ 1798 |
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2017] EWCA Civ 1798 | ||
2017/0064/FAFMF |
CIVIL
DIVISION)
ON APPEAL FROM THE
HIGH
COURT
FAMILY DIVISION
MRS JUSTICE THEIS
FD16P00259
Strand, London, WC2A 2LL |
||
2017 |
B e f o r e :
LORD JUSTICE
HOLROYDE
and
LORD
JUSTICE PETER JACKSON
____________________
H (A Child) | ||
Re H ( Surrogacy Breakdown) |
____________________
Hannah
Markham QC and Marisa Allman (instructed by Freemans Solicitors) for the Appellant
Deirdre Fottrell QC and Thomas Wilson (instructed by Goodman Ray Solicitors) for the
1st Respondent
Seamus Kearney (instructed by Cafcass Legal) for the 2nd Respondent
Hearing
date : 12 October
2017
____________________
HTML
VERSION OF JUDGMENT
Crown Copyright ©
McFarlane LJ:
Introduction
heard
on 12 October
2017.
breakdown
of an intended
surrogacy
arrangement. When granting permission to appeal, King LJ identified the case as giving rise to issues about the proper approach in such cases.
(i) We reaffirm the position stated by this court in the
surrogacy
case Re N (a
Child)
[2007]
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.
The background
H,
who was seven months old at the time of the
hearing
before the Judge.
H's
future was contested between two couples who
had
entered into a
surrogacy
arrangement. In this judgment, we call the first couple, male same-sex partners, A and B, and the second couple, a
heterosexual
married couple, C and D.
history
was concisely set out by the Judge:
"C and Dhave
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'shealth
![]()
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 tohand
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 toH
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 therehad
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 whichhas
been in existence pending this
hearing
to determine the future care of
H."
surrogacy
and intended
surrogacy
is unequalled,
had
conduct of the proceedings from a very early stage. The final
hearing,
which lasted for four days, was the sixth occasion on which the case
had
come before
her.
She
heard
evidence from the four adults and from the
Children's
Guardian, who
had
filed two reports. The fundamental question concerned where
H
should live. Once that was decided, the remaining questions were (a)
how
much contact there should be between
H
and the other couple, and (b) the extent to which that couple should be able to exercise parental responsibility.
H,
through the
Children's
Guardian, was represented by Ms Logan before the Judge, and by Mr Kearney in opposition to the appeal. At the trial, and before us, A and B were represented by Ms Fottrell QC and Mr Wilson, while C and D were represented by Ms Markham QC and Ms Allman. They and their respective solicitors (Goodman Ray and Freemans)
have
acted pro bono on this appeal, and we express our appreciation for their altruism and for the way in which the case
has
been prepared and argued by all parties.
The legal setting
has
no genetic connection to
H,
as gestational mother she is the
child's
legal mother: s.33(1)
HFEA
2008. Likewise, although D
has
no genetic connection to
H,
as C's
husband
he
is to be treated as the
child's
legal father: s.35(1). C and D are therefore
H's
only legal parents. That situation could only change on the making of a parental order under s.54 of the 2008 Act or an adoption order.
child
arrangements order under s.8
Children
Act 1989 providing for
H
to live with them for part of the time, a position cemented by the final
child
arrangements order in their favour. Accordingly,
H
now
has
two legal parents and four adults who
have
parental responsibility.
child
was born they would cooperate in obtaining a parental order in favour of A and B. This would
have
had
the effect of transferring legal parenthood from one couple to the other.
However,
surrogacy
arrangements are unenforceable (s.1A
Surrogacy
Arrangements Act 1985) and parental orders are unique as they can only be made if the legal parents unconditionally agree: s.54(6) of the 2008 Act. Further, a mother's agreement will be ineffective if given less than six weeks after the
child's
birth: s.54(7).
had
the right "to change their minds and keep
H".
It is undoubtedly correct that a surrogate mother
has
the right to change
her
mind, but Ms Markham wisely withdrew from the submission that such a mother also
had
the right to
have
her
own way about where the
child
should live. She was also forced to concede that, while the six-week "cooling off" period protects a mother in relation to the important issue of consent to a parental order, it tells one nothing about what the best welfare arrangements for the
child
will be after birth. That will depend on the circumstances, which will include, in addition to the factors in the CA 1989 s.1(3) checklist, the
child's
gestational and legal parentage,
his
or
her
genetic relationships and the manner in which the intended
surrogacy
came about.
Professional advice
H's
home,
the
Children's
Guardian favoured the claim of A and B. In
her
first report, she recognised that
H's
ordinary physical, emotional and educational needs could be met by any of the parties, but she considered that the more complex emotional needs of a
child
born in these circumstances may not be fully met by C and D. She considered that A and B were more likely to promote C and D's role in
H's
life positively than if the arrangements were the other way around. She was concerned about C and D not accepting B as a valid parent. She found them less able to look at matters from the
child's
point of view. She therefore recommended that
H
should live with A and B and
have
visiting contact every three weeks with C and D. Longer periods of contact might be possible when
H
was about two years old.
her
second report, the Guardian modified
her
recommendation about contact. She remained concerned about the continuation of what she saw as undermining behaviour on the part of C and D. She advised that it would be emotionally
harmful
for
H
to move regularly between the two
homes.
The need for knowledge of the birth family
had
to be balanced against the need for emotional stability. Contact should therefore take place six times a year.
The Judge's decision
H's
main
home.
She directed
herself
with reference to Re N (above) and the well-known decision of the
House
of Lords in Re G (
Children)
[2006] UKHL 43, in which the possible significance of the various types of parenthood – gestational, biological, social and psychological – are considered.
had
behaved in the later stages of the pregnancy and immediately after
H's
birth. She described them as
having
embarked on a deliberate and calculated course of conduct and as
having
continued to put obstacles in the way of A and B in seeking to establish a relationship with
H.
She referred to them as being rigid, taking a position and sticking to it, and as
having
little or no capacity to resolve disputes or negotiate their way through difficulties. She contrasted this with the way in which A and B,
having
behaved in an ill-advised way in their use of social media,
had
tried to mend fences.
H
to live with A and B because (1)
H's
identity needs as a
child
of gay intended parents would be best met by living with a genetic parent, (2) A and B could meet
H's
day-to-day needs in an attuned way, (3) A and B were best able to promote the relationship with C and D,
having
remained positive about their significance despite the difficulties, and (4) C and D were unlikely to significantly change their views about A and B.
H
moved to live full-time with A and B two days later.
"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 ofH'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 withher
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.
had
advocated specific issue orders that:
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.)
had
before
her
other proposals in relation to these matters from Ms Markham and from Ms Logan for the Guardian. Ms Markham's closing submission at paragraph 56(v)-(xi) set out a tighter, more detailed set of requirements. Ms Logan's position was that there should be consultation about major medical procedures or any other radical changes in
H's
circumstances.
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.
surrogacy
legislation are of no legal relevance once a surrogate makes the decision not to abide by the arrangement. At that point the case moves into a different legal dimension and falls under the welfare provisions of the
Children
Act. No guidance is needed from this court – the law is clear and each case turns on its facts.
Here,
the Judge made findings that underpin all the elements of
her
decision:
home,
contact, and regulation of parental responsibility. The contact decision was justified by two threads in the evidence: the possibility of conflict and undermining, and the Guardian's evidence on the need for
H's
primary attachments to be supported.
her
evidence on the
child's
need for one
home
and protection from conflict.
Conclusions
(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.
Finally
surrogacy
is a complex area, ethically and legally, and that there are no internationally agreed norms. The subject
has
now been taken up as part of the Law Commission's current programme, and in parting from the case, we endorse the Judge's observations:
"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 achild
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."
hearing,
we were informed that publicity about the case
had,
most unwisely and unaccountably, been generated by A and B that very week. C and D were understandably distressed by this clear breach of agreements that
had
been made in the earlier proceedings. They therefore sought, and were granted, time to consider whether they wanted to amend their grounds of appeal and seek to file fresh evidence with a view to challenging the Judge's determination of where
H should live. We directed A and B to file an immediate statement setting out their contact with the media and use of social media, and this was done. The outcome was that, after reflection, C and D did not seek to amend their grounds of appeal, but at the invitation of all parties, we made an order restraining A and B from generating further publicity about this matter.
_________________