H & B (1st & 2nd Applicants) v S (1st Respondent) M (A Child) (by her Children' Guardian) (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | The Honourable Ms Justice Russell DBE |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] EWFC 36 |
| Docket Number | Case No: FD14P00262 |
| Court | Family Court |
| Date | 30 April 2015 |
[2015] EWFC 36
IN THE FAMILY COURT
(Sitting in the HIGH COURT)
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE CHILDREN AND FAMILIES ACT 2014
AND IN THE MATTER OF M (A Child) (born 27th January 2014)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Justice Russell
Case No: FD14P00262
and
Ms Elizabeth Isaacs QC (instructed by Natalie Gamble Associates) for the 1 st & 2 nd Respondents
Ms Alev Giz (instructed by R A Savage & Co) for the 1 st Respondent
Ms Alison Moore (instructed by Morrison Spowart) for the 2 nd Respondent Child
Orders
127. I shall make Child Arrangement orders in the following terms; M shall live with H and B, by virtue of this order both will have parental responsibility. I will give the parties an opportunity to discuss the frequency of contact; but regret to say that it must be supervised until there is no longer any need.
128. While I accept that M has been living with S and has come to no serious harm I am concerned that S will not be able to accept the decision of the court and there will be conflict around contact and that it is in M's best interests to ameliorate or at least reduce the likelihood of conflict as a result of the court's decision about where M should live. There are two further reasons for this decision, I have remained concerned about the existence of a Romanian passport for M and cannot accept S's word that there is none in existence that without confirmation from the Romanian Embassy which the court has not as yet received. The second reason is that S has not shown that she is able to put M's interests first during contact. S has provoked conflict by filming and recording handovers; by accosting B's mother when M was there and by using all or any device she could think of to try to stop contact from the outset, whether it was breast-feeding or taking M to the GP or to hospital.
129. As S has deliberately flouted court orders in the past I share the concerns of the guardian that she is likely to do so again in the future particularly as she may feel that she has little to gain in obeying the orders made following this judgment. It is a serious and substantial change to have contact supervised and it is one that I have, frankly, struggled with but I have concluded that the protection afforded by contact being supervised is necessary step to reduce conflict and enhance the likelihood of contact being a positive experience for M. I consider that it is necessary to ensure that S does not use contact as a means of continuing the contest for ownership of M and use her mode of parenting to try to undermine the decision of the court as she has in the past and during these proceedings. Moreover it is intended that a regime of supervised contact should not continue for long but that once M is settled and living with the Applicants the parties will be able to reach their own agreement and arrangements over contact which was always the intention of H and B and so that M can spend time with S in a relaxed environment including in S's home.
130. It is part of this decision that the time M will spend with S is for the benefit of M; to help her develop her own sense of identity and her because it forms an important part of her background. It should not be so frequent as to lead to any confusion in the child's mind about where and with whom she lives and who are her main carers; nor should it be so infrequent as to lead to distress or anxiety. M is very young and will settle quickly; the role of S will be more peripheral than it has been in the past and its importance and frequency for M will be dependant on its quality; the purpose of time spent with S is to assist M's security, sense of identity and to enhance a settled existence for her. There will be an order setting out the time M is to spend with S (s11C (1) (iii) CA) and it would be prudent to have a Monitoring Order pursuant to s 11H.
131. In respect of s91 ( 14) CA 1989, time and again the court has been reminded that this power must be used with care, and sparingly, and should be the exception rather than the rule. It is submitted on behalf of the Applicants and the guardian that although there is no history of making unreasonable applications I can be satisfied that the facts go beyond the commonly encountered need for a time to settle to a regime as ordered by the court and the equally common situation where there is animosity between the adults in dispute, and, secondly, I can be satisfied that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain Re S (Contact: Promoting Relationship with Absent Parent) [2004] 1 FLR 1279.
132. In considering this issue I considered, as I was asked to, S's conduct since the order made on 1 st October 2014 and her attempted justification for her repeated non-compliance with the provisions of that order in relation to overnight contact. S submitted that she was placed under duress to agree overnight contact by the extremely experienced counsel who represented her pro-bono at that hearing; the application to appeal was rejected. The fact that S has now accepted that she should abide by court orders must be viewed with some scepticism given her previous breaches of orders.
133. I find that these proceedings were brought about by S' conduct starting with the manner in which she deceived the Applicants about M's conception and that they have been drawn out by S who could have reached some agreement about M's care being shared earlier on. The nature and duration of these proceedings on the Applicant fathers must have been very stressful and was certainly very costly. They have undoubtedly been subjected to the strain and provocation as a result of S's course of behaviour over the currency of the proceedings including her informing H' family in Romania of his sexual orientation and of his relationship with B; S repeated disparagement and allegations about the nature of the relationship between H and B caused personal distress to both men; and her antipathy towards B which caused practical difficulties in contact arrangements.
134. If I were to make an order it would be as a result of S's conduct and the likelihood that if it were to continue it would cause unacceptable strain on H and B; the length of the order is a matter of discretion of the court Re C-R (Children) [2014] EWCA Civ 1627. I would ask that the parties address me further on this once the child arrangements order is finalised and keep in mind that since February S has not made further applications.
135. In respect of M's name. Given the orders that I make and taking into account all the circumstances of the case, including that S registered M's birth without reference to H and did not include any name from the child's father or his family (and I include B in that family), I shall order that M is known by the surname H, but she should retain S as part of her name. H and B can add the name L to her forenames but will continue at present to call her the name she is used to; in due course she will call herself what she wishes.
136. There will be a prohibited steps order prohibiting S from removing M from the jurisdiction without the written consent of H and B. This order will remain in force until M's sixteenth birthday.
Reporting Restriction Order
137. There will be a reporting restriction order to protect the identity of the child and her carers. This is put in place because of the posting on social media early in the proceedings. The judgment will be published in anonomised form.
Hearing dates: 19 th–21 st January 2015 and 18 th & 20 th February 2015
Introduction
This case is about the future arrangements for an infant girl (M) who was born on 27 th January 2014. M was born as the result of artificial or assisted conception and of an agreement, the basis of which is highly contested, between S (the 1 st Respondent and the mother) and H (the 1 st Applicant and the father) and B (the 2 nd Applicant) his partner. H is in a long-term and committed relationship with B and was at the time of conception. H and B contend that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child's life. S says that she and H entered an agreement that excluded B that H would be, in effect, a sperm-donor and that she would take on the role of M's main parent and carer. She described herself and H as being like two heterosexual parents that have a child and are separated. Through out these proceedings S has vociferously rejected B playing any parental role in M's life.
Very sadly this case is another example of how "agreements" between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.
Law
The case consisted of applications by H and B (the Applicants) for parental responsibility and for residence and contact (now child arrangement orders) and of cross-applications by S (the Respondent) for residence and contact. These applications were made under s8 of the Children Act (CA) 1989 in February 2014 prior to the Children and Families Act (CFA) 2014 coming into force. On the 25 th April 2014 Deputy...
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