AZ (A Child) (Recusal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Baker,Lady Justice Whipple |
| Judgment Date | 05 July 2022 |
| Neutral Citation | [2022] EWCA Civ 911 |
| Docket Number | Case No: CA-2021-001878 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 911
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Baker
and
Lady Justice Whipple
Case No: CA-2021-001878
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Keehan
WV19F00188
Royal Courts of Justice
Strand, London, WC2A 2LL
Shiva Ancliffe QC and Sham Uddin (instructed by Duncan Lewis) for the Appellant
Tom Wilson (instructed by Shoosmiths) for the First Respondent
Timothy Bowe (instructed by Glaisyers) for the Second Respondent (written submissions)
Hearing dates: 4 May 2022
APPROVED JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 5 July 2022.
Lord Justice Underhill, Lord Justice Baker and
INTRODUCTION
This is the judgment of the Court to which all its members have contributed.
It concerns an appeal against the refusal by Keehan J of an application to recuse himself made during a hearing in long-running private law proceedings under the Children Act 1989 about a boy, A, now aged four. At an earlier hearing when Peter Jackson LJ granted permission to appeal, the appellant, A's mother, made it clear that she was not inviting the Court to set aside the order made at the end of the hearing during which the recusal application was made. Rather, she sought an order that the judge would be recused from sitting on the next, and final, hearing in the proceedings, which were listed to start on 23 May 2022.
In view of the imminence of that hearing, having taken time to consider the merits, we informed the parties a few days after the hearing before us that we had decided to dismiss the appeal for reasons which would be given at a later date. This judgment sets out the reasons for our decision.
THE FACTUAL AND PROCEDURAL BACKGROUND
The following summary is taken substantially from earlier judgments in these proceedings, none of which have been the subject of an appeal.
FACTUAL BACKGROUND
A's parents met and married in 2009. After the mother had sadly suffered a series of miscarriages, they decided to try to have a child via a surrogacy arrangement. In April 2017, they entered into an arrangement with a surrogacy agency in Ukraine. In June of that year, they signed a written surrogacy agreement with a woman in Ukraine to whom they had been introduced by the agency. Thereafter, the process of creating an embryo started with the father providing sperm which was inserted into an egg provided by the donor. On 5 August 2017, the embryo was implanted into the surrogate mother.
At about the same time, the mother, with the father's knowledge and agreement, sent an email to the director of the agency asking if the father's unused genetic material could be stored for five months while they awaited the progress of the course of treatment then underway.
Ultrasound examination of the surrogate confirmed that she was pregnant and the parents returned to this country. On 21 November 2017, without informing the father, she sent an email to the director of the Ukrainian surrogacy agency enquiring about the possibility of using the remaining embryos for a second surrogacy. The director replied proposing that the parents execute a power of attorney authorising the agency's lawyer to sign the necessary papers.
On 7 December 2017, the mother and father executed a power of attorney authorising the surrogacy agency to sign documents on their behalf. It was the father's case in these proceedings, accepted by the judge, that he was told by the mother that the purpose of the power of attorney was to assist with the registration of the expected child's birth and obtaining a passport.
The surrogate gave birth to A in Ukraine in April 2018. The baby was handed over to the parents shortly after birth.
A few weeks later, the director of the surrogacy agency sent an email to the mother enclosing a copy of a second surrogacy agreement. The mother replied asking the director not to discuss the second agreement with the father, asserting that he found it difficult to discuss the matter because of concerns about miscarriages. On 24 April 2018, the second surrogacy document between the agency and the parents was signed. The judge subsequently found that the father's signature had been forged.
On 7 July 2018, the parents flew back to this country with A. On 12 July they filed an application for a parental order under s.54 of the Human Fertilisation and Embryology Act 2008. By this stage, however, there were difficulties in the parties' relationship. On 23 July, the mother left the family home with A and the following day transferred £60,000 from the parents' joint account into her own account. A few weeks later, she and the child returned to the home and thereafter the parents attended couples counselling. Meanwhile, the parental order reporting officer carried out inquiries in accordance with the regulations and visited the family on several occasions. The mother did not inform the officer of the second surrogacy arrangement.
Meanwhile, another woman in Ukraine had been identified by the agency to act as the surrogate under the agreement. On 25 October 2018, a further surrogacy agreement was signed between the parents and the second surrogate. The agency's lawyer signed the agreement on behalf of the parents using the power of attorney which they had signed December 2017. The director of the agency sent an email to the mother that the agreement had been signed and enclosing a scanned copy. The email was neither copied nor forwarded to the father. On 9 January 2019, an ultrasound scan confirmed that the second surrogate was pregnant and that she was carrying twins.
It was the father's case accepted by the judge that it was not until 5 March 2019 that the mother informed him about the second surrogacy. On the same day, he telephoned the agency in Ukraine making enquiries about it. On the following day, the mother reported to the police that she had been assaulted by the father on 3 February 2019. She changed the locks of the family home to prevent the father gaining entry. On 15 March 2019, the mother made a without notice application for a non-molestation order against the father which was granted by a deputy district judge on 18 March. On 22 March 2019, the father applied for a child arrangements order in respect of A. No contact took place between the father and the child until a hearing in June 2019 when it was agreed that contact would start on a supervised basis. Meanwhile, in a further exchange of emails with the agency in Ukraine, the mother renewed her request to the director only to communicate with her and let her know if the father or someone on his behalf contacted the agency.
On 5 August 2019, the second surrogate in Ukraine gave birth to twins, a girl and a boy. For the next few months, the mother divided her time between caring for A in this country and travelling to the Ukraine to look after the twins. During this period, the father's contact with A was extended by a court order and by the end of the year A was having regular overnight stays with his father.
LITIGATION BACKGROUND
The three court applications (the joint application for a parental order, the mother's application for non-molestation and occupation orders, and the father's application for a child arrangements order) were listed for a composite fact-finding and welfare hearing over five days in January 2020. At the conclusion of the hearing, only the evidence relating to the fact-finding element of the hearing had been completed. The judge therefore adjourned for written submissions on that element, after which a reserved judgment would be delivered to be followed by a further hearing to determine the welfare issues. On 6 April 2020, prior to the delivery of the reserved judgment, the mother brought the twins to this country from Ukraine. At that stage, A moved to live principally with his father, and had regular weekly contact with his mother.
First Judgment
On 17 April 2020, the judge handed down his first judgment in these proceedings. Having summarised the background, the law and the evidence, he started his analysis by recording his impression of the parents' evidence (at paragraph 103):
“I found the father to be a measured and sincere witness who gave evidence in clear and precise terms, albeit he became very emotional when speaking about A. I regret to observe that I found the mother to be a most unsatisfactory witness who lied to the court in key parts of her evidence.”
He observed that the principal issue to be determined was whether the father knew about the second surrogacy agreement. The mother's case that the father had known of and consented to it was supported to some extent by the evidence of the director of the Ukrainian surrogacy agency. The judge found that the mother had lied extensively in her evidence about the second agreement. He said (at paragraph 115(vii)):
“the mother has serially lied in her evidence. I find no innocent explanation for these lies. She is, I find, a wholly unreliable witness who will tell lies with alacrity to achieve her objectives.”
The judge also found the director of the agency to be “a most unsatisfactory and ultimately unreliable witness” who had in some respects been untruthful in her evidence. He concluded that the father had not signed the agreement; that the mother had deliberately concealed the second surrogacy from the father until 5 March 2019 when it was too late for him to do anything about it because the surrogate's pregnancy was so far advanced; that the father had not consented to the extension of the period of...
To continue reading
Request your trial
-
Flowers Development Company Ltd v The Bahamas Telecommunications Company Ltd
...Pegler and others v McDonald and another [2022] EWHC 2288 considered R v Kamoli and others — [2022] 2 LRC 573 considered Re AZ (a child) (recusal) [2022] EWCA Civ 911 considered Save Guana Cay Reef Assn Ltd and Others v R and Others [2010] 2 LRC 530 considered St. George at al v Hayward e......
-
R (Upon the application of Lehram Capital Investments Ltd) v Southwark Crown Court
...recently summarised in H (A Child) (Recusal) [2023] EWCA Civ 860 (the principles are well-settled and not controversial): “24. In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911, [2022] 1 WLR 78 at paragraph 54, this Court observed: ‘… case law has established that an appellate challenge to......
-
H (A Child) (Recusal)
...against Newton J's order, which she amended on 12 April. Permission to appeal was granted on the papers on 5 May. The law 24 In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911, [2022] 1 WLR 78 at paragraph 54, this Court observed: “case law has established that an appellate challenge to the ......
-
K and L (Children: Fairness of Hearing)
...and bias 20 It is convenient to start with the last ground of appeal which was the principal focus of the appeal hearing. 21 In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911 at paragraph 54 and 55, this Court observed: “case law has established that an appellate challenge to the conduct of......