Re A

JurisdictionEngland & Wales
JudgeHer Honour Judge Matthews QC,Her Honour Judge Matthews
Judgment Date13 June 2014
CourtFamily Court
Date13 June 2014
Docket NumberCase No. MB14C00196

[2014] EWFC C55


Russell Street




Her Honour Judge Matthews QC sitting s.9 as a Deputy Judge of the High Court Family Division

Case No. MB14C00196

Re A

No. of folios in transcript: 263

No. of words in transcript: 18,942

'This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.'

Her Honour Judge Matthews QC

A was born in 2013 and is now one year of age. She is a little girl who is a product of a partial surrogacy agreement between her biological father, JD, 43 years of age, and his partner, AC, 47 years of age, and her biological surrogate mother, Wendy, 27 years. The adults met via an internet website upon which Wendy had posted her details effectively offering herself as a surrogate. AC saw those details and contacted Wendy and the matter swiftly proceeded from there. I will rehearse the matter in more detail in due course but, very briefly, an arrangement was reached between Wendy, AC and JD in 2012 that Wendy would carry a child for them using her own egg and JD's sperm.


When A was born she was handed over to JD and AC shortly afterwards. There is a substantial dispute between the parties as to what contact was to take place between Wendy and A thereafter. The relationship between the parties deteriorated after handover, particularly as a result, seemingly, of Wendy not knowing that the couple had left Lincolnshire where she thought they resided and also a dispute about money and perhaps ongoing contact to A.


JD and AC applied to the court for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 on 10th July 2013. This application was opposed by Wendy; she also applied for residence and contact on 16th July 2013. As a result of the lack of consent from Wendy, JD and AC changed their application to one of residence. In due course, after the involvement of the appointed CAFCASS officer, the local authority hereafter referred to as 'local authority' in this judgment, being North Yorkshire County Council, issued care proceedings and subsequently placement order proceedings. The care plan of the local authority is for permanent placement by way of adoption outside her natural family. A remains living with her father, JD, and AC at the date of this judgment. Paternity testing has confirmed that A's biological father is JD and her mother is Wendy.


The first application in time was that of JD and AC for the parental order. When it became clear that this order could no longer be granted, they changed their application to seek a Residence Order. The second application in time was for a Residence Order by mother. The application for Residence by JD and AC was made on the basis that they did not intend to promote any contact at all to natural mother, Wendy.


The CAFCASS officer, filed a report on 16th October 2013 in which she suggested that the local authority should prepare a report under section 37 of the Children Act 1989. This report was filed on 3rd February 2014 and indicated that the local authority would be issuing a care order application very shortly. The local authority indeed applied for a care order on 7th February 2014; that is set out at B1 to 17 [Page numbers are references to the Court bundles]. This was followed by an application for a placement order; that is set out at at H1 to 8.


I have had consistent management of the proceedings since the matter was transferred to this court by Mr. Justice Jonathan Baker. I directed that the applications be consolidated and be heard on 7th April 2014 before Mr. Justice Bodey. The trial was subsequently devolved to me and commenced on 6th April 2014. The original time estimate of four days has evolved into eleven days with a twelfth day for judgment today.


While the case has always been a complex one, the twists and turns of its progress could not have been foreseen by the advocates. By the time of the conclusion of the evidence on 10th June the mother, Wendy, was supporting the care planning of the local authority to place her daughter for adoption. She was no longer seeking a residence order for A in her favour, together with her partner, NC. Her progress to that position will be detailed later in this judgment. The appointed Children's Guardian in the proceedings, supported the local authority care plan for adoption. She said in her evidence to the court that she wanted to endorse, in the strongest terms, everything she had said in her report. No other orders, she thought, than those sought by the local authority would protect this child.


AC and JD finally asked the court to make a residence order jointly in their favour but did not support Wendy as a secondary option rather than adoption as they previously had done. They seemed unclear as to their final position in respect of whether Wendy should have ongoing contact to A in the future if she remained in their care. They were completely against contact at the commencement of the trial; subsequently they converted to a position during the trial whereby they favoured regular monthly contact to Wendy. They seemed to have reverted back to their original position by the conclusion of the trial but seemed unsure.


No party has sought to suggest that if A cannot live with her father and his partner she should reside in long term foster care; nor are there any other family members who are put forward as alternative carers. Therefore, if the threshold criteria is found to be made out, the welfare balancing exercise is to be carried out as between the draconian option of adoption, as a last resort, and that of remaining in the care of father and his partner, AC.


This case represents a tragedy for all concerned but most particularly for the child at its centre. It is a cautionary tale as to what can go wrong in unregulated surrogacy. Such arrangements can no doubt work very well and there are likely to be many happy families in this country where surrogacy has been a success. However, because of the special nature of surrogacy arrangements, they demand mature, balanced and sensitive handling. Surrogacy should not be approached without very considerable and careful reflection in respect of all of the ramifications for the child and the members of the families involved. A child is not a commodity to be bought and sold. This child is an individual for whom the consequences of the arrangements will have a lifelong impact.


The threshold criteria asserted by the local authority is set out at A9 to 12 in the bundle as drafted by counsel. The parties have respectively responded to those documents at A13 to 25. No allegation of past harm relating to A is put forward; the allegations all relate to the alleged risk of future emotional harm. The court is no longer asked to make a parental order and therefore the court is considering the application for the care and placement orders by the local authority at the same time as the residence application by AC and JD. If the threshold for local authority intervention is crossed, the court should pass on to consider what, if any, order is required to meet the welfare of the individual child by applying the welfare checklist criteria set out in section 1 (3) of the Children Act 1989 and the court should then consider making the least interventionist order necessary. The question of what order should be made clearly engages article 8.


When considering whether to make a care order, the court must treat the welfare of the child as the paramount consideration and this involves taking into account, in particular, the factors identified in section 1(3) which include in paragraph (g) therein the range of powers available to the court. A care order is a very extreme order, a last resort, particularly when this results in a child being adopted against the wishes of their parents. In this case one parent effectively consents to the adoption and one does not however the fact that one does not and one wishes to care for the child is the most important feature. The court cannot properly decide that a care order should be made unless the order is proportionate and necessary, bearing in mind the requirements of article 8.


Where the plan is adoption, a high degree of 'justification' is required before such an outcome is endorsed as being 'necessary', as per the European Convention article 8, or indeed 'required', section 52(1)(b) of the Adoption and Children Act 2002.'Necessary', in the words of Hale LJ, means 'where nothing else will do', Re B (A Child) UKSC 33. This should only be where there are exceptional circumstances because the child, of course, has, as far as possible, a right to know and be cared for by his or her parents. I bear in mind all of the guidance of Hale LJ in respect of the need for significant harm to be 'considerable, noteworthy or important' in assessing the circumstances of this case.


I also bear in mind, as Ms Hunt representing AC, quite rightly reminds me, the observations of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, that society must be willing to tolerate very diverse standards of parenting including the eccentric, the barely adequate and the inconsistent. If this were a case in which merely eccentric parenting were the concern I would be the first to point it out and would not waste the court's time...

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