Re N
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Lloyd,Lord Justice Toulson |
| Judgment Date | 25 July 2007 |
| Neutral Citation | [2007] EWCA Civ 1053 |
| Date | 25 July 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/1557 |
[2007] EWCA Civ 1053
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER DISTRICT REGISTRY
(MR JUSTICE COLERIDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Lloyd and
Lord Justice Toulson
Case No: B4/2007/1557
Mr Wildblood QC (instructed by John Hodge Solicitors) appeared on behalf of the Appellant.
Miss Hamilton QC (instructed by Messrs Marsden Rawsthorn) appeared on behalf of the Respondent.
On 10 July Coleridge J handed down judgment in Exeter following some four and a half days of evidence and submissions which he had heard in Plymouth in the second half of June. The case was highly unusual on its facts but, in the end, involved a straightforward choice between two families contending for the responsibility to bring up N for the remainder of his childhood. N is approximately 18 months of age and he was born to Mrs P who, with her husband, were what might be said to be the first contenders, since they had cared for N over the first 18 months of his life and had clearly given him high standards of care. The rival contenders were Mr SJ, the biological father, together with his wife, TR. For convenience the judge throughout referred to one camp as the P's and the other camp as the J's.
There were other issues in the case for which the judge made preparations, he having had case management from the outset, and principally they related to another child of Mrs P, C, for whom there was again contention between the P's and C's biological father, Mr R. That consolidated case settled shortly before the fixture, and accordingly all the concentration was upon N.
The unusual feature of the case, and the feature that caused the judge much anxious consideration, is that N was born as a result of a surrogacy agreement between Mrs P and Mr J. The circumstances surrounding the failure of that agreement, and its plain breach by Mrs P, were closely investigated by the judge, and were the subject of findings, forming part of the judge's conclusions on a schedule that had been directed at an earlier stage in the litigation, when it was contemplated that there would be split hearings: a preliminary fact-finding hearing in December to establish the factual foundation, which would in due course have been followed by what is sometime known as the disposal hearing. In the event the two stages were consolidated into one, and the June hearing was marshalled to enable the judge to address the contested factual issues within the schedule, and then to exercise his discretionary judgment to settle N's future.
The judge's findings in relation to the history are perhaps largely superfluous for this afternoon's disposal of the appeal, but in very broad terms he rejected the evidence of the P's and commended the responsibility of the J's. In particular, and crucially, he found that the P's had deliberately embarked on a path of deception, driven by Mrs P's compulsive desire to bear a child or further children, and that she had never had any other objective than to obtain insemination by surrogacy, with the single purpose of acquiring for herself, and her family, another child. This was crucially important, since it informed the review of the experts and the review of the judge of the medium and long-term future of N, if the responsibility for his future care were left with the P's.
The judge had the considerable advantage of two reports from Dr Eia Asen of the Marlborough Day Clinic. His expertise in this field forensic child and adolescent psychiatry, is second to none, and the judge was clearly guided by him to his ultimate conclusion. Dr Arsen had been instructed by the guardian ad litem, and the guardian ad litem fully supported Dr Arsen's conclusions, as well as expressing her independent expert view that, of the two options that the judge surveyed, the better for N was the future offered by the J's. So, given those ingredients, the judge's ultimate conclusion could not have been surprising to any of the professionals in the case, even if it was unexpected by the P's.
Mr Stephen Wildblood QC, who has conducted a difficult case on behalf of the P's with conspicuous commitment and ability, applied immediately at the conclusion of the case for permission to appeal. The judge, in response, as Mr Wildblood puts it in his skeleton:
“Recognising that 1) the P's would wish to appeal in any event if the decision went against them and 2) the long vacation is approaching, he gave permission to appeal, with the expressed intention that there should be an expeditious and final resolution of the issues that arise in these proceedings. He stayed the order for transfer of residence but reduced the time for the filing of a Notice of Appeal under part 52.4( 2) CPR 1998 to 4 pm on Friday 13 July 2007.”
I would wish to emphasise the approach adopted by the judge. There are cases in which it is perfectly plain that, whatever may be the prospects, as professionals might assess them, the litigants cannot rest until they have exhausted their legal remedies. Obviously, if there is an application for permission refused by the judge, on the ground that no reasonable prospects of success have been demonstrated, there is then an interval which may be of up to 21 days duration before anything is received in the office here, and then the case worker has to put the papers together, and there may be a delay in getting a skeleton or a transcript, and then the papers have to be submitted to a single judge, and there may be delay in his consideration of the papers, particularly with a long vacation approaching. The net consequence of which may be that...
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