SITTING AT ROYAL COURTS OF JUSTICE
B e f o r e :
|- and -|
|(2) D||1st & 2nd Respondents|
|- AND –|
(THROUGH HER CHILDRENS GUARDIAN ANGELA ADAMS)
(instructed by Goodman Ray Solicitors) appeared on behalf of the Applicants.
MS. H. MARKHAM QC and MS. M. ALLMAN
(instructed by Freemans Solicitors) appeared on behalf of the Respondents.
MS. P. LOGAN (Solicitor, CAFCASS Legal)
appeared on behalf of the Guardian.
Crown Copyright ©
MRS. JUSTICE THEIS:
The Legal Framework
"The test here is a simple one to formulate though not necessarily to answer; namely as between the two competing residential care regimes on offer from the two parents (with their respective spouses) and available for his upbringing which, after considering all aspects of the two options, is the one most likely to deliver the best outcome for him over the course of his childhood and in the end be most beneficial. Put very simply, in which home is he most likely to mature into a happy and balanced adult and to achieve his fullest potential as a human?"
"…The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it 'rules upon or determines the course to be followed'. There is no question of a parental right. As the Law Commission explained, 'the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child' or, as Lord MacDermott put it, the claims and wishes of parents 'can be capable of ministering to the total welfare of the child in a special way'."
"This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is 'his' child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child...For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain."
At para.35 she said the following about social and psychological parenthood:
"…the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase 'psychological parent' gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:
'A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.'"
"76.Where parental responsibility is shared by a child's parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share 'duties' and 'responsibilities' in relation to the child, as well as 'rights … powers … and authority'. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.
78. Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child's needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say 'no' to reasonable strategies designed to improve the situation in this regard."
Ms. Markham submits this case should be treated like all other cases of parental breakdown where separated parents are reminded of their duties and their need to co-operate, not as a form of punishment to one set of parents.
"He has shown good insight into his illness, recognising the triggers when he is unwell. This enables him to access and make use of appropriate professional treatment in a timely way and to engage in treatment."
"[B] demonstrates remarkably good insight into his difficulties. He was able to identify both longer term and short term triggers to his mental health difficulties. He was insightful about other triggers for his low mood and anxiety over time, such as stressful exams while studying medicine, stress in his job in the UK and the threat of deportation and immigration issues; his fear that returning to country X would not be a safe place for him."
She continues in her report to say that she did not consider that therapy was required and that "B vulnerability to depression and history of recurrent depressive order does not impact on his ability to be a good parent".
"It was important for us to build a friendship with our surrogate. We both wanted our surrogate to be like extended family to us. As gay parents, we wanted our child to know the person who had helped us start a family and we envisaged having a long relationship with our surrogate. I believe from my conversations with C that this was something that she also wanted."
"…agrees to register the birth of the child as soon as possible after birth with the full name and surname provided in writing to the surrogate by the intended fathers.
At birth, both genetic father and/or intended father will assume all parental rights and responsibilities for the children from that time forward.
The genetic fathers acknowledge paternity of the children/child to be conceived. The surrogate will comply with all legal actions necessary to re-issue the birth certificate with both names of the genetic fathers.
Following the birth of the child, the parties will each sign documents and do whatever acts are necessary to fulfil the intent of the parties and to make the genetic fathers and/or intended father the actual and legal parent of the child.
The surrogate and the surrogate's husband agree that six weeks after the child is born to institute or participate in proceedings in the United Kingdom or other requirements to terminate their respective putative parental rights via a parental order.
The surrogate and surrogate's husband further agree that the genetic fathers and/or intended father shall select the name of the child and that any birth certificate issued through the medical facility in which the child is born shall reflect the names chosen by the genetic father and/or intended father."
"We are instructed to inform you that, due to significant concerns, our client is no longer in agreement to continuing any surrogacy arrangement; we therefore give notice of our client's withdrawal of consent in regard to the same.
Our client's position is as a result of serious concerns in relation to the information you have both provided and the truthfulness of the same, particularly in relation to your situation as a couple and in regards to both your immigration positions. These concerns have meant that our client feels that it would not be in the child's best interests to be placed and instead should remain with her, the birth mother.
We would ask that you respect our client's decision and to confirm, therefore, that, upon receipt of this letter, you are not to contact our client directly or indirectly, attend at her property, any address, etc. or to make any posts about her or members of her extended family on social media."
"Our clients are obviously very distressed and upset that your client is intending that the baby that she is carrying remains with her after her birth. They do not understand why your client has reached the conclusion that it would not be in the best interests of the baby to be brought up by their biological parent and our clients do not agree that the baby should remain with your client with whom she has no biological relationship. Our clients have always been enormously grateful to your client for helping them with their wish to start a family and do not at all seek to minimise the role that your client has played in this.
Although our clients will not be the legal parents of the child at birth, as the biological parent they wish to be informed about the birth of their daughter. Given your client's position, can you please confirm as a matter of urgency and in any event not later than 4pm on Friday 6th May whether your client would be willing to give an undertaking to our clients to inform them:
- whether there is a plan to induce labour early in view of your client's health issues;
- when she goes into labour; and
- when the baby is born.
Our clients have always had a relationship with the midwife. In the event that your client is not willing to speak to our clients, then can you confirm that she would give her agreement to them contacting the midwife for information about the birth only.
Unless we receive confirmation from you that your client is willing to give this undertaking then we will have no alternative but to advise our clients to make an application to the court. This is a course of action which our clients are loathe to take and they hope that matters can be resolved without the necessity to do so.
With regard to the arrangements for the child after birth, our clients would very much hope that it will not be necessary to attend court on an urgent basis and would wish to resolve matters amicably if at all possible."
The letter then refers to the benefits for all parties of attending mediation.
"We write further to your letter dated 4th May 2016.
We confirm that we have taken further instructions relating to the contents thereof
Our client is not agreeable to provide an undertaking in the terms sought by your clients.
It is of disappointment that in no way in your letter do your clients address the concerns raised by our client. She has made her position clear and the basis for the same and, therefore, at this time is not willing to provide any further information.
We note it is suggested that your clients have a good relationship with the midwife. Our client finds this puzzling on the basis that they have only met with the midwife on one occasion and to our client's knowledge, had very little contact with her.
Our client, at this time, is not willing to attend mediation. It is not suitable, due to our client's health, for her to travel.
It would be suggested that your clients give some thought to the concerns raised by our client and the considerations of the court in such proceedings in relation to the child, particularly due to the serious breaches of trust that have occurred throughout our client's pregnancy and the concerning lack of clarity of both your clients' immigration and home life circumstances at this time."
They then refer to any application to the court and they advise that they will accept service.
"We write further to the above matter and confirm that we have been instructed by our client that, over the weekend, your clients have publicly identified her online. … We have sent the links to such pages over email with this letter.
It is wholly inappropriate that your clients have made this situation public at this time when the matters are being dealt with currently by solicitors and, as of yet, they have provided no substantive response in relation to our client's concerns.
The contents of the petition online … contain several untruths.
We would ask, as a matter of urgency, that your client removes all petitions … until these matters have been discussed and dealt with appropriately. These public pages could put our client, and the child, at risk and are wholly inappropriate considering the infancy of the legal discussions in this matter."
"Firstly, we confirm that our clients have removed the … pages that were created over the weekend. They accept that this course of action was wholly inappropriate and they apologise to your client for any distress that this may have caused her. Our clients were extremely distressed having received your letter on 6th May, but now understand that this course of action was misjudged. These pages have been removed, they have not posted anything else on the internet and will not do so.
With regard to your client's position as set out in your letter dated 6th May, as we have said above, our clients are distressed and disappointed that your client is not willing to provide them with information about the birth of their daughter. We hope this is something that your client would be willing to reconsider.
With regard to your client's concerns about our clients' untruthfulness about their home life, situation as a couple and their immigration position, our clients simply do not understand what these concerns are and would ask your client to set them out so that they can consider these.
With regard to their lifestyle and relationship, our clients are in a genuine subsisting monogamous relationship with each other.
With regard to our clients' respective immigration positions, as your client was aware before the pregnancy, A has lived in the United Kingdom for sixteen years since 1998. He is here on an EEA visa, which expires in 2019. A has the right to apply for permanent residence in December of this year, 2016, and he intends to make this application.
B has been in the United Kingdom since 2006. In 2015, he made applications for asylum and on human rights grounds. These applications were refused in June 2015. Our client has appealed the refusal decision and this appeal hearing will now take place in July 2016. We understand that your client was aware of A's immigration position before they matched and our client informed your client in June/July 2015 that his applications were refused, shortly after the match was agreed. Our client has not discussed the details of his claim for asylum with your client; he did not consider this to be necessary at the time."
The letter then notes their position in relation to mediation.
"….Our client wishes to advise that the child was born at 10:53am on … weighing 5lbs 5ozs. She was born prematurely by emergency C-section. Our client has been unwell since the birth. The child also initially had Necrotizing Enterocolitis infection, this is now being treated but she remains in hospital, although is now stable. She remains in the Special Care Unit due to the fact that she was premature, but is now feeding normally…..
Due to our client's ill-health, we would ask that your clients respect her privacy at this time and allow her to become well enough, along with the child, before making the birth known to their extended network.
Any adverse publicity in relation to the child or our client would put them at risk at this time.
Our client will be willing to consider mediation once she is well enough, but we would suggest this mediation would need to be undertaken in the locality … where both the child and our client currently reside."
They then ask for an undertaking not to disclose details of the birth to the media or third parties
"Our client is willing to provide updates in relation to the child if your clients are agreeable to keeping this matter private between them whilst other issues are determined."
Following that exchange of correspondence, the applicants issued proceedings.
"We remain concerned about aspects of the care that H receives when she has been with B and A and we know very little about H when she is with them. On two occasions, she has returned with greasy hair and a rash on her face and smelling of cigarette smoke. Over a four week period, she had bites on her face and body. We questioned the immediate concerns which were the bites and were told by B that they were mosquito bites and then spots. We took H to the doctor for the rash. The doctor said it was a fungal infection likely to have been bought on by H not having been cleaned properly. She prescribed an antiseptic cream. By the time H went back to B and A the following weekend, the rash had cleared up. C passed the cream to B and A and asked them to continue using it for another two or three days to make sure the rash was not coming back. The following Sunday when H came back to us, the rash was even worse. A said that they had used the cream and handed me the tube back. We used the cream again and the rash cleared up completely within about four to five days. We attach before and after photographs to this statement to illustrate our concerns about H's presentation."
"I think we were hurt because it was accompanied with a statement that we should wash her at least every second day. It was hurtful to us perhaps saying that we were not washing our daughter adequately. It just hurt us to say that she was smelling like smoke and we didn't care. It was really hurtful that [C] would say that, that we would use our child in that way."
"We are putting the past behind us. We are focusing on our daughter. It is in her best interests that she has a relationship with mummy and daddy and sisters. I do not think badly of them at this point. I think we can create a positive image because of the amazing things she has done for us."
A little later, he said:
"I accept I should have told them about my depression and that I should have told them more about the asylum part of my application. I am sorry I didn't do that at the time."
In relation to the petition, he said:
"My friend deactivated the petition. You are right. We lacked extreme judgement. It was wrong that we did that."
"We compliment ourselves, I'd say. We have different personalities. I love B to bits. I could not live without him. He is the love of my life. We try to do things. I take care of the money because he's not working. Always try to squeeze as much as we can. He likes to buy things. I try to organise the money properly. We talk about things. We have conversations about that. I think it is like every relationship, it needs to have a balance. I think we balance each other in a way that we understand each other. I understand him when he is upset. He understands me the way I act. I am sometimes bubbly, sometimes sad, sometimes grumpy. He says 'Grumpy A'. But he makes me chill out. We have a very good relationship."
"A previous diagnosis of depression, with some suicidal ideation, is a static risk factor in terms of parenting and ability to provide consistently responsive and engaged care. When present with other risk factors such as substance misuse, social isolation and abusive relationships, risks to the child increase. I have found no evidence of these exacerbating factors in my investigation. I have however found that B has a supportive relationship and a good support network, which is likely to recognise any future deterioration in his health and ensure that appropriate support is identified.
I have also found evidence of dynamic factors that further mitigate the static risk posed by what B has told me about his diagnosis. He has shown good insight into his illness, recognising the triggers and when he is unwell. This enables him to access and make sue of appropriate professional treatment in a timely way, and to engage with treatment."
"I now believe that the tendency of C and D to use H in the proceedings to achieve their goals, and consistently undermine the role of her genetic father and his partner in order to do the same, would result in an emotionally harmful situation for H if she were to grow up moving regularly between these two homes.
In C and D's home, I fear that H would be at risk of hearing messages about B and A that would undermine the story of her birth and early life. There is a real risk that as H becomes older, information about the lifestyle of B and A and their care of her would be obtained from her directly by C and D. In that way, she would become the conduit for conflict. I would worry that H would then be likely to experience anxiety and the sense of burden that children living with conflict often experience.
I therefore stand by my original recommendation that H should live with B and A, but believe that her need to know her birth family should be balanced against her needs for emotional stability. I therefore think that H should spend time with her birth family six times a year."
"B and A's disappointment that they are unable to have the relationship with C and D they had hoped indicates their appreciation of H's needs to have knowledge of her birth mother and her wider birth family. Their appreciation of this makes me confident that they will ensure that H has knowledge of C and D's family, and that they will facilitate her time with them as she grows older in a way led by H's needs."
Discussion and Decision
(1) The a-typical family structure in which she has four parents comprised of two families cannot be overlooked.
(2) One family is a same-sex family.
(3) The genetic tie which exists with one parent only.
(4) The gestational relationship is of some significance.
(5) The respondents alone are the legal parents.
(6) A key element of the factual history of this case is the parties originally intended this to be a surrogacy arrangement.
(7) This is a group of adults who do not have a shared family experience with each other.
I agree with that analysis. This lack of a shared family history has had an impact on the parenting of H. On one level, they had and continue to have what Ms. Fottrell has described as a "faux intimacy and closeness on social media", but in a fundamental way their relationship was and is superficial. This lack of knowledge of each other was exposed with the difficulties they encountered in their relationship earlier this year. It readily exposed their limited knowledge of each other and resulted in C and D making the decision they did to keep H, taking knowing and deliberate steps to secure her place with them legally and physically before informing B and A that H had been born. In my judgment, this was a deliberate and calculated course of conduct decided on by C and D prior to and at the time of H's birth.
"However, I have considered H's particular attachment needs as she approaches six months old. As outlined earlier, she will soon form selective attachments. During the ages of nine to twenty-four months, children demonstrate anxiety when separated from primary attachment figures. Although they need to explore and meet other people, they are able to do this with their attachment figures nearby to act as a secure base for them to return to.
I take the view that H's developmental needs require her to maintain familiarity with C and D without frequent separations from her main carers. I would suggest family days out together, or a meeting where she could spend a few hours in the care of C and D. The frequency of this would have to take into account practical considerations, but should not be less than once every three weeks."
In her second report at para.31, she says as follows:
"I previously set out my reasons as to why I did not believe that H should stay overnight with C and D's family until she is older. I based my thoughts upon H's attachment needs. It is significant that H has now passed the age of six months with frequent changes in carer. She needs to go forward with stability to allow her to develop trusting relationships with consistent caregivers."
"All the adults in H's life agree that H strongly resembles her genetic father, A. He is from country Y, and she shares his skin colour and the colour of his eyes and hair, as well as having similar facial features.
A little later in the same report, she states:"H's background is that of a child with intended gay parents with genetic relationships with A, who is from country X, and a Spanish egg donor."
She also recognised that she had two English parents who were in a heterosexual relationship. She considers that, if H remains with C and D, H will be recognisable as being different from other members of the family and may begin to feel uncomfortable having always to account for that difference when she meets people. She would be the only non-genetic child in C and D's family.
(1) That placement, in my judgment, will best meet her identity and needs. I accept the rationale set out by Ms. Adams; that is H's identity in the wider sense of her being a child of intended gay parents with a genetic relationship with A, who is from country X, and a Spanish egg donor. It would be for her a lived experience on a day to day basis which would meet her welfare needs.
(2) There is no doubt B and A can meet H's day to day physical, emotional and educational needs. A's evidence, in particular, about talking and singing to her in his native tongue was particularly poignant. His evidence showed how he was attuned to H's needs.
(3) In my judgment, B and A will best be able to promote the relationship with C and D. They have remained positive about their significance in H's life, despite the difficulties there have been in the adult relationships.
(4) I recognise H will lose the sibling relationship and C and D's' family contact, but that has to be balanced with the other considerations and their relationship will clearly be maintained through contact. I consider it unlikely that C or D will significantly change their views about B and A's care and that the undermining is likely to continue which impacts adversely on B and A's ability to provide safe, secure and stable care for H.