In the Matter of X (A Child, No.1, Privacy Surrogacy Arrangement)

One of the applications before me this week is an application by the birth mother that the decision which was reached by Her Honour Judge Singleton QC in August 2015 as to with whom this child should live, should now be reconsidered. The birth mother clearly seeks that there is a change in the child arrangements so that the child ceases to live with Mr and Mrs X and resumes living with the birth mother, with whom she has not now lived for about 15 months since August 2015.

I have read the judgment of Her Honour Judge Singleton dated 20^th August 2015. That is available for anybody with a proper interest in this matter to read. I will accordingly not, for the purposes of this ruling, repeat anything that is already in that judgment. I observe that Judge Singleton conducted a hearing over four days, from 17^th to 20^th August 2015, and gave a full and considered judgment at the end of it. Pursuant to that judgment the child moved from the birth mother, to live with the genetic father, Mr X, and his wife, Mrs X. The child has now lived continuously with them for about 15 months.

There was a further hearing before Her Honour Judge Singleton which, according to her judgment, lasted a day and a half in January 2016. That was focused upon issues of contact, the name of the child, and other matters. There was not the slightest indication in that judgment of Her Honour Judge Singleton that her underlying decision that this child should live with Mr and Mrs X should be reconsidered.

The birth mother then applied to the Court of Appeal for permission to appeal from the decisions and orders of both 20^th August 2015 and 27^th January 2016. Permission was refused on paper by Lady Justice King. I have read the written decision of Lady Justice King. She refused permission and certified that the application was totally without merit and that it could not be renewed to an oral hearing.

The position therefore is as follows. There are already two subsisting court orders pursuant to which this child lives with Mr and Mrs X. I cannot sit on appeal from those decisions and orders of Her Honour Judge Singleton. Only the Court of Appeal could do that. The view of the Court of Appeal was that the proposed appeal was totally without merit. I can therefore only consider whether there have been any changes since those decisions and orders of sufficient significance that the question of with whom this child should live should now be reconsidered.

The situation is, of course, a very difficult one for the birth mother, since she is not currently permitted to have direct face to face contact with the child, and accordingly can only know at second hand about the day to day circumstances and wellbeing of her child. I appreciate that, and I am sympathetic to her position. But this case has been investigated yet again by a completely fresh CAFCASS guardian, Mr Elton Sanders, who was appointed to replace the previous guardian because there had clearly been a complete breakdown between the previous guardian and the birth mother.

I have read the report of Mr Sanders dated 28^th October 2016. At paragraph 34 of his report he describes visiting the child at her current home address. He says that she presented as a very happy, content little girl. She was able to interact well with him. He says at paragraph 53 of his report:

“I understand that [the birth mother] sought to appeal that order but was not successful. I see no reason to reopen the issue of where the child should live. I have no evidence before me that Mr and Mrs X are unable to provide good quality parenting and meet the care and welfare needs of the child at this time. She appears happy and settled and is consolidating her position within the household and has secure attachments to her primary carers, older brother [viz the son of Mr and Mrs X, now aged 6] and wider family members.”

I have specifically asked Miss Carolyn Jones, counsel who appears today on behalf of the guardian, Mr Sanders, who is in court, whether he considers at all that the question of with whom this child should live should now be reopened. The answer is that he does not.

I have asked the birth mother what fresh evidence she relies upon in support of her application that the question of with whom the child lives should now be reopened. She referred, first, to a report dated 23^rd November 2015 by an independent chartered psychologist, Dr Margaret Bullock. I mention that that report in fact preceded in time the hearing before Her Honour Judge Singleton in January 2016 and, as I understand it, was before Judge Singleton. So she reached her decisions in January, which clearly approbated her earlier decision of August 2015, in the knowledge and light of this report from Dr Bullock.

The birth mother has specifically referred to various paragraphs in that report, namely, paragraph 2.3, paragraph 2.21 and paragraph 2.24. These paragraphs do indeed indicate that Mrs X is currently, or was at the date of the report, undergoing stress and anxiety and indeed at that time was unable to work. There is a summary by Dr Bullock at the outset of her report, now at bundle 2, pages D48 and D49. Dr Bullock says in that summary: “[Mrs X] presented as a caring and attentive mother.” So although the summary also indicates stress and anxiety on the part of Mrs X, there is not the least suggestion there that it is of such gravity or intensity that it should lead to any reconsideration of with whom this child lives.

The birth mother then referred to what she calls the fact that Mr and Mrs X are unable to comply with the existing order with regard to indirect contact. She said that she had not received the indirect contact which she should have received at the beginning of November. I cannot at the moment explain why she did not receive that, but Mrs X was at once able to produce in court her own mobile phone upon which there is a clear email message to the mother, copied also to the adult siblings, being the children of the birth mother. It was a friendly and informative email giving up to date information about the progress and development of the child and attaching a recent photograph of her. There is therefore no basis for saying that Mr and Mrs X did not comply with the order as to indirect contact at the beginning of November.

The final point made by the birth mother is that Mr and Mrs X are extremely opposed to contact. To some extent that is undoubtedly correct. Indeed also listed for hearing before me this week are applications by both the birth mother and also her adult children as to contact, to all of which I propose to give most careful and attentive consideration. It is, however, hardly surprising that Mr and Mrs X currently feel threatened by contact. There has been almost continuous and relentless litigation since almost the birth of this child. That was, of course, initiated by Mr and Mrs X in the first place, because the birth mother had concealed the fact of the birth and had not handed over the child as originally agreed in their surrogacy agreement. But the litigation has been maintained and perpetuated by the birth mother, and indeed within days of the last order of 27^th January 2016 further applications as to contact were also issued by her adult children.

I am aware of, and have indeed read in the documents, some of the intense coverage that has been given to this case in social media, and the language used. I am aware also, because it is fully documented in the documents, that the birth mother has now been convicted of harassing Her Honour Judge Singleton, and that she has campaigned in a number of other ways, including at the homes of another judge and also the Minister for Children, Mr Timpson, and the former Prime Minister, Mr Cameron. She is, of course, fully entitled to campaign, and nothing whatsoever that I have said is intended in any way to suggest that her freedom of expression should be in any way curtailed. But from the perspective of Mr and Mrs X it is patent that their awareness of that campaigning must make them feel especially concerned and anxious about contact between the birth mother and the child. So although it may be correct to say that they are “extremely opposed to contact”, they undoubtedly have reasons for that opposition.

It is important generally that there is some finality in litigation. Society could not function, and indeed the courts would be choked, if issues that are once decided can be repeatedly re-ventilated and reconsidered. Of course, in relation to children the welfare of the child concerned must always be the paramount consideration, but the welfare of children also requires some certainty and some predictability in their lives. The fact of the matter is that this child is now, on the evidence of Mr Sanders, the guardian, well settled where she is living with Mr and Mrs X and bonded also with her half-brother there and with the wider X family. It would require strong positive reasons now to reverse the decision that was so clearly made in August 2015 and from which the attempt to appeal was so unsuccessful.

In my view it is completely unjustified to reconsider now the issue of with whom this child lives. Further, it would be quite extraordinarily worrying and potentially damaging to Mr and Mrs X now to embark upon any fuller enquiry into it. For these reasons I now summarily dismiss the application of the birth mother that this child now move from Mr and Mrs X to live with her, and I propose now to consider all the other applications that are currently before me from the firm, settled and reasserted basis that this child will live, so far ahead as one can possibly foresee, with Mr and Mrs X.