This judgment was handed down remotely at 2.00PM on 1st August 2024 by circulation to the parties or their representatives by e-mail.
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MRS JUSTICE THEIS DBE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. 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.
Mrs Justice Theis DBE:
Introduction
- This is the second substantive hearing concerning X, age 10, who lives with her father. The mother and X, through her Children's Guardian, Ms Huntington, are the other parties. The parents separated in January 2023. Save for one occasion in April 2024, X has not had direct contact with her mother but has daily indirect contact via facetime and messages.
- The court at this hearing is concerned with three applications. The father and mother have cross applications for child arrangements orders as well as a joint application for a parental order.
- A two day fact finding hearing took place in March 2024, detailed in the written judgment dated 27 March 2024. This hearing was listed to consider final orders in relation to the three applications outlined above.
- X was born as a result of a surrogacy arrangement entered into in the US. The gestational surrogate and her husband, Mr and Mrs Z, have been represented at this hearing.
- The mother has taken no part in this hearing, which was the same position at the fact finding hearing in March 2024. The court has done all it can to secure her engagement and participation in the proceedings. This is despite one of the applications having been made by the mother and a second, the parental order application, being a joint application with the father. For the reasons set out below, I considered no further steps could or should be taken to enable the mother to engage in the proceedings and the hearing proceeded in her absence.
- As well as reading the court bundle, the court heard oral evidence from Dr Willemsen, Clinical Psychologist, the father and the Children's Guardian, Ms Huntington.
- Directions were made for written submissions. The court is very grateful to Ms Fottrell KC, Mr Wilson and Mr Jones for their comprehensive closing written submissions.
Relevant background
- The detailed background is set out in the fact finding judgment (Re X (No 1 Fact Finding) [2024] EWFC 224), which should be read together with this judgment.
- The mother and father met in 2010. They had both been married before.
- According to the father, the mother described herself as a successful lawyer who was about to be appointed as a High Court Judge. On their marriage certificate the mother's occupation was 'High Court Judge'. The mother maintains it was at the father's insistence this occupation was put on the marriage certificate.
- After their marriage they wanted to have children. Following unsuccessful IVF treatment they entered into a surrogacy arrangement in the US with Mr and Mrs Z and used embryos created with the father's sperm and donor eggs. Following X's birth she was placed in the care of the mother and father and came with them, age 2 or 3 months, to live with them in the UK where she has remained. A full time nanny was employed until July 2019.
- In the US the mother and father secured their legal parentage via a process called 'Affirmation of Parental Status', although the father has not been able to find any documents to confirm this. It appears the parents instructed solicitors to make an application for a parental order here but no application was issued. The father states he did not fully understand the implications of not making the application and felt the mother's status as a judge would resolve any difficulties. A later phone call with the solicitor they had instructed at the time led the father to believe the mother was resistant in obtaining a parental order.
- In 2017/early 2018 the parents wished to have another child and entered into a second surrogacy arrangement with Mr and Mrs Z. The embryo was created using different donor eggs and the transfer took place in early 2018. Y was born in November 2018, she experienced some complications at birth resulting in some health issues. Y remained in the care of Mr and Mrs Z for reasons that are disputed between the parents. Mr and Mrs Z adopted Y and she remains in their care. Mrs Z told Ms Huntington that within days of Y's birth the mother had informed her that Y would be placed for adoption and that in response she and her husband put themselves forward as adopters for Y. The father said this was at a time when the mother's behaviour was becoming increasingly erratic, abusive and dishonest as she was being investigated for fraud. The mother maintains she was forced to proceed with the adoption. The father maintains the agreement between the parents not to tell X about Y was broken when the mother informed X of Y and alleged that the mother had been forced to give up Y for adoption.
- In April 2018 the father states he became aware the mother was being investigated for fraud. She was charged with fraud, pleaded guilty in late 2020 and in February 2021 was given a two year suspended sentence. The fraud extended over a number of years, between 2013 to 2017 and involved receipt of housing benefit for a property the mother did not reside in. At about that time, according to the father, he found out the mother was not a judge, describing it as shocking that she had pretended to be one and how he felt foolish for having believed her.
- According to the father, the mother started behaving violently towards him in June 2019, with further incidents described by him in July, August and December 2020 and January, April, August and September 2021. An incident he described in April 2022 took place in front of X and, according to the father, the incidents became more serious in June and July 2022, which included the mother biting his cheek and grabbing his testicles. In November 2022 the father describes an incident when the mother repeatedly hit his face and body and threatened to kill him. The final incident, prior to the parents separation, took place in January 2023 with a sustained attack by the mother on the father in the presence of X when the father eventually called the police. The mother was arrested and the parents have not lived together since.
- The mother went to stay in the parents holiday home in another part of the country and has remained living there since. X has remained living with the father.
- The father issued an application for a non-molestation injunction. A non-molestation order was made in early February 2023 for 6 months. At the same time, unknown to the father, the mother reported the father to the police alleging serious sexual and physical abuse. It was only following disclosure within these proceedings, in late 2023, that the father was made aware of that. He was interviewed by the police in January 2024.
- In February 2023 the mother signed an application to the General Register Office to correct details on the parties marriage certificate from 'High Court Judge' to 'Homemaker' on the basis that she had been the subject of coercive and controlling behaviour by the father. The amendment was made in March 2023. The first the father was aware of this was in February 2024.
- According to the father the mother breached the terms of the non-molestation injunction by trying to contact him or speak to him in March and May 2023.
- In May 2023 the father was contacted by the local authority as a result of a safeguarding enquiry made to them after the mother was reported to have alleged to another parent at the school that the father had sexually assaulted X by having baths with her and masturbating in front of X. The subsequent local authority investigation recommended no further action.
- The cross applications made by the parents for child arrangements orders were initially listed on 10 August 2023. By that time both parents had signed the C51 parental order application on 3 August 2023, which was issued on 21 September 2023.
- Directions made on 10 August 2023 listed the matter for an interim contact hearing on 13 September 2023. According to the father, there had been an incident in mid-August when the mother had confronted the father in a restaurant and been verbally abusive to him. The contact between X and her mother was ordered to be supervised. The mother has not taken up that contact since September 2023.
- As a result of the parental order application being issued the matter was re-allocated to High Court Judge level.
- On 22 November 2023 I made directions setting the matter down for a further hearing on 15 January 2024.
- Up until the hearing on 22 November 2023 the mother engaged with solicitors and was represented by experienced counsel at each hearing, including on 22 November 2023. The mother did not attend the hearing on 15 January 2024 or any future hearings, including the fact finding hearing in March 2024.
- In the judgment dated 27 March 2024, at [53] – [77] I detailed the steps that had been taken to engage the mother in the proceedings and set out the reasons at [77] why I considered the fact finding hearing should proceed.
- At the hearing in March 2024 after having heard the oral evidence of the father, considered the court bundle, detailed submissions on behalf of the father and the Children's Guardian I made findings that the father's schedule of allegations dated 29 January 2024 were established. They included incidents of serious physical and verbal abuse by the mother to the father and I concluded that the allegations made by the mother against the father were not established.
The mother's position
- Since the fact finding hearing the father's solicitors have continued to send all relevant information to the mother via an email address that she is clearly using, as when she chooses to she responds to either the solicitor or the Children's Guardian. For example, sending sick certificates or responding back about issues unrelated to these proceedings, such as arrangements for delivery of her property from the home in London, which she responds to promptly.
- The father's solicitor has prepared a detailed chronology of the communications with the mother since the hearing in March. She has been sent the orders made, reminded of the hearing listed on 18 June 2024 and this hearing in July 2024. When the father and X were staying near to the family holiday home in April 2024 the mother appeared without warning asking to see X. The father agreed, as he felt he had no real choice, for them to spend time together. Throughout the time the regular communication about these proceedings were being sent to the mother and she was not responding she continued to communicate with X twice a day, either through messages or a video call.
- The mother has been sent the court bundle for the directions hearing on 18 June 2024 and for this hearing, both by email and hard copy delivery. The communications have been not only from the father's solicitor, but separately from Ms Huntington, urging and encouraging the mother to engage with the proceedings, all to no avail.
- There is a statement from the father's solicitor setting out the detailed arrangements for delivery of hard copy bundles and by email of the papers for this hearing to the mother and the mother was sent the link for this hearing.
- I am entirely satisfied that the mother is aware of this hearing and has been sent the court bundles, in both electronic and hard copy form. The mother joined the hearing in November 2023 by remote link and so is aware that can be done and the link for this hearing was sent to the email address she still uses.
- As with the hearing in March 2024, I am satisfied this hearing should proceed as the mother is aware of it, has decided not to take part at the same time as she has continued to communicate with X each day. No further steps can be taken, or are suggested should be taken, to enable the mother to take part in these proceedings. X's welfare requires decisions to be made, not only about her legal status regarding the mother and father but also what the arrangements are for her future care.
The evidence
- Since the last substantive hearing the father has provided an updated statement. In addition, the court has the assessment undertaken by Dr Willemsen and the two reports from Ms Huntington.
- Dr Willemsen was able to meet with the father on two occasions and X once. X did not agree to attend a second appointment. The mother did not respond to any communications to meet Dr Willemsen, including an email with a zoom link.
- In his written report Dr Willemsen acknowledges the limitations due to the mother's non-engagement. In his report and oral evidence he was struck by the severity of the acts of abuse which he describes as giving an indication of the 'level and extremity of the violence that occurred in the couple that, at the time, looked after [X]'. He continues 'The violence needs to be understood against the backdrop of what appears to be a pathological deception of the mother. It is at this point not possible to know whether the mother herself believed she was a high court judge…Although the father saw some red flags, he did not adequately act to verify the claims the mother made, until he was accused of having an affair with the nanny…At this point [the father] began to question the narratives he had been provided with over time, and the violence started. It might be possible – and again, I say this with caution, but I think it is important to consider these hypotheses to have a better understanding of [X's] life – that a delusional world and beliefs were formed to give the mother status and acknowledgement but perhaps also to keep her relationship with the father intact.' In his oral evidence he said he regarded 'The level and intensity of the violence is quite exceptional; it was a sophisticated way of [the mother] controlling' which he considers the father is still trying to understand as to why he remained in the relationship. Dr Willemsen considers the father will need to make sense of this, to understand what he did. He considers the father will need psychotherapy for about a year.
- Dr Willemsen believes the father was infatuated to the point where he believed the mother's assertions; they both believed the delusional world view the mother had presented. When the father became more suspicious and the mother suspected the father of having an affair with the nanny, Dr Willemsen's considers the separation was intolerable for the mother who 'either had to feel one with her partner (fully believed) or was desolate and needed violence to regain a sense of self'. Whilst acknowledging he has not been able to see the mother he considers her 'absence from the proceedings may in part relate to the shame she would face when entering reality (the fact-finding), but it is also possible that she is unconsciously protecting herself from facing reality to avoid a mental health breakdown. The delusional system functions to keep psychotic anxieties at bay and when the delusions are challenged too much by reality, there is a risk of a depressive or psychotic breakdown'.
- In his report Dr Willemsen considers the impact the mother's behaviour is having on X which, in his view, may be driven by the same dynamic the father described when he felt he could not extract himself from the relationship with the mother when he felt victim in a domestic violent relationship. In part, Dr Willemsen states, it is the fear of aggression that stops the person in the relationship from thinking. By way of example, the father's description of X's need to be home in time to text her mother is part of the same dynamic in controlling and coercive behaviour by the mother. He considers there is currently 'too high a risk' that the mother will adversely influence X's development and get X drawn into the mother's narrative. Dr Willemsen was asked about the father's evidence when the mother appeared in April 2024 without warning and how he felt ambushed, trapped and had no choice but to allow some contact to take place. He agreed this risked X seeing her mother remain in control and her father being unable to step in.
- Dr Willemsen considers the parents relationship also raises questions about the father's behaviour. The father is still questioning what happened to him, why he stayed in the relationship as long as he did thereby not protecting X from domestic abuse and the mother's intrusions on X. In Dr Willemsen's view, the father needs more than parenting support and considers he should seek psychoanalytic psychotherapy from a British Psychoanalytic Council therapist.
- Dr Willemsen's view is that contact between X and her mother needed to be considerably reduced as he considers X may be 'drawn into her mother's mind, which may, in time, cause unnecessary ambivalent feelings about her father'. He also considers the contact regime is 'not conducive for therapeutic and narrative work that needs to be undertaken'.
- When asked in oral evidence about the level of contact between X and her mother Dr Willemsen recognised the difficulties in this case, including X not wanting any change, but he remained clear that there had to be a reduction to enable any therapy he recommended for X not to be impacted. He considers that X, although resistant to any change, does at one level have some understanding as to why the adults around her are worried.
- As regards the frequency of contact, Dr Willemsen considered direct contact should be reduced to between 4 – 6 times a year, although saw the force of having a period when such contact should be suspended completely.
- As regards the text messages he is concerned about their frequency, describing their current level as a 'straightjacket for the child' although he recognised the difficulties in managing the reduction of such contact. Dr Willemsen was taken to a number of the messages between X and the mother which he agreed had the drumbeat of pressure, he said they were not exchanges it is the mother making demands, with an interchange between making threats and demands and then what was described as 'love bombing', with repeated messages expressing her love for X. In the messages where the mother implores X to tell the Children's Guardian the truth, in reality she is telling the child to tell the Guardian the mother's truth. Dr Willemsen considers that 'robs [X] of her free mind – that is the emotional abuse'. He considers the undermining messages about X's school are also damaging for X.
- Ms Fottrell asked Dr Willemsen what he considered these messages said about the mother's purpose and motivation. Dr Willemsen considers that 'psychologically it is that she can't bear the exclusiveness of the relationship [X] has with her father…it creates envy of the mother. Part of motivation is a wish to destroy it so she does not have to suffer'. He agreed that such manipulation of X to create intimacy of X with her mother was a risk to X. The purpose of the psychotherapy is to separate from her mother so she can protect herself.
- As regards the parental order he considered it important for X to know both the mother and father are her parents and were two people who wanted her. However, he considered that any child arrangements order should reflect that X lives with her father and should limit the mother's parental responsibility. As regards contact he considers that making no order is best for X, whilst he recognises this puts the responsibility on the father he considers X's welfare needs will be best met by her experiencing her father making the right decisions. Dr Willemsen supports the proceedings coming to an conclusion as it would enable the therapeutic work to start.
- In his most recent statement the father describes the impact of these proceedings on him as 'exhausting and distressing'. He sets out how he felt when the mother's car was parked near to where they were staying in April 2024. He described the mother getting out of the car and calling to X. X had not seen her mother in person since September 2023. X ran across to her mother before the father could say anything. X then returned asking if she could have coffee with her mother for 20 minutes. He described feeling ambushed and being placed in an impossible position, he feared to deny the request would make matters worse. He continued in his statement 'I was extremely worried [the mother] may become abusive and even violent towards me if I refused to allow [X] to go with her. it was clear [the mother] had no qualms about breaching the current Child Arrangements Order (allowing her only supervised indirect contact) and the Undertaking, which unsettled me, as I felt if she were content to disregard orders of the court what else would she be prepared to do'.
- The father said he felt he had no choice but to agree. Whilst he was waiting for them to return he received a telephone call from Ms Huntington who informed the father she had been called by the mother to inform her that X was with her with the father's permission. He described what was said by the mother when he went to collect X, what he described as the aggressive comments, threats and accusations from the mother were all said in the presence of X, including how badly he had treated her and the allegations she had made to the police.
- The father notes that some weeks previously Ms Huntington had tried to contact the mother to seek to arrange some supervised contact when the father and X were in the area, but the mother didn't respond.
- In his statement the father sets out the impact on him of the mother's unannounced appearance and her actions in April 2024. In his oral evidence he said X has not raised with him since then anything about the meeting with her mother or what she heard said between her parents.
- In relation to the parental order the father seeks that order to be made stating 'Despite all my concerns about [the mother], she is [X's] mother and will always be. We planned her together and, even following our separation, we both agreed that we should jointly seek a parental order to secure our legal parentage. Despite everything that has happened since, and despite everything found but the court in its fact finding judgment, I still believe that it is best for a parental order to be made that secures [X's] legal parentage with both of us. She will always be her mother and, I hope, will always have a relationship of some sort with her'. In his oral evidence he said the making of the parental order is 'very important from [X's] and his point of view. From his point of view it will give me empowerment dealing with [X] and prevent me being undermined'.
- If the court does make a parental order the father seeks orders that will limit the mother's ability to exercise her parental responsibility to enable him to make the day to day parenting decisions. He says he has no confidence that the mother will be able to co-parent X, and considers the mother's actions demonstrate that she would be incapable of exercising her parental responsibility for X's benefit. In his oral evidence he said this was one of the most important aspects of the orders being sought due to the difficulties in dealing with the mother on a day to day basis.
- In his oral evidence he gave a detailed and insightful description of X's progress at school and her interests outside school. He described how X's contact with her mother works on a day to day basis. They communicate twice a day, generally either exchange message in the morning or after school and have a video call either before or after school. He said the video calls take place in the kitchen and he is in the vicinity. He described one of the impacts on X is her increased anxiety to make the call or text at what he described as the 'appointed time'. He gave a recent example when they were out shopping and may possibly be late getting back, describing X's increased anxiety about the delay and her running back to the house, even though she would not be able to get in until her father arrived. He described X being 'intense' when she gets her mother's message, explaining he meant she typed very quickly. He said X being upset the night before he gave evidence in this hearing, as X understood from Ms Huntington that daily contact with her mother is likely to be reduced. X was very unhappy and said that she 'expects to speak to her mother every day', which was not a term X had used before. X is not aware that the father monitors her messages with her mother. He described X's sensitivity about the issue although he considered she is aware he knows what goes on, saying after a particularly difficult call with her mother X said she didn't want him reporting that. X tells him she was going to call her mother.
- As regards X's schooling he said there were three schools he considered suitable for X to move to in September 2025. They all have entrance exams that will take place in the autumn 2024 and he has arranged tutor support for X over the summer.
- Turning to the options before the court he said he would prefer some contact to be maintained between X and her mother, albeit at a reduced frequency. The father is anxious not to put X's future schooling at risk although he recognised a reduction is going to be difficult. He supported therapy for X but was less enthusiastic about it for himself, he had reservations but has said he would engage. He thought it would be helpful if Ms Huntington could remain involved, as he considers she has established a good relationship with X.
- Ms Huntington has prepared two reports for this hearing, one dealing with the parental order application and the other the child arrangement applications. Ms Huntington has met X on 5 occasions, one was a remote meeting otherwise they have taken place at the family home with the most recent meeting at the Cafcass offices. She describes X as a delightful, sensitive, intelligent and engaging child with varied interests who prefers meeting face to face. In her reports she details the many separate and unsuccessful attempts she has made to engage with and speak to the mother.
- Her report regarding the parental order application makes a clear recommendation that the court should make a parental order. She details the discussions she has had with the father and Mr and Mrs Z, as well as X's school.
- In that report she describes the background to the parents decision to embark on a surrogacy arrangement in the US, the engagement of the services of the Loving Donations agency, through which they were matched with Mr and Mrs Z. Mrs Z was a married second time surrogate with three children of her own. The surrogacy agreement was signed in 2013.
- Ms Huntington considers that despite the resilience X has demonstrated the harmful dynamics of her contact with her mother have introduced confusing and contradictory narratives for her in relation to her parental relationship, their separation and her own birth story. X has not been given a consistent or coherent account regarding her surrogacy birth story. This has been further compounded by the mother sharing a misleading version with X with regard to having carried her in her tummy.
- As to the mother's wishes relating to the court making a parental order Ms Huntington outlines in her report the sole substantive discussion she had with the mother on 1 February 2024, when the mother expressed the view that the father would do everything in his power to destroy the parental order application. Ms Huntington inferred from this that a parental order was something that the mother viewed as desirable and would secure her status as X's mother.
- In her report dealing with the child arrangement applications, Ms Huntington considered the orders that secured X's welfare required X to remain living with her father, reduce the contact X had with her mother, restrict the mother's ability to exercise her parental responsibility and ensure X and the father received therapeutic support.
- Whilst X expressed her love for both parents, in her discussions with X Ms Huntington reported X described her mother involving her in the parent's dispute made X feel obliged to pick a side. Ms Huntington sets out that X 'described her mother repeatedly speaking to her about the parental difficulties and her negative depiction of her father, including assertions that he is a liar, mean, cruel, that he might abandon her, and that he is preventing them from being together.' Ms Huntington continued in her report 'Whilst this does not accord with [X's] experience of her father, it has created doubts in her view of him, thus undermining her trust. [X] told me that her mother can be dismissive of her requests to talk of her requests to talk about something else.' In her report she sets out the conflicted feelings X has about any reduction in her contact with her mother and then acknowledging that twice daily calls with her mother was too frequent.
- As Ms Huntington outlined out in her report, the position the mother currently adopts in X is a conflicting one. 'On the one hand, she has completely withdrawn from her daughter's life as a physical presence, and her lack of engagement in the proceedings has meant that it has not been possible to explore her role in her life going forward. Additionally, [the mother] did not respond to my attempts to facilitate time between them in person. Comparatively, [the mother] remains a dominating presence in [X's] life, which sadly appears often intrusive and detrimental to her wellbeing. The messages from [the mother] to [X] that I have seen are often emotionally manipulative in tone and content, providing a distorted narrative of the parental relationship.
The legal framework
- The relevant statutory provisions that enables the court to make a parental order are set out in s 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008) which provides
(1)On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if—
(a)the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b)the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c)the conditions in subsections (2) to are satisfied.
(2)The applicants must be—
(a)husband and wife,
(b)civil partners of each other, or
(c)two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
(3)Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.
(4)At the time of the application and the making of the order—
(a)the child's home must be with the applicants, and
(b)either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.
(5)At the time of the making of the order both the applicants must have attained the age of 18.
(6)The court must be satisfied that both—
(a)the woman who carried the child, and
(b)any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(7)Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.
(8)The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—
(a)the making of the order,
(b)any agreement required by subsection (6),
(c)the handing over of the child to the applicants, or
(d)the making of arrangements with a view to the making of the order,
unless authorised by the court.
- In the event that those provisions are met, the court is then required to consider whether the lifelong welfare needs of the child, in accordance with s 1 Adoption and Children Act 2002 (ACA 2002), are met if the court makes a parental order.
- The provisions in s 54 have been the subject of a number of previous decisions, as outlined in the submissions below, when they have been considered in factual situations where the court has either had to determine whether the language of s 54 is met or whether that provision can be 'read down' in accordance with the provisions of s 3 Human Rights Act 1998 [HRA 1998] and the principles set out in Ghaidan v Godin-Mendoza [2004] 2 AC 557 where at [32]-[33] the House of Lords explained the scope and limitations of s 3 as follows, per Lord Nicholls:
'32. From this the conclusion which seems inescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under s 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But s 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting s 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation.
33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary s 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, "go with the grain of the legislation". Nor can Parliament have intended that s 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.'
- The former President, Sir James Munby, in Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349, when considering the six month time limit at s54(3), stated as follows between [54] – [61]
54. Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child's welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.
55. Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor's legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor's office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child be barred by such mishap? Let it be assumed, though in truth, and with all respect to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others [2014] EWHC 595 (Fam), namely to provide for the speedy consensual regularisation of the legal parental status of a child's carers following a birth resulting from a surrogacy arrangement; that policy surely does not require section 54(3) to be read as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she referred to as delay over "a protracted period", but that is a different point.
56. I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that "the court may make an order … if … the [relevant] conditions are satisfied." I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.
57. I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.
58. If for some reason that is wrong, if to go that far is in truth to take a step too far, the same conclusion is, in my judgment, amply justified having regard to the Convention. The two key authorities here are the decision of Theis J in A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam), [2012] 2 FLR 145, and the later decision of the Supreme Court in Pomiechowski v District Court of Legnica, Poland and another [2012] UKSC 20, [2012] 1 WLR 1604. Although, as I have pointed out, Theis J founded her analysis on Article 8, whilst the Supreme Court's analysis was based on Article 6, the reasoning in both cases is fundamentally the same: the statute must be 'read down' in such a way as to ensure that the "essence" of the protected right is not impaired and that what is being protected are rights that are "practical and effective" and not "theoretical and illusory."
59. I agree entirely with Theis J's powerful and compelling reasoning. Her focus was on section 54(4)(a), but in my judgment her reasoning applies mutatis mutandis with equal force to section 54(3).
60. I add two things. First, I draw attention to the fact that Theis J was prepared to read down – and in my judgment correctly prepared to read down – section 54(4)(a) to enable her to make a parental order after one of the commissioning parents had died notwithstanding that section 54(4)(a), in contrast it may be noted to section 54(3), seemingly requires the relevant condition to be satisfied both "at the time of the application" and "at the time of … the making of the order." If that degree of 'reading down' is permissible in relation to section 54(4)(a) – and Theis J held that it was, and I respectfully agree – then the lesser degree of 'reading down' required in relation to section 54(3) is surely a fortiori.
61. The other point is this. Theis J focussed on that aspect of Article 8 which protects "family life", but Article 8 also protects "private life", and 'identity', on which she appropriately laid stress, is an important aspect of "private life". So, any application for a parental order implicates both the child's right to "family life" and also the child's right to "private life". The distinction does not matter in the circumstances of the present case (see further below) but I make the point because it is, I suppose, possible to conceive of a case where, on the facts, it might be more difficult or even impossible to demonstrate the existence of "family life."
- The guidance given in that case remains intact, has been applied in other cases in relation to other provisions in s 54 and can be distilled into the following key principles summarised by Ms Fottrell as follows:
(1) Article 8 is engaged in any application for a parental order by intended parents and the child who is the subject matter of the application and any interference with those rights must be proportionate and justified. Those rights are equally engaged if the application is by a sole intended parent, as provided for in s 54A.
(2) The child in question has an established parental relationship with each of the applicants which engages the right to respect for family life and the right to respect for private life in so far as it engages the identity rights of the child.
(3) The primary aim of s 54 is to allow an order to be made which has a transformative effect on the legal relationship between the child and the applicants, consistent with the Court's positive obligation under Article 8 to give legal effect to factual relationships.
(4) The effect of not making an order will be an interference with that family life as the factual relationship will not be recognised by law. The court's responsibility is to guarantee not rights that are theoretical and illusory but rights that are practical and effective.
(5) If the consequences of a purposive construction of the provisions of s54 is that the child's identity with the intended parents is preserved and the child's identity is linked to both parents, the court may consider itself bound to arrive at a conclusion that secures those rights on the combined reading of Article 8 ECHR and Article 8 UNCRC and in accordance with the principles set out in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [32]-[33].
- The application for a child arrangements order is governed by the statutory requirement on the court to only make such orders that meet the welfare needs of the particular child, whose welfare needs are paramount (see s 1 Children Act 1989).
- In relation to restrictions on parental responsibility the Court of Appeal has recently addressed the use of prohibited steps orders to regulate parental responsibility in the decision of Re T-D (Children: Specific Issue Order) [2024] EWCA Civ 793. At [34]-[40], Peter Jackson LJ summarised the key authorities in relation to such orders. At [41]-[42], he explained that:
'41. By its clear terms, the Act provides the court with the broadest and most flexible powers to make welfare decisions. The powers, which are themselves a welfare checklist factor, can be used individually or in combination. No two cases are the same and, where orders are needed, judges should use the powers that Parliament has given them in the way that they think best meets the needs of the case.
42. At the same time, court orders represent an interference with the freedom of parents to make their own decisions and must be used in a way that is proportionate to the presenting problem. The interference must be no more than is necessary to achieve the desired outcome for the child.'
- At [46]-[47], Peter Jackson LJ continued as follows:
'46. In a few cases, conventional, issue-specific Section 8 orders may be inadequate to the scale of the problem, and the court has been driven to go further. Sometimes, using its statutory power, it has removed the parental responsibility of an unmarried father. In other cases, notwithstanding the view expressed by the Law Commission, it has used Section 8 orders to deprive one parent of the right to exercise parental responsibility in one or more broad domains, or altogether. Such a power undoubtedly exists.
47. However, as seen above, these orders have only been made in extreme cases. It is one thing to interfere with a parent's ability to make an individual decision, and another to deprive them of decision-making power more generally. Where a conventional order can be made, it may be disproportionate to go further. In other cases, nothing less will be adequate to protect the welfare of the child.'
Submissions
- Ms Fottrell submits the making of a parental order is possible, in the unusual circumstances of this case, by following well established principles that have been paved out in previous cases. The court, she submits, is not being invited to develop the law in any new or novel way.
- The focus is on the criteria set out in s 54 HFEA 2008. A number of the s 54 criteria are readily established by the evidence. There is evidence of the biological link between the father and X and she was carried by Mrs Z (s54(1)). The parents were married on 25 August 2011 and, while separated, remain married (s54(2)). The father is domiciled in the UK (s54(4)(b) and both parents are over the age of 18 years (s54(5)). Mr and Mrs Z consent to the making of a parental order (s54(6)) and the court should authorise any element of the payments made other than for expenses reasonably incurred (s54(8)).
- The criteria that Ms Fottrell accepts require closer scrutiny are:
(i) Whether this remains an application made by two people (s54(1)) given the mother's disengagement from the proceedings and whether the court can and should make a parental order in favour of an applicant who has disengaged from the proceedings;
(ii) Whether X 'has her home with' both her parents, as required by s54(4)(a);
(iii) The fact that the application is made more than six months after X's birth (s54(3)).
- Ms Fottrell submits the mother's disengagement from the proceedings does not bar the court from making a parental order. Notably, unlike other criteria in s 54, the opening requirement for the application to be made by two people does not require this to be met at the time of the making of the order. This application was made by both parents. It was signed by them both on 3 August 2023. The C51 application form contains the following request by both parents to make a parental order 'Notwithstanding our separation and the ongoing dispute as to child arrangements, we agree that a Parental Order should be made and apply jointly for that order'. At the time it was signed and lodged with the court the mother had solicitors and counsel on the record. The application remains live and at no stage, submits Ms Fottrell, has the mother sought to withdraw it in the way prescribed in rule 29.4 Family Procedure Rules 2010 (FPR 2010), which requires an application to be made to the court to do so.
- Ms Huntington inferred from her discussion with the mother on 1 February 2024 that a parental order was something the mother considered as being desirable to secure her status as X's mother.
- It is accepted the court retains a discretion, through the use of the word 'may' in s 54(1), as to whether to make an order which imposes parentage on the mother without her being present or engaged with the process.
- Turning to the question of X having her home with both parents at the time when the application was issued and at the time when the court is considering making a parental order (s54(4)(a)), Ms Fottrell submits the court has previously taken a broad and flexible approach in interpreting a requirement for a child to have their home with an applicant parent.
- In Re C (A Child: Parental order & Child Arrangements Order)(No2) [2020] EWHC 2141 Keehan J made a parental order in circumstances where he had made serious findings against the mother, namely that she had fabricated allegations of domestic abuse against the father and had covertly commissioned a surrogacy arrangement, using the father's genetic material without his knowledge, and Keehan J limited the mother's contact to four hours per week. At [66] Keehan J set out why he considered s 54(4)(a) was satisfied as follows:
'The term 'home' must be given a wide and purposive interpretation. The authorities make clear that the term is not and should not be restricted to cases where the applicants live together under the same roof. It is the plain intention of the parents that C will be cared for by both of them, albeit not necessarily, and not at present, on the basis of an equal shared care arrangement. Giving a wide and purposive interpretation of the word 'home', I am satisfied that C has his 'home' with the father and the mother.'
- In Re Z (Parental Order: Child's Home) [2021] EWHC 29 (Fam), the child was born in Colombia and cared for in the first three months by both parents, after which one parent had to leave to the country for immigration reasons. Due to the Covid-19 pandemic, the child and other parent travelled to the UK. At the time of the application for a parental order, the child was voluntarily accommodated in local authority foster care pursuant to s.20 CA 1989. One parent was in the UK and another was stranded abroad. At the time of the final hearing, the child had returned to the care of the UK-based parent. The other parent remained abroad. Gwynneth Knowles J found that s.54(4)(a) HFEA 2008 was satisfied, for the reasons explained at [30]-[31]:
'30. In this case, by way of comparison, AB was, during the care proceedings and at the time the application was made, exercising parental responsibility for Z. Z was not the subject of an interim care order and remained accommodated pursuant to s.20 of the Children Act 1989 until she was returned to the care of CD on 30 October 2020. Indeed, prior to the commencement of care proceedings, it is clear that both CD and AB had cared for Z in Colombia and, to that extent, Z's home was with the applicants prior to the application for a parental order being issued. Were it not for the involvement of the local authority, CD and AB would have continued to care for her whilst in this jurisdiction with CD undertaking the daily parenting tasks and AB having contact by phone and internet video.
31. Adopting a wide and purposive interpretation of s.54(4)(a), I am satisfied that Z's home was with the applicants at the time the application was made. She is clearly living with them at the time of the making of the order.'
- Similarly, applying these principles, in Re A (A Child: Surrogacy: Section 54 Criteria) [2021] 1 FLR 357, Keehan J made a parental order in circumstances where the parents separated before the child's birth, the father had indicated an intention to relinquish the child and then reneged on that position, and the father was having only indirect contact with the child. He found that the child's home was with both of the parents and relied on the following factors, which he considered to be of "crucial significance":
a. Prior to the surrogacy arrangement the mother and father were in an enduring
relationship.
b. They wished to have a family and desperately wanted a child of their own.
c. They agreed to pursue a surrogacy arrangement and each provided their gametes to produce embryos for transplantation into the surrogate mother.
d. The child had spent his entire life in the care of the mother.
e. At the time of the joint application in December 2019, both the mother and the father were committed to play key roles in the child's life and both were committed to his care and wellbeing.
f. At the time of the application both the mother and the father had and/or wished to have a close and loving relationship with the child and they were and are committed to work together to promote the welfare best interests of the child throughout his minority and beyond.
g. The mother and the father wished to have their biological status as the child's parents to be recognised in law.
- Within this legal framework Ms Fottrell submits it is a question of fact and the relevant considerations in this case are as follows:
(1) X was conceived with the intention of being the child of both parents.
(2) She lived with both her parents from birth until their separation in January 2023, a period of nearly nine years.
(3) She has not lived with anyone other than her parents
(4) She continues to live with her father
(5)The application was made by both parents after the separation, evidencing a continued joint intention to acquire legal parentage.
(6) Following her parents' separation, X has had ongoing contact with her mother. This was initially direct contact, but has also included ongoing daily contact via messages and phone calls.
(7) X clearly views the mother as her mother and has a loving relationship with her.
(8) X will continue to have contact with her mother and she shall resume direct contact at some point in the future. It is proposed that this be both direct (albeit supervised) and indirect (albeit at a much reduced frequency than at present). As the Guardian describes: 'she has consistently expressed her wish to see and speak to her mother and the importance of that relationship in her life.'
- This analysis, Ms Fottrell submits, reflects the observations of Ms Huntington in her report when she states 'Notwithstanding the difficulties in that relationship, [X's] bond with [the mother] is an established one and based on mutual love and familial history. [The mother] has co-parented with [the father] and played a meaningful role in [X's] life.'
- Ms Fottrell submits the court can either do this by adopting the broad and purposeful interpretation of 'home with' as has been done in the cases outlined above, or by reading down the provision by way of s 3 HRA 1998 to include this broader wording than is in the HFEA 2008 (see Ghaidan v Godin-Mendoza [2004] 2 AC 557 [32]-[33]; Re X (A Child)(Surrogacy: Time Limit) [2015] 1 FLR 349 [52]; A v P (Surrogacy: Parental Order: Death of Applicant) [2012] 2 FLR 145.)
- Ms Fottrell submits a reading down is justified in this case owing to the consequences for the child, in particular for the child's right to identity to be protected. X should not be denied the transformative effect of the parental order due to her mother's conduct. Whilst it is difficult to understand the mother's motivation to absent herself from these proceedings she continues to be X's mother and was committed to making the application. A reading down by interpretating home with broadly, to include X's current circumstances would be compatible with the 'underlying thrust of the legislation' and 'would go with the grain of the legislation' (per Lord Nicholls at [33] in Ghaidan v Godin-Mendoza). In relation to s 54 the intention is to provide legal recognition of a child's established de facto relationships with the two parents who intended to, and did in fact, conceive them through surrogacy. Adopting such an interpretation would not 'change black into white' or remove 'the very core and essence' or 'pith and substance' of what Parliament has enacted, nor depart substantially from a 'cardinal principle' of the legislation (Ghaidan v Godin-Mendoza per Lord Roger at [111] and [116]). Such reading down would not alter the meaning of the legislation, it ensures that X's identity rights are properly respected in the unusual family circumstances in which X finds herself.
- Turning to the six month time limit Ms Fottrell relies upon Re X (ibid) where Sir James Munby P determined that an application made later than six months after the child's birth was not necessarily time-barred. Ms Fottrell submits the father's explanation for the delay is he takes responsibility for not having properly understood the need for a parental order and for not having made an application earlier. He accepts his error of judgment in relying on what he understood at the time to be the mother's legal expertise.
- If the court is satisfied the s 54 criteria are met, Ms Fottrell submits the welfare considerations in favour of making a parental order are compelling and powerful. At present X is not recognised as the legal child of her parents under English law. As set out in G v G (Parental Order: Revocation) [2013] 1 FLR 286 at [33] a parental order 'confers lifelong status on the applicant and deprives those who until then had parental status of that status on a lifelong basis'. The significance of a parent-child relationship is a matter of the utmost importance, as explained by Sir James Munby P in Re L (A Child)(HFEA – Declaration of Non-parentage) [2016] 4 WLR 147 at [31] 'This is not just a matter of status. Transcending even status, it goes to the very identity of the child as a human being, who he is and who his parents are; it is central to his being, whether as an individual or as a member of his family'.
- Turning to the child arrangements applications Ms Fottrell submits there should be an order that X lives with her father. She seeks an order that would severely limit the mother's ability to exercise her parental responsibility in relation to X's schooling, medical treatment, where she should live, passport applications and the instruction of any other professional regarding X. The draft order submitted with her submissions makes clear such an order does not absolve the father from his obligation to inform the mother of any home move that involves X or any significant medical treatment that X may undergo. She submits X's welfare requires such an order to be made due to the history of the way the mother has not engaged with making decisions about X's day to day needs. In the particular and unusual circumstances of this case the father should have the ability, unhindered by the mother, to exercise parental responsibility in relation to X.
- Turning to the difficult issue regarding ongoing contact between X and her mother Ms Fottrell submits the father has reflected on the evidence from Dr Willemsen and Ms Huntington and considers that the least harmful option is for there to be a reduction in contact, rather than a complete cessation of contact. He seeks an order for direct supervised contact on four occasions a year and weekly video contact for up to 15 minutes. He considers that is the least harmful course to meet X's welfare needs.
- In the closing written submissions on behalf of Ms Huntington Mr Jones supports the making of a parental order and the submissions advanced on behalf of the father. He submits there is a consistency in the evidence that the mother considers herself to be X's mother and X is her daughter. In her application for a child arrangements order in May 2023 she stated 'I do need permission to issue this application even though I have always been considered to be [X's] mother and she is my daughter'. She repeated this in one of her recent text exchanges with X when she stated 'You are my daughter and no one can take that away from me or you'.
- Ms Huntington also supports the orders sought that secure X living with her father and the restrictions on the mother's parental responsibility. Mr Jones submits the court should not lose sight of the fact that the father is a victim of serious domestic abuse in circumstances where the mother continues to deny the findings and maintain allegations against the father. The unplanned contact in April 2024 demonstrates that she is unable to accept boundaries of consider the impact of such actions on either the father or X. Mr Jones recognises restricting parental responsibility in this way needs to be based on objective evidence and that such an order constitutes an interference in the mother and child's Article 8 rights.
- In his closing submissions Mr Jones sets out that Ms Huntington, like Dr Willemsen, does not support a continuation of contact at the present time and considers direct and indirect contact should be suspended. In taking that position she recognises that is not what X wants, but when balanced with the risks of harm to X of it continuing, the likely impact on her relationship with her father and the security and stability that provides for X, Ms Huntington is clear that step is required to meet X's welfare needs. As Ms Huntington noted in her case analysis 'The consequences to [X] of allowing the situation to remain are the potential for her relationship with her father to be undermined, for [X's] self-esteem and emotional wellbeing to be compromised and for her ability to understand adult relationships to be distorted'. Ms Huntington supports Dr Willemsen's view of the pressing need for X to have therapy to work out the various narratives in her life relating to Y, her surrogacy, why she is not seeing her mother and to work through the two images of her mother that she is holding; of her mother who loves her and who at the same time puts pressure on her. Mr Jones submits Ms Huntington was particularly concerned about the lack of reaction by X in April 2024 when the mother appeared, without warning, and the impact on the father of what the mother did. Ms Jones submits the court needs to have in mind the provisions of PD12J as to the impact on the parents and child of domestic abuse. Both the father and X will need to consider this in the therapy that is recommended.
- Mr Jones submits that Ms Huntington is mindful of the father's concerns at the impact of stopping contact on other aspects of X's life, such as her education, but concludes 'the reality is that to continue indirect contact at present is to place [X] in a position where she is subjected to ongoing further emotional harm and places the therapeutic work at risk'.
Discussion and decision
- Prior to the start of this hearing I raised with the parties the issue as to whether the Secretary of State for Health and Social Care or the Attorney General should be notified of this application due to the unusual circumstances in which a parental order is being sought, where one party has disengaged from the proceedings and the other party is seeking the order to be made. This course was not actively supported by either Ms Fottrell or Mr Jones, although they both acknowledged it was a matter for the court. They submitted that the court is being invited to apply well established principles in response to a very particular set of facts. Whilst that may be correct in relation to s54(4)(a) and s54(3) the question of whether the court can or should make a parental order in favour of someone who has disengaged from the proceedings has not directly arisen before. However, it has arisen in related circumstances where one of the applicants has died after a joint application was made and where one of the intended parents died prior to the application being made. The principles set out those cases have been applied since and have been endorsed in Re X (ibid). Having considered those principles and the clarity of the statutory language I concluded such notice was not required to be given.
- A number of principles have emerged from the cases that have considered the criteria in s 54 which have to be satisfied before a court can consider whether the child's welfare requires a parental order to be made.
- Those principles can be traced back to A v P (surrogacy: Parental Order: Death of Applicant) [2012] 2 FLR 145 when the court made a parental order in circumstances where following the making of a joint application for a parental order one of the applicants died prior to the application being determined. That approach was approved and adopted by the former President, Sir James Munby, in Re X (ibid) and followed in a number of cases since, most recently in Re X (Parental Order: Death of Intended Parent Prior to Birth [2020] 2 FLR 1326, by Knowles J in Re Z (Parental Order: Child's Home) [2021] EWHC 29 (Fam) and Keehan J in Re A (A Child: Surrogacy: Section 54 Criteria) [2021] 1 FLR 357.
- The wider principles seen through the lens of s 3 HRA 1998 in reading down the provisions in s 54 are summarised in paragraph [67] above.
- Within those overriding principles the court needs to carefully consider the evidence and whether the criteria under s 54 are met.
- There is no issue and the evidence establishes through DNA testing that there is a biological link between the father and X and X was carried by Mrs Z (s54(1)), both applicants remain married (s54(2)), they are both over 18 years (s54(5)), Mr and Mrs Z consent to the making of a parental order (s54(6)) and the court should authorise any payments made other than for expenses reasonably incurred (s54(8)).
- The opening words of s 54 provide that 'On an application made by two people ('the applicants'), the court may make an order providing for a child to be treated in law as the child of the applicants if [the provisions of s54(1) (a) – (c) are met]'. In this case the application was jointly made by both applicants on 3 August 2023 and issued by the court on 21 September 2023. Both applicants actively engaged in the proceedings until November 2023, when the mother withdrew active participation in the proceedings although continued to maintain daily contact with X as well as intermittent contact with the father's solicitor and the Children's Guardian. All during this period I am satisfied the mother was aware of the ongoing proceedings and the hearings that have taken place. At no stage has the mother sought or applied to withdraw the application, as rule 29.4 FPR requires, so it remains 'an application made by two people'. It is right the court still retains a discretion whether to make a parental order, but there is nothing in the language of s 54 that prevents the court considering whether to make an order in the circumstances the court is in, where one joint applicant has not continued to actively engage in proceedings.
- Turning to the requirement in s54(4)(b) that at the time when the application was made and the making of the order the child's home must be with the applicants. The circumstances in this case is that when the application was made in August 2023 both applicants set out that notwithstanding their separation and their ongoing dispute as to child arrangements they agreed a parental order should be made. They both had legal advice at that time. At that time they lived separately, and although X was based living with the father, she had regular contact with her mother. Since September 2023 the mother has remained in daily contact with X by video call and/or messages. It is right that during this latter period the mother has not taken up the arrangements for direct contact although she has remained, as a matter of fact, in regular indirect contact with X. Despite the difficulties between the parents there has been no suggestion that X would have her home with anyone else or be cared for by anyone else other than her parents although, at present, the arrangements are that that is not on the basis of an equal shared care arrangement.
- Turning to the issue of the application having been issued after the period of six months (s54(3)). The father's evidence establishes that the applicants took the required steps in the US to secure their legal parental relationship in the US. They took legal advice here around the time of X's birth and were aware of the need to make an application for a parental order. I accept the father's evidence that whilst he was aware of the need to make the application he, for the reasons he gives, left those matters to be dealt with by the mother who, at that time, he considered had the required legal expertise. By the time he came to question that the dynamics in the parents relationship had changed, the mother was facing fraud charges and the father was subject to increasingly serious domestic abuse from the mother. Once he was in receipt of separate legal advice in 2023 the application was issued.
- In the light of the factual background set out above, I have reached the following conclusions.
- First, there is nothing in the statutory language in s54 that prevents the court considering the application made by two people in the circumstances of this case, where one of the joint applicants has ceased, during the course of the proceedings, to continue to participate in them. Standing back and considering the evidence as a whole there is nothing to suggest the mother's position has changed. She still regards herself as X's mother and X her daughter and she has made no application for permission to withdraw the applications for a parental order. The court retains the ultimate discretion whether to make the order even if all the other relevant criteria in s54 are met. Such a conclusion is consistent with the clear language in s 54(1) and, in any event, ensures the Article 8 rights that are clearly engaged, particularly those of the father and X, are respected.
- Second, I am satisfied that adopting a wide and purposive interpretation of 'home with' that requirement is met in this case at the time the application was made and when making the order. The authorities have made clear that the term is not limited to cases where the applicants live together under the same roof. Whilst the parents in this case have not been able to agree the precise arrangements regarding X's care, neither has suggested at any time that X should be cared for or have her home with anyone else.
- Thirdly, it is clear, on the facts of this case, the court should permit the application to proceed even though it was made after the expiry of the six month time limit. I accept the father's evidence regarding his reliance at the relevant time on what he understood to be the legal expertise of the mother. Thereafter the consequences of the criminal charges faced by the mother and changed dynamics of their relationship between the parents provided further context of why the application was not made earlier. Once the parents each secured independent legal advice in the context of the child arrangements applications they jointly made the application to secure X's legal relationship with them both.
- Having been satisfied that each of the relevant criteria in s 54 are met it is necessary for the court to consider whether making a parental order will meet the lifelong welfare needs of X in accordance with s 1 ACA 2002, considering, in particular, the matters set out in s1(4). In his written and oral evidence the father emphasised the importance of this order to secure X's legal relationship with him. The evidence points towards that being the mother's position, in that she has taken no steps to withdraw the application and I accept the inference made by Ms Huntington following her discussion with the mother in February 2024 that the mother wanted this application to continue as her concern was that the father would put obstacles in this application proceeding. Dr Willemsen's evidence recognised that notwithstanding his concerns about the mother, X had a strong and close relationship with her and X's need to know these are her parents.
- At present X has no detailed knowledge about her own background. I accept Ms Huntington's evidence that even though she has not been able to discuss the detail with her she considers that X would want an order that secures her position with her parents. X's needs are for security and stability which is more likely to be achieved by the making of a parental order as it will secure her lifelong legal relationship with her parents, particularly her father who is responsible for her day to day care. X has been harmed by the exposure to domestic abuse between her parents and is at risk of future harm caused by the continuing conflict between the parents and the controlling aspects of her mother's behaviour in seeking to undermine X's relationship with her father and those seeking to secure her emotional, physical and educational needs. The making of a parental order will extinguish her legal relationship in this jurisdiction with Mr and Mrs Z who she has no existing de facto relationship with. In due course X will need to understand the circumstances of Y's birth and her subsequent adoption by Mr and Mrs Z.
- As regards other orders the court could make. The father is unable to make an application for a parental order as a sole applicant pursuant to s54A as that provision did not come into effect until after X's birth. In any event, such an application would not properly reflect the factual circumstances of X's background, namely this was a joint surrogacy arrangement entered into by the mother and father. It would be open to the father to apply for an adoption order as a sole applicant but again that would not properly reflect the factual background of X's birth and the father's existing biological connection with X. In addition, neither of these sole applications would properly reflect or recognise X's identity as a child born following a joint surrogacy arrangement. Whilst this application is being considered together with cross applications for a child arrangements orders such orders do not have the transformative effect of a parental order, would not be lifelong and would not properly reflect the factual circumstances of X's birth and her identity as a child born following a joint surrogacy arrangement.
- Having considered all those matters I am satisfied the court should make a parental order as only that order will secure X's lifelong welfare needs.
- I turn now to consider what child arrangements will meet X's welfare needs, which is the court's paramount consideration under s 1 CA 1989. There can be little doubt on the evidence that her welfare needs are met by an order that confirms she lives with the father. That has been her reality for many months. It accords with her wishes and the father has demonstrated that he is able to meet X's social, emotional and educational needs. His oral evidence demonstrated how attuned he is to X's needs in the widest sense. The detailed enquiries he has made about her future education, the obvious care he takes in ensuring she has a wide range of other interests and recognises the importance of her social relationships. He displayed real empathy and understanding about the difficult position X is in regarding her relationship with her mother and the obvious conflict that exists.
- The question of contact is much more complex. The evidence demonstrates that through a combination of the mother's controlling behaviour and inability to act in a child focussed way, and the father's unwillingness to make a difficult decision that may cause X distress, despite acknowledging the continuing harm the existing situation is causing X, X has continued in very regular contact with her mother. The father recognised he was in an increasingly difficult position but felt powerless to do anything about it. He considered X had an understanding that he was monitoring the communications between X and her mother, although she is not aware he is actually looking at the messages that are exchanged between them. I agree with Ms Huntington that is something that needs to be rectified sooner rather than later. The messages the father has attached to his most recent statement are deeply concerning. The description that they have the drumbeat of pressure and threats mixed with love bombing and are highly manipulative is entirely accurate. They are damaging to X as they cause her anxiety and seriously risk undermining the important secure relationships around her of her father, her school and Ms Huntington. As Dr Willemsen said, the demands made by the mother to report things to Ms Huntington 'robs [X] of her free mind'. I accept the evidence of Dr Willemsen and Ms Huntington that there needs to be a significant reduction in this level of contact because it is causing X serious emotional harm. If continued at the present level it would undermine the therapeutic intervention Dr Willemsen is clear X needs to understand the risk her mother poses to her. During the hearing the evidence was that any change was likely to be against X's wishes and cause her some distress, leaving aside the logistical difficulties in managing such a reduction.
- Due to the complexity of the situation Dr Willemsen could see the force of there being a complete break in contact as it had the attraction of a clear message, however difficult that may be for X, but was likely to give any therapeutic intervention for X the best chance of success, which was likely to be in the longer interests of X. Against that course the father is very concerned about the impact of that on X, the consequent risks in relation to the next steps that are required regarding her schooling and the impact of managing that on his relationship with X. As Ms Fottrell set out in her closing submissions 'To require a complete cessation of contact in this context would cause [X] immense emotional distress and would place the father in an intolerable position, all during a period of real importance for [X's] education'. In her evidence Ms Huntington saw both sides but was clear there needed to be a significant reduction and in the end supported a time limited suspension.
- In their closing submissions, having had time to reflect on the evidence, the father advocated a reduction of video contact to once per week and direct supervised contact to four times a year. Ms Huntington didn't disagree with that frequency but only after a period of suspending contact to allow any therapeutic intervention to be embedded.
- Having carefully considered the submissions I have concluded that there should be a period of at least three months when the contact between X and her mother should be suspended and the matter then restored to court for a review to consider what, if any, contact should be reinstated. I have carefully considered the father's evidence and the submissions on his behalf about the impact on X of that as it would be against her wishes, the concerns he expressed regarding the impact that may have on her education and his relationship with X. They are important considerations but have to be weighed in the balance with the very clear evidence, which I accept, that continuing the current contact, even on a reduced frequency, exposes X to real and significant emotional harm through the controlling nature of the communication which cause her significant anxiety and the continued undermining by the mother of key relationships that provide for the stability and security in X's life. I acknowledge this step will be a loss for X and will cause her distress but she will have the support of her father, the continued involvement of Ms Huntington, the continued stability of being in her current school for a further academic year and such a break will give the therapeutic support she obviously requires a much better chance of success. It is not a cessation but a suspension of contact, that will be reviewed again.
- I agree with Ms Huntington that the management of communicating this decision will require careful planning and thought. There is some evidence that since the hearing the mother has unilaterally stopped contact for a number of days. Such action only serves to underpin the conclusion I have reached as this behaviour, like the unannounced contact in April 2024, demonstrates the mother's complete inability to consider the impact of her actions on X.
- Turning now to the question of parental responsibility. X's welfare, in the particular circumstances of this case, require the father to be able to manage the day to day decisions relating to X without recourse to the mother. There is nothing to suggest that the father would do other than take decisions that would meet X's welfare needs. In my judgment, the mother has abdicated her parental responsibility to X by acting in the way she has through refusing to engage with these proceedings, or to engage in any meaningful way regarding decisions that need to be made about X and has acted in a way that is deeply damaging to X's emotional and educational welfare needs. With the proviso that the father will notify the mother regarding any change of home or any significant medical treatment that X may undergo, I am satisfied that he should have autonomy in exercising his parental responsibility in all respects in relation to X without the need to consult or seek the prior consent of the mother and there should be a prohibited steps and specific issue order the effect of which enables the father to exercise any aspect of his parental responsibility in that way. I recognise this is an order that interferes with the mother's Article 8 rights but consider the compelling and powerful evidence in this case regarding her conduct justifies such an order as being proportionate in these circumstances.
- In the written submissions on behalf of the father continuation of the wardship was sought. I can see no welfare benefit or need for that in the light of the conclusions I have reached above.
