In the Matter of X (A Child, No. 2, Private Surrogacy Arrangement; Contact With Birth Family)

This is not a judgment in the conventional sense in that I do not now have to rule upon anything. The parties have, during the course of a gruelling four days, reached a position of consensus on a very detailed order. The only purpose of these few words is to provide some context for that which, by consent, I now order.

I have heard every moment of this case openly and in public. Nothing at all has been done secretly. I now give this judgment publicly and openly. There was in fact a member of the public present in the courtroom this morning. I stress, as I told that person this morning, that nothing at all may be said or reported or placed on the internet which may in any way at all tend to identify the child concerned or her whereabouts or that of any of her birth or current family.

In this case there is one father, whom I will call the father. There are two mothers. I will, to avoid confusion, refer to the genetic mother who carried and gave birth to the child, and who cared for her for the first three months of her life, as the birth mother. I will refer to the father’s wife, who now mothers the child, as the mother.

This case is yet another example, of which I have experienced many, of a private surrogacy arrangement which unravelled, causing great and intense heartache for all concerned. At its centre is a deeply loved, totally innocent, and very vulnerable small girl, now aged almost exactly 18 months. It cannot be stressed strongly enough that in all my consideration of this case throughout this week the welfare, both now and in the long term, of that child is the paramount consideration.

There have already been two significant hearings in this case, both before Her Honour Judge Singleton QC, in August 2015 and January 2016. Judge Singleton has since become inevitably ruled out from any further involvement in this case, because the birth mother mounted a protest at her home as a result of which she has been convicted of, and sentenced to a suspended prison sentence for, harassment.

The applications which the birth mother made for permission to appeal to the Court of Appeal from those judgments and resulting orders were both refused by the Court of Appeal, with the Lady Justice certifying that they were totally without merit. Although the birth mother repeatedly refers to Her Honour Judge Singleton as being “conflicted”, those judgments have not been reversed or varied, and they stand as narrative accounts of the history. They have not been made publicly available, but they are available for anyone with a proper interest in this case to read and see. I will not repeat what is in them.

I do, however, wish to emphasise one point. The father and mother have an elder son, now aged 6. He was conceived and born through a surrogacy arrangement which was not a private one but one regulated pursuant to the Surrogacy Arrangements Act 1985. He is the genetic child of both the father and the mother, having been created from his sperm and her egg, but implanted in, and carried by, another woman who was the carrying mother. The child with whom I am concerned is the genetic child of the father and the birth mother, who was artificially impregnated with his sperm pursuant to their private agreement. The reason for that, as I understand it, was that no more of the mother’s eggs were available. There is, therefore, an important difference between the two children of the father and the mother, in that the child with whom I am concerned has this clear genetic connection with her birth mother and her wider birth family.

In August 2015 Her Honour Judge Singleton decided that the child should move from living with the birth mother to living with the father and the mother, and she has done so ever since. The birth mother had changed her mind during the pregnancy and before the birth, and wished to keep and bring up the child herself. There is no doubt that she very bitterly opposed that decision and she has never, at least until this week, accepted that decision. She tried to appeal it. She very actively publicised and campaigned against it online and by protests at the homes of the former Prime Minister, David Cameron, the President of the Family Division, Sir James Munby, the Minister for Children, Edward Timpson, the previous guardian, Alexandra Sayer, and Her Honour Judge Singleton herself. She issued in May 2016 an application, which was before me this week, for the decision and order of August 2015 to be reversed so that the child returned to live with her. After hearing submissions from the birth mother, I summarily dismissed that application for reasons which I gave in my short judgment last Tuesday, 8 November 2016 at [2016] EWFC 54.

I wish to state in the clearest and strongest possible terms that it is now firmly settled that this child will live with, and be brought up by, the father and the mother as their own child. She has already lived with them continuously for 15 months since she was 3 months old. The current guardian, Mr Elton Sanders, reports that she is being very well cared for and parented by them, and is thriving. It is vital that the stability and permanence of that placement is not threatened. With the consent of the birth mother, I will make a direction pursuant to section 91(14) of the Children Act 1989 that no further application may be made for five years for a reconsideration of with whom the child lives without the prior leave of the court. I would myself have selected a longer period than five years if I was not constrained by settled authority from the Court of Appeal.

Having said all that, however, I wish equally strongly to stress that this child has not been adopted by the father and mother, and this is not an adoption situation or even a quasi adoption situation.

That leaves contact. There are before me two applications for contact. One is from the birth mother. The other is from the genetic half-sister and half-brother of the child, being the birth mother’s now adult children. I will for convenience call them the sister and brother, never forgetting that the child also has a brother (although also genetically a half-brother), being the 6 year old son of the father and mother.

The sister is now aged 22. The brother is aged 19. Although an applicant, the brother has chosen not to attend or participate at all in this hearing, and, as I made very clear on the first day, I cannot and will not make an order for contact by him without that attendance or participation. I cannot do so as I have been unable to make any assessment of him, and unable – unlike in the case of his sister – to discuss any of the issues in this difficult case with him. The position of the sister, however, is quite different. She has meticulously attended every moment of these four long days. She has given oral evidence and been subjected to rigorous cross-examination. She has engaged in dialogue both within and outside the courtroom. She has been assisted by a McKenzie Friend, Mr Les Culshaw.

There was a strong objection on behalf of the father and mother to Mr Culshaw acting as McKenzie Friend since he, too, is undoubtedly a campaigner, who participated in several of the protests I have mentioned. But many people who are willing and motivated to act as McKenzie Friends are indeed campaigners, and if they were all prevented from doing so on that ground alone, many rather helpless litigants, like the sister in this case, might be left with no effective help or support at all. I wish to record that within the four walls of this courtroom, which is, of course, the extent of my observation of him, Mr Culshaw has acted impeccably and within the proper boundaries of a McKenzie Friend. He has shown respect and courtesy to the court. He has been a model of restraint. He has not sought to become an advocate and nor would I have permitted him to do so, but he has provided visible and obvious help and support to the sister, and he has helped her to formulate sensible and well judged questions.

The sister is in good, full time employment in a caring profession, but she does still live at home with her mother. She is, frankly, a less strong personality than her forceful and determined mother, and I have no doubt that she did meekly allow herself to become allied to her mother’s campaign and cause. She actively participated in the protests at the homes of David Cameron and Sir James Munby, and I do not accept her evidence that she did not realise where they were going on those occasions. But I am quite satisfied that she does genuinely and sincerely seek to have contact and some relationship with her sister (at whose birth she was present), and I am satisfied that she does fully accept and respect the role and position of the father and the mother. I am satisfied that she does now, if not before, appreciate that her contact must be kept quite separate from any contact by her mother. I am satisfied that she does now appreciate that if she wishes to have contact the protesting and campaigning must stop.

It is important to stress that when Judge Singleton made her original order in August 2015 she made provision for quite frequent, monthly direct contact between the child and her birth mother, both supervised and unsupervised. She did so because she considered that although the child was to live permanently with the father and the mother and become a full and permanent member of their family, it was of importance to the child, especially in the longer term, that she should grow up with knowledge of, and some actual relationship with, her birth mother. Unfortunately that contact broke down, due essentially to the birth mother’s inability at that time to accept the underlying decision. There has now been no direct contact at all between the child and her birth family for almost a year, and at the hearing in January 2016 Judge Singleton made provision for indirect contact only.

Since then there has been one hugely benign development in this case. The earlier guardian had to be removed from the case since the birth mother had protested also at her home. A new guardian was appointed, Mr Elton Sanders. I wish to pay a very full and sincere tribute to Mr Sanders for all that he has done, and has agreed to do, in this case, and all parties should be immensely grateful to him.

Like Judge Singleton in August 2015, Mr Sanders does consider that it is in the best interests of the child to have some direct contact with her birth mother and her sister, provided that can be done without destabilising the child or destabilising the father and the mother. I agree with Mr Sanders. He has generously offered to engage in a very active way in this case for at least a year under the provisions of a family assistance order, and with his help the very detailed provisions of the order have been negotiated.

The birth mother has repeatedly said during this hearing that she now absolutely accepts that the child will live with the father and the mother. She has said that she will stop the protesting and campaigning, and will abide by all the detailed provisions of the order.

The father and mother clearly remain very sceptical about that. They both said in evidence yesterday that they remain very scared of what the birth mother may do. They say that if she can campaign with the intensity that she has, including by placing so much material online and by protesting at the homes of so many people, several of them quite unconnected with the case, they cannot have any confidence that she will not carry the campaign to their own home or into the course and content of any contact.

I perfectly understand their position, but I do believe that this hearing has offered an opportunity – albeit only a start – for each side to this dispute to begin to have a greater appreciation and acceptance of the other. All parties have expressed their confidence in Mr Sanders, and said that they will engage with him and move contact forward in line with his recommendations and plan, and with his assistance. In my view it would do a great disservice to the longer term needs and welfare of the child to cut out now any further direct contact with her birth family, for the reason only of the events, however destabilising, of the last year or so.

For these reasons I will make an order in the very detailed terms and conditions which have been drafted, which essentially provides for two occasions of supervised direct contact each year between the child and her birth mother and, on quite separate occasions, her sister, together with forms of indirect contact in the intervening periods.

There are very detailed terms and conditions and “rules” which all parties clearly understand and must adhere to. The birth mother in particular must understand that this is a last chance. She is, of course, entitled in a free society to campaign and to protest, provided she does not break the criminal law. But if she does do so again, the pressure that that puts upon the father and mother will be just too great, and inevitably all the contact which I have so painstakingly striven to promote this week will be jeopardised, probably for ever. I sincerely hope that these long, painful and rather exhausting few days can represent a new beginning, from which all parties can move forward and begin to work together in the best interests of this child whom they all undoubtedly love very dearly.