England and Wales Family Court Decisions (High Court Judges)

Neutral Citation Number: [2014] EWFC 55

Case No.MB14C00196

IN THE FAMILY COURT

AT MIDDLESBROUGH

Russell Street

Middlesbrough TS1 2AE

13th June 2014

 

 

BEFORE:

 

HER HONOUR JUDGE MATTHEWS QC

sitting s.9 as a Deputy Judge of the High Court Family Division

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Re A

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Judgment

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of 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.

 

Her Honour Judge Matthews QC:

 

1.      A was born in 2013 and is now one year of age. She is a little girl who is a product of a partial surrogacy agreement between her biological father, JD, 43 years of age, and his partner, AC , 47 years of age, and her biological surrogate mother, Wendy , 27 years. The adults met via an internet website upon which Wendy had posted her details effectively offering herself as a surrogate. AC saw those  details  and  contacted  Wendy and  the  matter  swiftly proceeded  from  there.  I will rehearse the matter in more detail in due course but, very briefly, an arrangement was reached between Wendy , AC and JD in 2012 that Wendy would carry a child for them using her  own egg and JD’s sperm.

 

2.      When A was born she was handed over to JD and AC shortly afterwards.  There is a substantial dispute between the parties as to what contact was to take  place  between  Wendy and  A  thereafter.  The  relationship  between  the  parties deteriorated after handover, particularly as a result, seemingly, of Wendy not knowing that the couple had left Lincolnshire where she thought they resided and also a dispute about money and perhaps ongoing contact to A .

 

3.      JD and AC applied to the court for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 on 10th  July 2013. This application was opposed by Wendy ; she also applied for residence and contact on 16th  July 2013. As a result of the lack of consent from Wendy , JD and AC changed their application to one of residence. In due course, after the involvement of the appointed CAFCASS officer, the local  authority hereafter referred to as ‘local authority’ in this judgment, being North Yorkshire County Council, issued care proceedings and subsequently placement order proceedings. The care plan of the local authority is for permanent placement by way of adoption outside her natural family. A remains living with her father, JD, and AC at the date of this judgment. Paternity testing has confirmed that A’s biological father is JD and her mother is Wendy.

 

4.      The first application in time was that of JD and AC for the parental order. When it became clear that this order could no longer be granted, they changed their application to seek a Residence Order. The second application in time was for a Residence Order by mother. The application for Residence by JD and AC was made on the basis that they did not intend to promote any contact at all to natural mother, Wendy.

 

5.      The CAFCASS officer, filed a report on 16th  October 2013 in which she suggested that the local authority should prepare a report under section 37 of the Children Act  1989.  This  report  was  filed  on  3rd   February  2014  and  indicated  that  the  local authority would be issuing a care order application  very shortly.  The local authority indeed applied for a care order on 7th  February 2014; that is set out at B1 to 17 [Page numbers are references to the Court bundles]. This was followed by an application for a placement order; that is set out at at H1 to 8.

 

6.      I have had consistent management of the proceedings since the matter was transferred to this court by Mr.Justice Jonathan Baker. I directed that the applications be consolidated and be heard on 7th  April 2014 before Mr.Justice Bodey. The trial was subsequently  devolved to me and commenced on 6th  April 2014. The original time estimate of four days has evolved into eleven days with a twelfth day for judgment today.

 

7.      While the case has always been a complex one, the twists and turns of its progress could not have been foreseen by the advocates. By the time of the conclusion of the evidence on 10th  June the mother, Wendy, was supporting the care planning of the local authority to place her daughter for adoption. She was no longer seeking a residence order for A in her favour, together with her partner, NC.  Her progress to that position will be detailed later in this judgment. The appointed Children’s Guardian in the proceedings, supported the local authority care plan for adoption. She said in her evidence to the court that she wanted to endorse, in the strongest terms, everything she had said in her report. No other orders, she thought, than those sought by the local authority would protect this child.

 

8.      AC and JD finally asked the court to make a residence order jointly in their favour but did not support Wendy as a secondary option rather than adoption as they previously had done.  They seemed unclear as to their final position in respect of whether Wendy should have  ongoing contact  to A in the future if she remained  in their care.  They were completely   against  contact  at  the  commencement  of  the  trial;  subsequently  they converted to a position during the trial whereby they favoured regular monthly contact to Wendy . They seemed to have reverted back to their original position by the conclusion of the trial but seemed unsure.

 

9.      No party has sought to suggest that if A cannot live with her father and his partner she should reside in long term foster care; nor are there any other family members who are put forward as alternative carers. Therefore, if the threshold criteria is found to be made out, the welfare balancing exercise is to be carried out as between the draconian option of adoption, as a last resort, and that of remaining in the care of father and his partner, AC.

 

10.  This case represents a tragedy for all concerned but most particularly for the child at its centre. It is a cautionary tale as to what can go wrong in unregulated surrogacy. Such arrangements can no doubt work very well and there are likely to be many happy families in this country where surrogacy has been a success.   However, because of the special nature of surrogacy arrangements, they demand mature, balanced and sensitive handling. Surrogacy should not be approached without very considerable and careful reflection in respect of all of the ramifications for the child and the members of the families involved. A child is not a commodity to be bought and sold. This child is an individual for whom the consequences of the arrangements will have a lifelong impact.

 

11.  The threshold criteria asserted by the local authority is set out at A9 to 12 in the bundle as drafted by counsel. The parties have respectively responded to those documents at A13 to25. No allegation of past harm relating to A is put forward; the allegations all relate to the alleged risk of future emotional harm. The court is no longer asked to make a parental order and therefore the court is considering the application for the care and placement orders by the local authority at the same time as the residence application by AC and JD. If the threshold for local authority intervention is crossed, the court should pass on to consider what, if any, order is required to meet the welfare of the individual child by applying the welfare checklist criteria set out in section 1 (3) of the Children Act 1989 and the court should then consider making the least interventionist order necessary. The question of what order should be made clearly engages article 8.

 

12.  When considering whether to make a care order, the court must treat the welfare of the child as the paramount consideration and this involves taking into account, in particular, the factors identified in section 1(3) which include in paragraph (g) therein the range of powers  available  to  the  court.  A  care  order  is  a  very  extreme  order,  a  last  resort, particularly when this results in a child being adopted against the wishes of their parents. In this case one parent effectively consents to the adoption and one does not however the fact that one does not and one wishes to care for the child is the most important feature. The court cannot properly decide that a care order should be made unless the order is proportionate and necessary, bearing in mind the requirements of article 8.

 

13.  Where the plan is adoption, a high degree of ‘justification’ is required before such an outcome is endorsed as being ‘necessary’, as per the European Convention article 8, or indeed   ‘required’,   section   52(1)(b)   of   the   Adoption   and   Children   Act   2002. ‘Necessary’, in the words of Hale LJ, means ‘where nothing else will do’, Re B (A Child) UKSC 33. This should only be where there are exceptional circumstances because the child, of course, has, as far as possible, a right to know and be cared for by his or her parents. I bear in mind all of the guidance of Hale LJ in respect of the need for significant harm to be ‘considerable, noteworthy or important’ in assessing the circumstances of this case.

 

14.  I  also  bear  in  mind,  as  Ms  Hunt  representing  AC,  quite  rightly  reminds  me,  the observations of Hedley J in Re L (Care:Threshold Criteria) [2007] 1 FLR 2050, that society must be willing to tolerate very diverse standards of parenting including the eccentric, the barely adequate and the inconsistent. If this were a case in which merely eccentric parenting were the concern I would be the first to point it out and would not waste the court’s time over eleven days.

 

15.  However, the circumstances of this case are exceptional, even in my experience, and have required close and anxious scrutiny. At the commencement of the case I was concerned as to whether the risks for the future were soundly based but, very sadly, as the matter has progressed the concerns, first signalled by the Guardian and then by the local authority have been fully exposed, often by the continuing behaviour of the parties.

 

16.  A child, of course, also has a right to be protected from harm. The court has to balance the competing options for this little girl by examining the advantages and disadvantages of all of the parties’ plans for her. Where the issues before the court include adoption, as they  do  for  A ,  the  evaluation  must  be  undertaken  in  the  context  of  the  welfare provisions  within  the  Adoption  and  Children  Act  2002,  section  1.  In  such  an application, that section provides that:

 

‘The  paramount   consideration   of  the  court   must  be  the  child’s   welfare, throughout his or her lifetime.’

 

17.  Section 1(4) (c) requires the court to have regard to:

 

‘The likely effect on the child (throughout  his life)  of having ceased to be a member of the original family and becoming an adopted person.’

 

18.  This is an exquisitely poignant issue for A, given the circumstances in which she came to live.

 

19.  Threshold findings provide an evidential basis upon which the court can consider and balance the various options. The local authority submits that there is a significant risk of emotional harm in the future to A     but cannot point to any past harm having been inflicted upon her by AC and JD. Even if I find that the evidence establishes such a future risk, it is not the only determining factor. One of the matters which falls for consideration is whether the risk that I have identified can be reduced by services or work being put into the family by the local authority, or by the making of statutory orders, for example. I will deal with that issue in due course in this judgment.

 

20.  In assessing the local authority threshold, I must evaluate the evidence by applying the civil standard of proof, being the balance of probabilities; nothing more or less than that will do. Father and AC apply for a residence order under section 8 of the Children Act 1989  and  again,  in  approaching  this  application,  A’s  welfare  is  my  paramount consideration and I again apply the welfare checklist under section 1(3) (a) to (g).

 

21.  The central welfare question for the court to consider in this application is, in respect of A’s upbringing, is whether she should remain in the care of her father and his partner, with or without a statutory order, or whether North Yorkshire County Council should be allowed to continue to plan her future as they have detailed in their final care plan, dated 9th April 2014, D12 to 22.

 

22.  The wording of certain elements of the welfare checklist involves a comparison of the relevant options that are being considered such as s.1(3) (c):

 

‘The likely effect on him of any changes in his or her circumstances.’

 

Or section 1 (3) (e):

 

‘Any harm which he or she has suffered or is at risk of suffering.’

 

And section 1(3)(f):

 

‘How capable each of his parents… is of meeting his or her needs.’

 

23.                         In A’s case, the impact of any change is a consideration  of the prospect of being removed from the care of AC and JD which is bound to be traumatic for her as this is all she has ever known in her short life. In her way, she appears to be perfectly happy in their care and so any move to alternative care will be very significant for her. The potential the  strengths   and/or  weaknesses   of  the  local  authority’s   capacity  to  fulfil  their commitments to this child. They have identified a fostering to adopt placement for A which would mean that, if the match was approved, she would not have to move again once  placed  there.  This  would  reduce  the  emotional  impact  upon  her  of  the  local authority’s plan.

 

The Background to these legal proceedings

 

24.                         Turning to a more detailed background of the matters leading up to legal proceedings being initiated, it is important to highlight that over the years there have been significant concerns about the welfare of AC’s other children. Three of AC’s children, KF, born in 1986, LF, born in 1988; and PF, born in 1989 were placed in foster care in October 1991 and were made subjects of care orders in 1992. They continued to have contact with AC and were on child protection plans from July 1990 until 1995 and June 1998 to January 1999. They were eventually returned to her care but AC has no contact with those children at all now.

 

25.                         AC’s other two children, R, who was born in 1998, and who is therefore 16 years of age, and D, born in 2001, therefore 12 years of age, reside with AC and JD. Ms C has a significant history of anxiety and depression; she has historically suffered from schizophrenic behaviour and has struggled with alcohol abuse in the past. She is currently prescribed  mood stabilising and anti-depressant  medications.  R and D have mild to moderate special educational learning needs. D has a diagnosis of ADHD and co- morbid oppositional defiant disorder.

 

26.                         D has also been treated for social and separation anxiety and episodes of depression. There has been significant local authority involvement with AC and the children over the years in Durham, Hartlepool, Lincolnshire and North Yorkshire. R and D were made subject to child protection plans from 2nd  February 2011 until 15th  March 2011 and, had they remained in the Durham area, it seems likely that care proceedings would have been instigated.

 

27.                         AC has, at times, clearly been unable to meet R and D’s needs and there have been concerns  about  their  exposure  to  domestic  violence,  physical  chastisement,  chaotic lifestyle, frequent house moves, insufficient stimulation, inadequate supervision, lack of routines  and  boundaries  and  also  AC  being  negative  towards  the  children.  Ms  C frequently reported that she was unable to cope with the children and requested that they be placed in respite care. Although AC has expressed that she is coping better with the children since being in a relationship with JD, the local authority in this case remains concerned that the couple are unable to meet the children’s emotional needs.

 

28.                         AC and JD, it is suggested, embarked on the surrogacy agreement without discussing the matter properly, or at all, with R and D; without preparing them for this or considering the impact upon them. AC left R and D for seven weeks so that she could provide support to Wendy during the pregnancy and lied to the children about the reasons for her being exact number of those is in some dispute.

 

29.                         AC and JD re-registered D and R’s birth certificates and each declared that JD was the children’s natural father, as set out at F3 to 8.  The local authority cites as part of the threshold the dishonesty in those actions and the failure to understand the importance of the truth of the children’s identity for their future emotional wellbeing.

 

30.                         JD also has a daughter to his previous marriage. I say his previous marriage but he is still not divorced and no steps seem to have been taken to embark upon divorce for, I am told by him, financial reasons which are not clear to me given the substantial amount of monies  that  have  been  paid  over  to  facilitate  this  surrogacy.  JD’s  daughter  by  that marriage, T, was born on 15th September 1999.  She is a regular visitor to the home of JD and AC; sadly she has some fragility herself in that she has been self-harming and that serves to place a further strain on the household.

 

31.                         The  local  authority  cited,  at  the  commencement  of  the  case,  that  AC seemed  to  be suffering with current, rather than just past mental health concerns as a result of her presentation  to  ,  a  health  care  practitioner  and  disability  assessor employed by ATOS on 18.2.14. It was the content of what she told her , that she said that she had been hearing voices telling her to harm herself and the children, albeit that the health practitioner recorded that AC stated that she would not act upon these, which caused concern amongst professionals. AC and JD have denied the truth of this interview with the health practitioner and  allege  that  AC  was  distressed  during  the  interview  because  of  an  internal examination inflicted upon AC by the health practitioner . I will turn to this matter in more detail in due course.

 

32.                         As I have already indicated,  Wendy relinquished the care of A shortly after birth and placed her in the care of JD and AC. There is clearly a lack of emotional attachment between Wendy and her daughter, A, although I am sure that she cares for her daughter as I am quite satisfied both JD and AC care considerably for A, who they call ‘A’.

 

33.                         The local authority at the beginning of the case were very concerned that Wendy, who was putting herself and Mr Cu forward as carers for A, had neglected the emotional needs of their own daughter, C, by failing to consider the impact upon C of the surrogacy arrangement. It is also submitted by the local authority that the couple had continued to neglect C’s emotional needs by having photographs of A in the home, talking to C about her ‘sister’ and discussing issues about this with C.

 

34.                         It is also correct to point out that Wendy left C to stay with AC and JD for a week during her pregnancy and, most concerningly , Wendy stated to the key social worker that she intended to enter into another surrogacy arrangement in the near future which the local authority considered demonstrated her inability to prioritise C’s emotional needs .Wendy appears to now have changed her position with regard to embarking on another surrogacy.  She submits that that would be not in C’s best interests.

35.                         It would be trite to say that this case has been eventful; the evidence has been and incredible at times. The old adage that one weaves a tangled web when you practice to  deceive has been proven many times over.  Despite having heard evidence over a substantial number of days and having heard from JD and AC twice, and from Wendy, I am still not satisfied that they have shared with the court the full truth in respect of the events relating to their past history and the recent past regarding the surrogacy. There has been a concerted effort to present the court, in my judgment, with a sanitised account which would suit the case of an individual party at a given time. I do not include Mr Cu in this assessment as he has only given evidence once and he had little relevant evidence to say at that stage of the proceedings when Wendy had already decided not to pursue residence In my judgment, Mr Cu has clearly had something of a walk-on part in this drama.

36.                         However Wendy, A C and JD have all presented to the court extremely badly. They have all lied at times, sometimes extensively, in relation to important events; credibility ratings in respect of all three of them are extremely low. Unless I have some tangible, concrete, independent evidence which I can rely upon to support what they say, I have to consider their evidence with suspicion. I have given myself a Lucas direction in respect of the evidence of all three parties.

 

37.                         I completely understand that this case is a very important matter to them all and that they may be desperate to achieve their goal and create a good impression and that this may have caused them to lie in relation to certain matters. This does not, of course, mean that they will necessarily lie about all matters. However, in respect of all three parties, they have,  in  my  judgment,  lied  so  much  during  the  course  of  events,  touching  on  the conception, birth and short life of A that I find myself unable to determine the truth in respect  of  some  of  the  issues  in  the  case  as  a  result  of  their  mendacity.  They  are unreliable people; their association with the truth appears to be loose and fleeting and dependent upon personal gain.

 

38.                         In any event, such a myriad of issues have been thrown up that it is impossible and, in my judgment, unnecessary for me to determine them all. I will determine what I can and what I consider to be necessary to make the important welfare decisions for A.

 

39.                         Even when these three parties have been caught out in lies, they show little if any shame as a result. Every effort has been made during the course of the trial to reinforce the importance of being truthful in order for the court to make the correct determination for A. I am quite satisfied that they will have been appropriately advised about this, in addition to my own strictures. However, all three have continued to attempt to manipulate and deceive the court, right up until the conclusion of the evidence, as I hope will be clear from this judgment.

 

40.                         I am quite satisfied that had this “pantomime” of a trial, and I do not say that lightly but because the parties have treated the court with such contempt, continued for another eleven days, that despite the skill of counsel involved, the complete truth would still not have been disclosed. Rather, that more allegations and counter-allegations would have been  traded  with  little  concern  shown  for  the  child  at  the  centre  of  this  unedifying the case against them.

 

41.                         During the course of the trial, Wendy has frequently not been in attendance;  she has changed her position, at times, daily. She has failed to respond to a witness summons for her attendance and left the jurisdiction on the same day she was apparently too unwell to attend the court. The parties have been having secret negotiations that they apparently have not told their legal representatives about, or not told them at the relevant time. They have reached agreements which they have then resiled from, money has been paid to Wendy by AC during the course of the trial and A has been taken off for contact in secret.

 

42.                         It is impossible to do justice to the development of this case during the course of the trial in this judgment. It is a clear example, however, of the unique position of the trial judge to assess the evidence and the parties. New evidence has continued to be produced and allegations traded, right up until the final day, with even the police being involved by AC, at the last minute. I have declined to engage with the police until the judgment has been given.

 

43.                         In addition to the parties themselves, I have heard evidence from the key social worker , who was the co-author of the section 37 report and the care plan. I am grateful to him for his professionalism in such a difficult case. I also heard from the health practictioner  who is, as I have referred to, a nurse working for ATOS who carries out health assessments on the company’s behalf and who interviewed AC on 18th  February 2014. In addition, as I have indicated, I heard twice from AC and JD, at length, and once from Wendy , her partner NCu, and her aunt AMR. I do not consider that AMR’s evidence assisted me greatly in the grand scheme of the myriad issues in this case. A handwritten statement from MH was produced on AC’s behalf but that witness did not materialise despite her evidence remaining the subject of challenge. A letter from a friend of the couple, DaCr, was handed in on 9th  June 2014 but no suggestion of her coming to give evidence was canvassed. I have not been able to give much, if any, weight to these documents as a result. They were, I consider, likely to be highly partial witnesses in any event.

 

44.                         I did, of course, also hear oral testimony from A’s Guardian, to whom the court should  acknowledge  a huge debt.  The Guardian was appointed  in the private  law proceedings as a result of her expertise in parental order applications. It was her sharp perceptive  skills  which  alerted  the  court  to  the  fact  that  the  local  authority  should investigate this matter. Public law applications are not her speciality but I determined that she should remain involved when the matter moved into that arena as I considered it vital that there was some continuity of observation of the key personnel herein. Her initial assessment has proved invaluable in this case and many of her intuitive views about the likely problems here have been clearly exposed by the evidence.

 

45.                              It is trite also to say that cases turn on their individual facts but that is never more true than in a case such as this. Unless one experiences the forensic process in this case, one cannot possibly comprehend the complexity and importance of the issues for the subject child.

 

 

The health practitioner and the ATOS assessement on 18.2.14

 

46.                         There have been many themes in this case but the theme of the chance discovery of information which the parties did not want the court to be aware of was a strong one. The evidence of the health practitioner came to the court as a matter of pure serendipity. On 18th  February 2014, AC was required to attend an interview in respect of her incapacity benefit to make a current assessment of her problems. Preparatory to that interview, AC had submitted a questionnaire, dated 19th  August 2013. This form, she says, was filled in for her by a friend, MH, who is deaf and apparently lip reads. She says that Ms H simply filled in the form and did not tell her what she had actually written down. There are a number of problems with this assertion on Ms C’s part.

 

47.                         Ms H submitted a handwritten letter to the court stating that she was sorry if she had made mistakes on the form. She did not say really what those mistakes were nor why they had happened. AC could not say what the alleged mistakes were when she gave evidence either and therefore I cannot really understand the purpose of that letter being provided to the court. I deal with this evidence firstly as it provides a window into how AC operates and provides some indication of the problems that she has and how she manages her life. AC’s life, of course, has been extremely eventful; there has been a great deal of tragedy and sadness in it too. She is, as a result of the life she has had, a very damaged and vulnerable woman, in my judgment.

 

48.                         The fact that she has been said to suffer from a learning disability has been heavily relied upon during the course of this hearing however the extent of any learning disability has never been properly assessed. There has been a persistent lack of cooperation by AC with the learning disability team and the mental health professionals. She has said that she does not accept that she has a learning disability. This local authority and the previous local authorities involved with the elder three children can hardly be criticised if AC does not want to take up help on offer.

 

49.                         So, for example, as recently as 31st  March of this year, AC said that she did not want to have  counselling  [F19].  AC  does  have  some  difficulties  with  reading  and  writing however  that  does  not  restrict  her  ability  to  communicate  at  all,  in  my  view.  It  is noticeable that she was the one who researched surrogacy on the internet; she was the one who made contact with Wendy over the internet; she was the one who carried out the written communication with Wendy by WhatsApp, text or in other forms. AC was the one who wrote the letter to the court during the course of the trial summing up the couple’s change in position with regard to contact between Wendy and A.

 

50.                         I have, of course, taken into consideration the recent assessment of AC by Anne Elliott, dated 30th  April 2014, with regard to her speech and language skills. I note that she has difficulties with longer and more complex words and sentences and that she also has difficulties with some structures and concepts but the conclusion was that there was no need for AC to have speech and language therapy.

 

51.                         Having  seen  what  AC  is  capable  of,  in  terms  of  written  communication,  I  do  not understand why MH had to fill in the Limited Capacity for Work questionnaire for Ms C. This seemed a particularly strange idea given that JD was the ideal person to fill it in. He knew her everyday problems, whatever they were. It was even more strange given that the person filling was said not to have communicated to her what they had written and yet she allowed that form to be submitted without being checked.

 

52.                         I am not a handwriting expert but the comparison between Ms H’s written letter to the court and the handwriting on the form clearly, in my judgment, shows different writing.  I do not accept that it is Ms H who wrote this document anyway. It is not clear what is actually incorrect about the information given. This is not an important issue in the case. It is only one of very many issues in the grand scheme. The writing on the form is, however, similar to that of AC on her handwritten letter to the court, at C175.  Why AC wrote  the  proposal  for  contact  as  between  the  parties  on  2nd   May  2014,  given  her problems as have been relied upon in this case, I do not understand. It is not clear why JD did not provide the document given that he has no such similar problems.

 

53.                         What  actually  happened  at  the  interview  with  the health practitioner  on  18.2.14  is  much  more important than the content of the form. In addition, the allegation which AC has made about the interview since that time indicates a great deal about her. In respect of the information on the form, the illnesses which are specified by AC, either through Ms H or not, relate to anorexia and bulimia, which are said to be current, post-traumatic stress disorder and nerves and anxiety. The illnesses identified are said to vary dependent upon her circumstances. AC says that she has very great difficulty reading and understanding things  on  a  day  to  day  basis  and  cannot  plan  ahead  or  break  a  routine.  ‘My communication is limited’, [E39]. I would suggest that that is rather an exaggeration on her part.

 

54.                         Whilst Ms C clearly has her limitations, she has not had any difficulties communicating with Wendy nor indeed in giving evidence in this court. At E44 to 45 on the form for ATOS there is a repetition of this, effectively saying “I cannot read”, which is not true. She has difficulties reading but she can read. In addition she sets out her problems with regard to back pain. At E48 it is suggested that she cannot cope with change; that she gets nervous and stressed and anxious if there is change. This does not fit, of course, with the choices that AC has made in her life, of moving from Durham to Lincolnshire, several moves in Lincolnshire and then to Whitby and then deciding to embark on the surrogacy arrangement.

 

55.                         At E48 it is also suggested that she can “never” manage to plan and that she cannot start and finish daily tasks. This does not seem to fit with the care of a young baby or toddler, which she has taken on whilst JD is working at their B & B, nor indeed the care of two children who have significant needs in R and D. The content of what it is attributed to her there would cause questions about her ability to cope in the long term with the care of A, a growing toddler, and, in addition, with R and D. AC also says on the form that she “can go out to places that she knows, if someone goes with her”.

 

56.                         This is not consistent with her alleged four hour walks with A in the pram. She later says,  at  E51,  that  she  does  not  like  to  go  anywhere  alone.  At  E50,  bizarrely,  it  is  suggested that she cannot get food and drink to her mouth without help or prompting from another  person.  This  is not the picture  the court has been  given  although  it is consistent with the dependency that AC described to the health practioner in interview in which she says that she heavily relies upon her daughter at times.

 

57.                         The GP notes do not support her assertion, at E51, that she is still waiting for counselling. AC will always be waiting for counselling if she does nothing to get it. She describes also having fits, dependent upon her stress level at the time. This, of course, is said to be an incorrect assertion made by MH, as it is said that AC has not had a fit since 2010. The form is signed by AC; there is no mention on the form of a hysterectomy, partial or otherwise; nor is there any mention of hysterectomy in the list of medical conditions in respect of the client interview form completed by the health practitioner on 18th February 2014, at E22. The list of conditions from which AC is said to suffer are: epilepsy, which AC has not actually been properly diagnosed with; mental health problems; asthma and back problems.

 

58.                         The whole purpose of this interview was to assess AC’s current conditions, not how she was functioning in the past. I am satisfied, so that I am sure rather than on the balance of probabilities that AC has blatantly lied about what happened at this interview. AC’s evidence was that the health practitioner got most of the information correct but that the account that she [AC] was giving was in relation to the past rather than the present.

 

59.                         AC says that during the course of this interview  the health practitioner perpetrated  a serious sexual assault against her by digitally penetrating her to ascertain whether she had had a hysterectomy. There are a number of reasons why I dismiss this scurrilous allegation. Firstly, the health practitioner was striking in her presentation as a witness of the truth, especially in contrast to the parties in this case who have lied so much to this court. Secondly, it was hard to understand why this smart, attractive, young woman would want to carry out this sexually abusive act on an older woman in this context; even if she was so inclined she would clearly be putting her job in jeopardy and risk prosecution.

 

60.                         Thirdly,  there  was  no  need  to  examine  AC  to  ascertain  whether  she  had  had  a hysterectomy as it was not one of the conditions relevant to the interview. Fourthly, AC took no steps to report this sexual assault upon her or complain to anyone until the content of her concerning interview was raised with her about a month later. Fifthly, some four months afterward, AC still has not made any complaint to the police about this alleged sexually abusive act and yet she visited the police last weekend and made a detailed statement about alleged threats made against her by Wendy .Sixthly, the health practitioner was so concerned  about Ms C that she made an immediate  referral to AC’s general practitioner. Why would someone who has just perpetrated a gross sexual offence draw attention to what she had done and risk exposure by involving a health care professional immediately afterwards?

 

61.                         I remind myself that the police attended at AC’s home on the same evening of 18th February 2014 and no complaint was made to them by AC about sexual abuse at that point. In addition there is the content of the health practitioner’s recording of the interview and AC’s  presentation  within  that  interview.  AC’s  presentation  was  so  concerning  that the health practitioner filed a report of unexpected findings following medical examination on the same day. This is set out at E58. Her concerns related to AC’s account of active hallucinations, both auditory and visual, voices telling her to hurt herself and her family, recent suicidal tendencies and that AC was saying that she needed help from friends with getting out [of the house].

 

62.                         The health practitioner notes down that she rang the GP surgery and asked the GP to call her back if she could; she clearly felt so strongly concerned about the matter. It is not just the information given orally by AC which concerned the health practitioner , but of course AC’s physical presentation and that cannot be a matter of mistake, as Ms C suggests, in terms of the written material.

 

63.                              At E18, what is recorded is that AC has told the health practitioner that she has difficulty coping today. The health practitioner says that AC’s behaviour was ‘bizarre’; she was acting bizarre. She had poor rapport and eye contact. There were tearful outbursts. This behaviour was not explained by AC at all in evidence. AC was apparently rocking in her chair and she looked to be hiding in her coat at times. The health practitioner is a registered nurse and an approved disability specialist. She is used to seeing fragile people; that is the whole tenor of her job. I cannot repeat the whole of the detail set out at E23 but it is noticeable that AC does not mention A or JD, she only mentions R and D and ‘a friend’.  She does mention an old friend called NS; there was no mention of NS in the file notes in advance of interview, the health practitioner told me, and therefore this information could only have come from AC and yet she denies it.

 

64.                         AC is recorded as saying she had moved to her current placement in March 2013 as her son and ex-partner had found her. This is not true. AC also says, according to the health practitioner , that she has been abused by people all of her life since she was six weeks of age; that she has suicidal thoughts ‘still’ and that she has acted on them ‘recently’; the last suicide attempt was four weeks ago, in which she tried to hang herself.

 

65.                         In the interview AC said how she was worried about telling her doctor about her current presentation because she was worrying about losing the children as in the past they had been taken away from her when she had been sectioned and she did not want to lose the younger children. She talked about her friend giving her medication; that, in terms of the epilepsy, she had three to four fits a day, the last one on Monday. This is a clear timed account about when these symptoms were persisting. That account does not fit with that of MH in her letter.

 

66.                         The  general  practitioner  for  AC,  responded  to  the health practitioner’s urgent referral and visited AC at home on the evening of 18th  February. The G.P contacted the local authority herself in advance of her visit with regard to the children who were in the home due to potential child protection concerns. It was only in the course of her visit that she discovered that there was a young baby in the house. She was not aware of A’s presence in the household from the referral itself because the health practitioner’s notes did not include any disclosure by AC of a dependent baby. Of course, ‘A’is not registered at the address at which Ms C lives; she is registered, seemingly, at the address of the B & B where JD is registered as living.

 

67.                         During the course of the interview with the health practitioner, AC mentioned her one friend, N, in Peterlee. She did not mention DaCr but she did mention N to the GP as well later that evening. Also, to the general practitioner that evening, AC mentioned current auditory and visual hallucinations which had been worse in the past nine months she said because of the court case. AC reported that the voices told her to harm herself and that she would scratch her arm and bathe in bleach. When Ms C was asked about this in evidence, in my judgment, she minimised these actions, talking about a scratch to her arm as though it was a scratch that anybody might come by as opposed to something that was deliberately caused as a result of mental distress, which is clearly what she was talking about to the general practitioner.

 

68.                         On that evening of 18th  February 2014 AC told the GP that she had, when she moved to Whitby, expected her mental health issues to be picked up [by health professionals] but in fact AC had been offered a number of appointments for a mental health review on 1st November 2013, 19th  November 2013, 17th  December 2013, 7th  January 2014. She had not attended any of them. She did not even attend the new patient check which was provided  for  her  in May 2013;  that  is at E59.  Subsequent  to  this  interview  on  18th February 2014, she also failed to attend another appointment with the mental health team on 3rd  March 2014. It is noticeable that there was a previous significant failure to attend an appointment set up for her with a clinical psychologist in Sleaford on 11th  February 2013.

 

69.                         It is fair to acknowledge that the GP was not concerned by the atmosphere in the family home that evening when she visited. She did not consider that AC had a severe learning disability and that is also my assessment having seen AC over a protracted period and having heard a great deal about how she manages her life. I have had some considerable experience  of representing  people  with  learning  disabilities  during the  course  of  my practice and I am well versed with the difficulties and problems that they encounter. It is noticeable that when the G.P saw AC again for follow up on 21st  February 2014, in the surgery, in her opinion, AC seemed a bit stronger in herself.  AC told her that she had felt better since talking to her on the home visit. So, I deduce from that that there were some problems on 18th February 2014, even on AC’s own account.

 

70.                         Of course no complaint of sexual abuse by the health practitioner was made to the GP by AC; no complaint of sexual abuse was made to the police either. In fact, what the health practitioner said to the police on 18th February was that she had some personal issues which she was getting help and support with. I am not clear from whom she was getting help and support; she did not provide me with any detail about it.

 

71.                         I am also satisfied, so that I am sure, that the account that the health practitioner has given to this court of the interview on 18th  February can be relied upon in preference to that of AC. What does this mean in the scheme of this case? Had AC been trying to hang herself before 18th  February? Were the voices telling her to hurt herself and the children? It is true. I have pleaded with them both to tell me the truth. Is perhaps the account that AC gave to the health practitioner exaggerated for benefits purposes? Is this attention seeking behaviour by AC? I note at E61 that a mental health assessment previously considered that her unusual behaviour was attention seeking rather than truly psychotic.

 

72.                         Having watched AC closely over the eleven days of the trial, I do consider that there is an element of attention seeking to her behaviour. She is not a silent spectator like Mr D during the course of this trial.  During the trial, she chats to her solicitor at critical points of the evidence and makes a lot of eye contact with me. She does not shrink from such eye contact as she has attempted to suggest she has done at other times. AC did not present as the frightened vulnerable person she likes to portray herself as at times.

 

73.                         However, I do consider that she is an emotionally needy and vulnerable person; she needs JD and it is likely that she would not tell him if she had problems. She would not want to lose him. She has painted for JD a very bleak picture of her past and he clearly feels very sorry for her, as indeed most people would. He wrote me a long treatise at one point during  the  evidence  about  the  impact  upon  someone  who  has  been  the  subject  of domestic violence when he thought that I did not appreciate how AC might behave as a result of being such a victim. Of course, this court has very considerable experience of the  impact  of  domestic  violence  upon  people;  the  situation  with  AC  is  much  more complex than that. I am satisfied, on a balance of probabilities, that AC has learnt to be considerably manipulative and deceitful in order to survive her difficult life.

 

74.                         There was a time when she probably had a relationship with GR whilst stringing along JD at the same time. Perhaps she wanted to make sure she was not jumping out of the frying pan into the fire; I do not know but all the case recordings from Durham CC demonstrated that she and the children were clearly stating that she was having a relationship with GR.  JD clearly would prefer to think that he was the only source of her attention but the evidence corrects them both.

 

75.                         The problem with this case, as I have already indicated, is that so many lies are told that it makes it very hard to assess what is really going on. If what AC had said to the health practitioner is true then I have very severe concerns about AC parenting any child, let alone a young vulnerable one like A.     If it is true, of course, then she has blatantly lied to cover the problems up and likely JD has lied too as it is likely he knows about her real difficulties. If the account is only half true then I still have significant concerns about her mental fragility, her credibility and therefore her suitability as a carer.

 

76.                         Even  if  all  of  what  she  told  the health practitioner  is  a  complete  fabrication  then  it  still demonstrates that: her behaviour is truly ‘bizarre’ in acting out these behaviours from which she is not suffering; her credibility is non-existent and that she will go to any lengths to cover up her lies. There is, I am afraid, no level upon which the events of 18th February 2014 are not deeply concerning when assessing Ms C’s ability to safely parent A.

77.                         The ancillary point relating to her behaviour on 18th  February is that JD does not think it is very important. He unhesitatingly believes her version of events saying that the health practitioner must be lying to save her job. He does not question AC’s account; he does not even question  her  account  when  she  admits  to  lying  to  him  about  issues  over  promoting contact to Wendy and paying her money. That does not matter either apparently. He had told me in his first appearance in the witness box that AC did not lie. He seemed to be still attempting to suggest that she was a truthful person even after she had admitted lying to the court. He is completely lacking in objectivity towards AC and her actions and, in my judgment, he would be so in the future. It is hard to conjure up a worse example of AC lying but, given this gross and obvious one in respect of 18th  February, which he refuses to accept, I cannot see him being able to protect A from    any problems with AC.

78.                         The picture in relation to AC has been unstable for a very long time. She had a breakdown in 1991/1992; there was a suicide attempt then. Her mental health difficulties led to her eldest three children being placed in care; that is of course not her fault. She has a very significant history of anxiety and depression.  She is, as I have indicated earlier, still prescribed  mood  stabilising  and  anti-depressant  drugs.  She  had  post-traumatic  stress disorder diagnosed in 2008. She has previously exhibited schizophrenic behaviour and has suffered from alcohol abuse. That is not to suggest this is a current feature.

 

79.                         AC is still, in my judgment, likely suffering from the after effects of the considerable abuse which she was exposed to during the course of her life, both in her childhood and in her relationships with adult men. The bathing in bleach and the scratching of the arms are symptoms of her suffering, in my judgment. Even as recently, on her own account, as just before Christmas this issue of bathing in bleach was still prevalent.

 

80.                         She had considerable problems managing the care of R and D when she was a sole carer; these are very needy children and there were continual requests for respite care, I find on the available documentary evidence. I accept the records and I note that there are still considerable problems with regard to R and D. They have a good school, fortunately, and the teachers are supportive and the teachers say supportive things about Mr D and Ms C and I take that into account. However, I do not consider that the teachers have the full picture about this couple. Only the court has the full picture now, having the benefit of all of the assembled evidence.

 

81.                         I note that the couple were late for court one morning this week because there were some problems with D. There are all sorts of examples of the elder children’s needs and the demands that they place upon Mr D and Ms C. During the GP’s interview with Ms C on 18th  February, D came into the room several times seeking out his mother, no doubt worried about her. It does not help, of course, when the couple lie to the children about issues such as Ms C going into hospital when that was not true. It is bound to frighten the children.

 

82.                         The couple showed a callous disregard for the children’s feelings in saying that sort of thing. Between the various adjournments in the trial, there have been recent concerns about R and sexual photographs being received by her from adult males and about R considerable attention and protection in my assessment. I find that the needs of both of those children have taken second place since the surrogacy was initiated.

 

83.                         Both AC and JD have lied to the children about whether there was a baby or not; they lied to the school about it; they effectively called the children liars to the school; they lied to the children about AC going into hospital; they lied about where the baby had come from and they changed their account, again, about that. The children were left, no doubt, very  confused.  Huge  trust  issues  arise,  which  are  very  significant,  when  one  treats children in such a fashion even if the children do not have the considerable emotional needs which these two children do have.

 

84.                         All of this would be hard for any 16 and 12 year old to understand, but this is particularly so for two such vulnerable children. I find that there has been a complete failure on the part of JD and AC to consider properly, or at all, how this surrogacy would affect R and D and further to consider the impact of the surrogacy and their lies and how that would impact upon the court case and protract matters for the family. JD eventually admitted that they had not handled it well and that the children were now very confused with regard to the whole thing.

 

85.                         The changing of the birth registration of R and D in terms of identifying JD as their father was another very significant indicator of how the couple approach the children’s needs. I do not accept the account that they have given with regard to the registrar’s approach to changing the register in respect of these two children. I do not accept that the registrar would be prepared to sanction such a change which was untruthful.

 

86.                         Their account of these events, is part of a pattern of blaming other people who are not present.  It shows  a very poor  recognition  of the children’s  need  to understand  their identity, particularly given their own circumstances. In considering the evidence in this case, I consider that this pattern would likely be replicated with A. There was no need to change the children’s birth registration. This was more likely about adults’ wishes and wants, in my assessment rather than those of the children. Perhaps AC was trying to protect the children and prevent them being traced by their natural father, or indeed L, and prevent their father  being consulted  in the future about  anything to do with the children.  On one level, that is understandable, but it is not correct to effectively attempt to expunge the father from the record.

 

87.                         There are some echoes, of course, of that in the way that JD and AC behaved with regard to A’s birth certificate. AC attempted to distance herself from this by saying that she was outside holding the baby; I do not find that a good enough explanation but JD clearly accepts this. Why did they not say to Wendy that they wanted A to be called ‘A’?  That that is her name, this is our child, you have carried it for her, we want her to be called ‘A’. Why did JD not register his correct address? In my judgment, on balance, having considered all of the evidence, that this was a deliberate attempt, which JD effectively accepted in evidence, to evade Wendy. With R and D they said that they had asked the children about changing the birth certificates and that was what they wanted. This is completely inappropriate; the children were far too young to express a view on such an important issue. Again, these were adult issues, and adults should make the decisions.

 

88.                         With regard  to AC,  I find that there has been  an effort  to expunge  the eldest  three children from her life, effectively. There has been a repeated failure by her to mention them. She has cut them off completely. In L’s case, I understand that she is frightened of him after the appalling scene that he put her through when he held her at knifepoint with her younger children; that is a shocking state of affairs. But her only explanation for not having any contact with the other two children was that they had taken his side. I find that hard to follow given that L served a prison sentence for those actions.

 

89.                         There was no mention of the elder three children in the parental order application at all. There was no mention of the elder three children to Wendy . The. re was no mention of the elder three children when AC consulted her GP in Sleaford about breastfeeding.  She failed to mention her first three pregnancies on 17th  December 2012. Why would she not mention  that?  It  was  obviously  relevant  to  physical  issues  with  regard  to  her  body. However, she seems to want to pretend, in a way, that they did not exist. The omission of the elder 3 children from the parental order application may very well have been because the couple did not wish the court to know that there had been previous care proceedings with regard to those children which would raise questions about AC’s ability to parent.

 

90.                         I note, of course, as the local authority cite, AC’s abandonment of R and D to go and be supportive of Wendy for six or seven weeks; this is clearly a very substantial period. AC and JD have not given a consistent account about how many times AC saw the children in this period. It is interesting to note that AC would have been travelling back to Whitby to visit the children on the couple of occasions that she stated in evidence and therefore must have been lying to Wendy about where she was going because the couple admit that they had not told Wendy that they had moved to Whitby from Lincolnshire by this time.

 

91.                         R and D thought that their mother was in hospital when she was away for 6 weeks. The couple failed to explain what the children were told in relation to the hospital when they were brought up to visit relatives in the Durham area and see their mother. These were relatively brief visiting periods as I understand it from their evidence.  This is a clear prioritisation of the surrogacy over the needs of R and D. It was not enough, in my judgment to say that mother’s absence was compensated for by JD’s presence. AC is their mother, first and foremost, and they clearly need her. At best, the level of visiting between mother and children in this period was once per week, if that evidence can be accepted.  However,  I have to sound a note of caution  about their account  given the couple’s approach to the rest of the evidence.

 

92.                         I note, of course, also that D has been described by Ms C as ‘very clingy’ at the moment. I do not find that very surprising given all that he and R have been put through. There were clearly still management issues with R and D when JD and AC decided to go ahead with the surrogacy and that is clear from F157. The couple were not putting the needs of R  and  D  first  and  in  fact  mother,  AC,  has  a  long  history  of  this.  She  started  this relationship with JD and she introduced him to the children very quickly. She moved, or was prepared to move, from Durham to Lincolnshire, very quickly, without reference to the needs of the children.

 

93.                         When she eventually did move to Lincolnshire the family relocated several times and then moved again to Whitby.   I do not accept that Whitby is a centre of excellence for learning difficulties; even if I am wrong about that, and I have never heard it during the course of my sitting career, I do not accept, because there is no evidence to demonstrate, that significant improvements were achieved for D by the move. The only thing that has been cited to me is the provision of medication.

 

94.                         I do accept that in this home, for R and D, things are relatively stable now. There are positive reports from the current headteacher, as I have indicated.  In comparison to the past, which was for R and D frankly, pretty dire, then things are much improved for them now.  However,  by  lying  to  the  children  and  at  times  exaggerating  the  children’s symptoms, I do not find that Ms C has met their needs consistently. She is a lady for whom the school had at one time, eight different names recorded for her. She has moved the children about precipitately, as I have indicated. There was no need to remove the children to Whitby when they did. The result of this was a move into the B & B and sharing with customers, which was clearly frightening for the children, particularly R. D’s behaviour impacts on the whole of the family, that is clear and was certainly evident last year.

 

95.                         I am very concerned, also, about the account which has been given of the couple leading a  separate  financial  life.  They  claim  separately  for  benefits  and  give  two  different addresses, Mr D claiming for A and Ms C claiming for R and D and being their carer, as I understand it, for the purposes of claiming benefits for them. Their evidence towards the end of the trial was they did not seem to know what money each other had. AC told me that she had paid off Wendy to the tune of some £1,400 from her own account, without JD knowing. He said he did not know what money she had at all but that she would save from her benefits towards holidays for the family. When she gave evidence, she said that this £1,400 which she used to pay off Wendy, was money left over from CICB damages and/or an inheritance. Then finally she mentioned holiday savings. I was not clear which, if any of those was the source of the pay off monies to Wendy.

 

96.                         There is also a very curious piece of evidence from a parental support adviser, who visited the family in the early spring of this year. AC told her that she had applied for housing on her own and asked her that she should not mention this to JD and that she would sort this out when they got a house. On the basis of what AC had told her, E.C refused to write her a supportive letter for housing purposes. AC could not explain this piece of evidence and I found it very concerning. JD knew nothing about this housing application he said in his evidence.

 

97.                         No application  had been made for housing on her own account.  Why would she be making a solo housing application?  I appreciate,  on one level,  this might  be simply was trying to get away from him, as she did get away from GR?

 

98.                         When AC parented alone this was not a success, in my judgment. There were ten years of local authority involvement; 35 referrals and no improvement and therefore by March 2011 the children were on the register. I do not consider that simply as a result of JD’s presence that the problems that were manifest in March 2011 have been completely resolved. It is right to say there are no referrals but there are no solutions either. There are a lot of difficult problems ahead with the management of R and D into adulthood and the couple have created a huge raft of problems by embarking on this surrogacy.

 

99.                         On days ten and eleven of the trial AC admitted lying to the court and everyone, in fact, on her account, about paying Wendy money and meeting Wendy taking A along.Deliberate lies were told by her to the court, apparently, in her evidence on 30th  April 2014. By this time of course the couple had changed their initial position of no contact at all to Wendy to an offer to promote monthly contact to her.

 

100.                     Eventually, during that part of the hearing, a note was handed in written by AC, which I have already referred to, setting out that proposal for monthly contact which the couple had agreed with Wendy .. During the course of her evidence on that day, 30th April, AC said she had not had any contact with Wendy since the last hearing. She denied taking A for contact on 26th  or 27th  April but in fact she later accepted that she had taken A for contact although the two ladies cannot agree which day it was. She also said, very clearly to the court on 30th  April 2014 that, no money changed hands between them in the last month. That was another lie.

 

101.                     In my judgment this late disclosure from AC has only been prompted and flushed out by Wendy’s admission of money changing hands and contact having taken place. In my view the court would never have likely known about what had been occurring if Wendy had not chosen to share it with the court. AC did not volunteer it and she said that she had lied to JD about these issues. Did Mr D know that A had been taken for contact and that money had been paid to Wendy which resulted in her temporarily changing her position to support JD and AC? In some ways it does not matter because if he did it shows that they are both utterly and completely dishonest and will lie and cheat to get their own way on anything. If it was only Ms C who knew then it does demonstrate that their relationship is not as close as they have made it out to be; that their functioning,  like their benefit claims, is separate or can be separate at times.

 

102.                     If AC has lied to him about these very important issues during the course of a court trial then there is a fundamental lack of trust and openness in the relationship and workers could not rely upon them to work honestly and openly with them in the future. I note, of course, that AC is saying that some of the workers she has had a bad experience with and therefore she does not trust them so I am truly concerned as to whether she can work openly and honestly with anyone given her history and her recent behaviour.

103.                     AC has apologised for those lies but it was a rather limp affair. The apology gave the appearance of ‘I am sorry I got caught out’. She said she only lied because she had been blackmailed by Wendy. She had been blackmailed for money and contact otherwise Wendy said she would tell L where AC lived. I do not know if that is true but I find it suspicious that I was only given this explanation after the whole payment and contact scandal had been forced into the open by Wendy. If Wendy was really threatening AC then why would she not draw this to the court’s attention, the fact of the payment and the clandestine contact arrangement?  I find that inexplicable. I find it inexplicable that JD did not know.

104.                     I bear in mind in approaching this piece of evidence that what AC has submitted on her form for benefits, is that she was too afraid to go out on her own. Yet, I have been told a story about AC getting into a taxi and travelling all the way to North Shields for contact with Wendy, the woman who is using her violent son against her. This is a decision which was said to have been made on the spur of the moment. This is the lady who is said not to be able to plan, who cannot break her routine who has achieved this without JD knowing and without  JD’s support.  I do not believe  that she could  manage  that, on her own account.

 

105.                     I find that whole scenario quite ridiculous. I do not accept that it was likely that she would do that without JD. I consider that JD would find her absence, for a period of five and a half to six and a half hours, concerning; particularly with A.      It is difficult to accept that he did not find this lengthy absence remarkable or even bother to ask her where she had been when she returned. It is more likely than not, in my judgment, that contact did take place on Saturday 26th April which is when it was originally planned for between the parties. JD and AC will likely not admit that because it demonstrates them, again, to be liars to the court and to have lied to the social work team who had asked pointedly about that Saturday.

 

106.                     This  assessment  of  the  evidence  does  fit  with  the  account  given  by  Wendy to the  teacher  at  her  daughter’s  school;  it  fits  also  with  the  date-stamped photographs which have been produced. I note that AC said at one point in her evidence ‘I was not around on the Saturday’ and that the discussion about ongoing levels of future contact took place on the Sunday. That may well be right because Saturday was about the contact. I am satisfied that JD is likely to have gone along with JD and that 2ND  contact also, more than likely, occurred on 30th April, after court.

 

107.                     It is an odd thing for Wendy to make up and when she gave that account about the 30th April contact, she was supporting J and A but still denying the contact on 26th April; so she has always  said  that  there  was  contact  on  30th   April.  There  was  a  lot  of  dealing  and negotiations taking place between the parties without the court’s knowledge in respect of issue which were relevant to the court. The parties knew that Wendy had no intention of coming to court, as I so find, on those three days from 30th  April. It is likely that this contact visit on 30th  April was a sort of ‘goodbye’, or at least a ‘goodbye for now’, visit before her leaving for Scotland which they also likely knew all about.

108.                     AC has sadly got herself into a position where it is very difficult for me to believe  anything she says at face value. She even had to admit further duplicitous behaviour when being recalled to admit the lying she had been exposed as committing, which I have already detailed. When recalled to talk about that lying and why she had perpetrated it, she  attempted  to  try and  prove  to  me  that  she  had  been  threatened  earlier  than  the documentary text that she produced to the court by Wendy. She then admitted that she had actually deleted texts on her phone, during the course of the trial, when the court was trying to examine her phone.

109.                     She said she knew that Wendy would not want anyone to see them. It is noticeable that the social worker had suspected that AC was deleting texts and I was told that earlier during the course of the trial. At that point Ms C said that her phone was locked and she would not be able to get any access to it. I do not know what the texts said which she deleted, although I doubt that it is purely what is alleged by AC. However, what I do know is that she clearly did not want the court to see them.

 

110.                     All of this does serve to very clearly demonstrate that, certainly at times, AC is not hampered by a significant learning disability; she is hampered by an inability to tell the truth which is also a significant handicap. Sadly, so is JD. He also has a problem with comprehending that it is not appropriate to lie to get your own way, particularly when the welfare of a small child is involved. He admits lying to Wendy with regard to the move to Whitby and deliberately registering A’s birth with his wrong address as he had moved two months earlier. He admits lying to the children and, in fact, also to their friend, DaCr, about what AC was doing when she was supporting Wendy during the pregnancy.He admits lying to the school too; that is at F26. He said that some relative was terminally ill which was not true.  I find that he lied in respect of the change of registration for R and D.

 

111.                     The surrogacy agreement  is untruthful; it had a false date in it. JD admitted that he deliberately falsely dated it. It was actually signed in March 2013 and was deliberately dated April 2012, he said this was done to make it look like they had known each other for longer because it was going to be used to submit to the court for a parental order. So he was prepared to rely upon a sham document, effectively, to get the order he wanted.

 

112.                     Indeed, the whole charade, as I will call it, over JD and AC completely changing their position in respect of what contact should take place between A and Wendy, has been full of untruths, in my judgment. This was a cynical attempt to manipulate the court and perhaps even Wendy.

 

113.                     JD, in particular, has always been strenuously opposed to any direct contact between A and Wendy and said at one point that this was a surrogacy, straightforwardly, and there was not going to be any contact. He opposed contact to the extent that he even refused to pass over Christmas presents from Wendy despite attempts by the Children’s Guardian to broker a compromise. However, suddenly, in a gap between hearing dates, JD says that he was converted to the issue of direct contact because it was for A’s identity needs. However, A’s identity needs had been consistent and yet he did not consider them to be important to professionals in a manipulative attempt to get their own way.

 

114.                     JD  has  given  a  confused  and  misleading  account  about  whether  T  knew  about  the surrogacy. In October 2013 he did not want the Children’s Guardian to contact his ex- wife, JoD, and T because they did not know that A was not AC’s child. The true situation had to be explained to T so that the Children’s Guardian could go and visit her in December 2013 and discuss matters. Ironically, of course, T said she had guessed about the surrogacy but said that she had not raised it with her father. Contrary to JD’s assertion  that  their  relationship  is  ‘awesome’,  T  told  the  Children’s  Guardian  that, although  she felt affection  for her father, she could not talk to him about important personal issues and therefore she had been talking to AC with regard to her self-harming behaviour because AC understood. This self-harming behaviour and also T’s fluctuating views about where she should live places additional strain on the family, who are, in my judgment, not equipped to cope with it.

 

115.                     The Guardian interviewed T in Whitby; she was in a low and confused mood at the time of the interview and concerned about where she should live. The Guardian says that JD did not demonstrate appropriate concerns for T’s dilemma, instead relying on a well worn tactic of suggesting that another professional, in this case a police officer, had said that T could make up her own mind about where she lived at her age and that there was no necessity to discuss this with her mother. There was clearly a necessity to discuss this issue with her mother. They, as parents with parental responsibility, should have been sorting out appropriate plans for their fragile daughter. JoD, ex wife, confirmed to the Guardian that she had not been told of the surrogacy by father. She described him as not a responsible parent and that the relationship between him and T was more about gaming.

 

116.                     JD gave a completely different account in oral evidence about T’s knowledge in respect of the surrogacy. He said that T knew all along, which seems to be a clear lie given his earlier discussion with the Children’s Guardian. He gave me a tortuous account about how T had known at the time of the insemination, she was pleased for them that this might be an option, apparently, but that she had been told by him to keep it a secret from R and D. He subsequently told me that T had not been told to keep any secrets. It is very unfortunate that I cannot rely on this father to give me a truthful account, even about this simple aspect of the case. He is so intent on twisting the evidence to make it look better.

 

117.                     JD was party to the lie told about Wendy’s identity in attending the meeting for D, when she was described as ‘Jolene, a family friend’. JD is fond of making assertions about various professionals   making  supportive   comments   or   giving   advice   but   none   of  these professionals has been produced and there is little, if any, evidence to back his assertions up. He seeks, persistently, to deflect blame onto others for his actions and those of AC. Clearly, JD has a great deal invested in this relationship; he wants it to work.

 

118.                     My impression is that he may well say and do anything to shore up that relationship with AC and that that relationship will come first, not A. She has, sadly, been along for the rollercoaster ride which is their lives; the superficiality of the approach of JD and AC to all of the issues, but particularly very important issues, is striking. They appear not to be able to assimilate the complex ramifications of their actions for the children.

 

119.                     Ms  C  may have  difficulties  n  understanding  the  more  esoteric  complications  of  the situation that they have caused but JD has no similar excuse. He should be providing AC with assistance and advice to help but he does not. JD said at page C101, paragraph 17, that:

 

‘R and D had had professional work done with them with regard to A’s identity in the family.’

 

120.                     It was not clear at all what he meant by this in the statement and, when pressed, he said this work was the school talking to them. This is not the sort of work he was giving the impression had been done with the children. This is yet another misleading statement by him. Again, this is superficial. He lacks, seemingly, any understanding about how to handle important issues such as this and this is apparent in his relationship with T. I am very sure that JD is very good to R and D but to allow them to call him ‘dad’ within a very short time of meeting them was completely inappropriate and he should know that. He is a father of course.

 

121.                     I am satisfied that he lied about the registrar’s approach to the registration of R and D. One of the reasons for the couple taking this step was probably to prevent GR finding them, as JD admitted. I consider that is similarly why A was registered at the GP with the B & B address and not the family home address; to prevent Wendy from finding A. JD admitted in evidence that he now understood that it was wrong to change the registration of R and D. However, I do not accept that the move to Whitby was to achieve more help for D. The relocation to Whitby exposed these vulnerable children to yet another move of home and school.

 

122.                     It is likely that the reasons that really influenced this couple were: a wish for a fresh start with a new baby; to evade Wendy; to cover up the surrogacy from people like T and JoD and because they wanted to live by the sea, as AC told A.W. They took a huge risk with R and D and this is similar, of course, to May 2010 when AC and JD agreed to move R and D to Lincolnshire so very early in their relationship; it was only weeks after they had met up over the internet. There was little thought then of the impact on the children.  The only reason  that  this move  did not seem to go ahead  was because  of difficulties with GR and the relationships that AC had with both men.

 

123.                     JD seems to ignore or refute the whole of the recording from Durham Social Services Department with regard to AC’s management of R and D and also, of course, the relationship with GR, despite the fact that he was not around for much of that time. He has a complete blind spot with regard to anything detrimental to their case. He eventually admitted, in cross-examination, that R and D were put at risk of emotional harm by his and AC’s actions but he said he did not see it as bad for the children at the time but he does now. He said:

 

‘I can see why professionals are concerned but we can meet A’s needs.’

 

124.                     In my judgment, I am afraid, such acceptance as he has given is only tacit acceptance, under pressure, in the witness box. I do not consider it represents any real or meaningful change on his part. Sadly, I hoped that it could. Under robust cross-examination, he eventually admitted that they had not exhibited common sense in their approach and how they had dealt with the situation but he undermines any sense of acceptance when he says ‘well I cannot change that, that is past’ but, effectively, ‘it will be alright in the future’, which seems to be his attitude.

 

125.                     Despite every opportunity to do so, he gave the court no tangible basis to find that the couple  would  handle  matters  better  in  the  future.  In  fact,  their  management  of  the situation during the course of the trial has been quite appalling. They have swung wildly between  no  contact  at  all  to  an  agreement  for  monthly  contact  and  also  seemingly between supporting Wendy as a second option carer, to seemingly swinging back to an approach of no contact and not supporting her as a carer.

 

 

 

126.                     I am well aware of the positives that there are about this family. R and D’s situation, as I have already indicated, appears to be more positive than it was when AC cared alone. The relationship between the two adults appears, on the surface at least, to be mutually satisfying. Visitors to their home describe it as warm and a calm family home. A is provided with a good level of basic care and physically she is thriving. There is no indication of any emotional damage from their care. She is loved and wanted now but she does not pose many challenges to the couple at the present; she may do in the future. We do not know how she will develop. I consider that this couple do not have the skills to meet her emotional needs in the future, even with support, very sadly for them.

 

127.                     I turn to Wendy. I do not propose to say a great deal about mother, as she has, eventually, agreed that A’s best interests lie in adoption, as a result, she says, of all of the intrigue, lies and fighting which surrounds A. I agree with her about that. Wendy was notably upset when she made this final concession, making what is obviously a very difficult decision for any parent to agree that your child should go for adoption without any direct contact. She is to be applauded for that. However, it is right to point out that Wendy has caused a great deal of the drama herself; not just during the trial but before, during and after the birth of A.   I do not want to unduly castigate her, given that she is no longer putting herself forward as a carer, but I have to indicate what I consider would be some of the problems from her if A were to remain in the care of JD and AC.

 

128.                        This surrogate mother admits to lying extensively. She has, I consider, gone into the surrogacy for monetary reasons. She has shown scant regard for her own child, C’s, emotional needs and indeed those of her partner who has been, I judge, an unwilling partner in this adventure. It is noticeable that she and N were separate at the time of the conception of A.    She has shown herself to be devious and manipulative and capable of causing a great deal of trouble. I do not know whether she has threatened AC with telling L where she lives but she has certainly been on the internet trying to find negative things to use against AC and JD.

 

129.                     She has made contact with L and K apparently, despite knowing of the difficulties that AC has in her relationship with them. She is a very emotionally needy person, in my judgment, which is demonstrated by her pestering of the Children’s Guardian about personal  issues  not  necessarily  to  do  with  the  trial.  She  attempts  to  manipulate  the situation to her own advantage and contacts the police and social services and even the court when it suits her purpose to try and get them to do things for her. In contrast, she fails to contact people when it does not suit her and fails to attend court if it does not suit her purpose.

 

130.                     I do not accept her accounts with regard to the reasons for her failure to attend court on 30th  April and 1st  May. She showed a wilful disregard for a witness summons; she took the money from it; left the jurisdiction for Scotland on that very night whilst trying to argue that she was too ill to come to court. I am quite satisfied that she has the capability to cause a great deal of trouble for A if she was in the care of AC and JD.

 

131.                     There would likely be, if that was the scenario, further allegation and counter-allegation between the parties. It would be very difficult to get to the bottom of who was telling the truth, as it has been in the course of this trial. Probably none of them would be telling the truth on past form.  The parties here have machinated without the knowledge of the court and  the  professionals  during  the  course  of  the  trial  when  they could  have  used  the services of professionals to broker a workable agreement for A.

 

132.                     Sadly,  in  my  judgment,  none  of  them  have  the  emotional  maturity  to  regulate  any sensible  compromise  for  her,  now  or  in  the  future,  in  which  she  will  be  safe  from emotional harm. If she remained in the care of any of the parties here she would be exposed to similar bickering. It is a matter of sadness to me that I have not been able to control the adults or protect A properly during the course of this trial. I do not have any confidence that this would improve, even outside of the pressure of court proceedings. This child has become an emotional football, in my assessment.

 

133.                     I have to the forefront of my mind, in assessing the evidence in this case, the importance of not judging parents on their own idiosyncrasies; the way they choose to lead their lives is completely a matter for them and not me. A choice to have a surrogate child is a free choice and that is not a matter of criticism by this court. However, when one does embark on surrogacy, it is imperative that one has the interests of the child as the paramount consideration at all times and not simply as a mantra that is trotted out to pacify an enquiring professional. As the Guardian said in the course of her evidence:

 

‘A child conceived as a result of a partial surrogacy, such as this, is a unique individual. Carers for such a child need to be able to give her emotional stability.’

 

134.                     In the Guardians experience, and that of her colleagues in the High Court team dealing with children in a similar position, the most significant aspect of managing their care is to be open, honest and understanding with the child and how they may view their conception. It is an even more complex situation than an adoption, in her view. It is really important, in her expert opinion, not to keep secrets. Honesty applies with any child, on any view, otherwise  there would  be difficulty in the child trusting the carer or parent  but that particularly applies in this situation.

 

135.                     The Guardian considered the evidence in the case to have become more and more compelling during the trial; I agree with that assessment.  The Guardian’s comments go to the issue of threshold  in this case because of its unusual nature, being an allegation  of future emotional risk. She did not consider that there was any evidence of past harm having accrued to A in the care of Mr D and Ms C; I do not consider that there has been past harm. There is evidence from the health visitor that she is meeting her developmental milestones and, as I have already said, that the basic care she is afforded is good.

 

136.                     There is no evidence that she has suffered any emotional harm, hitherto, as a result of the care which they have provided for her. She is only one year old at the present. She is a loved child and I am quite satisfied by that, nothing in this judgment is intended to cast any doubt on the love they have for this child; I am sure R and D love her too. However, the significant harm which is alleged to be likely to occur in the future is emotional harm as a result of the inability of the couple to meet her emotional needs consistently.

 

137.                     The concerns alleged relate to Ms C’s past parenting and her own vulnerabilities; how the couple have both managed the surrogacy generally and particularly in respect of their other three children; their inability to work openly and honestly with agencies; the substantial needs of R and D; and to a much lesser extent, T; their complex and, at times, hostile relationship with birth mother and their inability to understand the importance of A’s identity.

 

138.                     I find all of the allegations cited by the local authority in their document proven for the reasons set out in this judgment, save for number 4, with regard to A and adequate stimulation, which I did not consider to be well founded on the evidence. The emotional needs which will not be met, in my assessment, are even more serious than that alleged in paragraph 4. I also make the findings in relation to Wendy, which have been more or less admitted by her, in evidence.  Number 8, of course, with regard to the bitter dispute between the parties, is extremely serious.

 

Welfare Checklist Analysis

 

139.                     A is a very young and vulnerable     child. She requires, amongst many other things, stability, consistency, a true sense of her own unique identity and to have all of her needs met and to be in a position to meet her full potential, both physically and emotionally.

 

140.                     In this case, the threshold analysis and welfare analysis are very much similar given the nature of the concerns expressed. However, the fact that the threshold is crossed, in my judgment, does not mean that the court will automatically make a public law order and even if a public order is required that will not necessarily be a care order. I have had to consider in this case whether any order, or indeed the care order which the local authority seeks in this case, is required in order to meet A’s welfare interests. I would wish to be able to say that there is support and assistance which could be made available to this  family which would mean that their care could be improved to a safe and appropriate level which would enable her to remain at home.  However, sadly, I do not consider that there is such assistance. There are a number of reasons for that conclusion.

 

141.                     Firstly, I am not satisfied that the couple see the need for any intervention and assistance and I do not consider they would welcome it and they would not embrace it. They have an  established  and,  indeed  in  AC’s  case,  a  very  lengthy  track  record  of  failing  to cooperate with caring agencies. They are not open and honest; they are manipulative and will tend to play off agencies against each other and blame everyone else and not accept responsibility for their actions. Although they say they will do anything to keep her at home at this moment, this is a commitment, in my judgment, which will vanish when the proceedings end.

 

142.                     Such truth as has been established in this case has been forced out rather than volunteered by them. The fact that they have recently got on well with the school staff for R and D is a relatively recent phenomenon which is likely as a result of the couple finding the staff supportive. It is highly likely that this cooperation will not continue if there is any dispute between the two sides or once the staff at school have the full picture as opposed to the partial and limited one which they currently have.

 

143.                     Both AC and JD can present, as the Guardian said, with an aura of plausibility which could make it easy to accept what they say at face value. It is only when all the real pieces of the jigsaw are assembled, in the correct order, that the true picture can be seen rather than the one which they would have you see. As the Guardian said in her evidence:

 

‘The level  of rationalised  deception  and manipulation  is such that it requires robust professional challenge.’

 

Manipulative people like this will tend to invoke splits, which makes comprehensive monitoring  difficult;  it  is  only  with  patient  and  skilful  examination  in  this  case,  by counsel, that the true facts have been exposed.

 

144.                     The likely problems which would arise in attempting to support this family have been clearly demonstrated during the course of the evidence in which they frequently refer to individual professionals who they said had approved their actions or indeed suggested that they take such a course. These professionals were not produced to attest to these alleged views nor indeed were any documents which corroborated these evidential assertions save for R and D’s school staff. Dealing with such manipulative behaviour would prove very difficult on a day to day basis and the child would be highly likely to suffer as a result.

 

145.                     One of the examples which the Guardian gave related to the attendance of Wendy at the review for D, during the pregnancy with A, which I have already referred to. The family support worker in Lincolnshire, initially told the Guardian that this was denied by the family; it was denied that Wendy had attended the meeting. She was also seemingly categorically denying that too. It was only when she was pressed to check the minutes of the meeting that she found that someone else had attended with them. Both Ms C and Mr D now agree that they allowed a lie to be told that Wendy was the family friend named ‘Jolene’.

 

146.                     This is just a little lie in the grand scheme of all the big lies which have been told in this case but it is vitally important to be able to see and know the big picture, all of the time, or  the  required  level  of  protection  for  the  child  will  not  be  able  to  be  consistently provided. Unfortunately, I am quite satisfied that this couple will deliberately attempt to prevent agencies being able to see the big picture.

 

147.                     Secondly, the change which would be required to take place for the couple to work openly and honestly with professionals is so huge as to necessitate a change in world view. They seem to consider that whatever they decide at any given time is appropriate in their own interests, is acceptable; it is okay to lie if the end justifies the means. It is okay for AC to lie to the court if she is threatened by Wendy apparently. Du. ring the course of this hearing, both have been given a number of opportunities to reflect on their conduct and give some reassurance that they would behave differently in the future but they have failed to comprehend the depth of concern. They have persistently failed to appreciate the serious emotional implications for her other children of their decision to embark on the surrogacy and of all the various lies that they have told the children, or surrounding the children, in order to achieve their ends.

 

148.                     There was a very late admission by Ms C that R and D had probably been harmed by the surrogacy but there was no indication that she could, or would change, or that they would do things differently. They are quite a limited couple, in my judgment, with respect, in terms of their emotional intelligence. They do not have many resources available to them to deal with the complexities of the Pandora’s box which they have opened. Sadly, I do not consider that they are amenable to work on such issues, alongside caring for A.

 

149.                     Ms C is, in my judgment, a very fragile and damaged individual, as is apparent from the vast amount of evidence which is available relating to her childhood and her life with previous partners. The assertion that she is disadvantaged as a result of having a learning disability is of course an appropriate one to make but the assessment of her mild to moderate learning disability is not a definitive one, as I have referred to earlier. It was said likely to be affected by her mental health issues. The more mentally healthy she is the more able she will be to manage her life and yet she has persistently failed to take up offers of counselling which have been made available to her. She prefers to put her terrible experiences in a box and not open that box as she has said. Simplistically, she and Mr D consider that she now has a caring partner and so she will be fine.

 

150.                     I consider that she has likely reverted to old behaviour recently in attempting to lie her way out of difficult situations which is what she has evidently done in the past when she was involved with the local authority in Durham. She persistently had no answer for the myriad   of   evidential   examples   of   her   inability   to   consistently   cooperate   with professionals;  lying  to  them,  failing  to  turn  up  for  appointments  which  had  been scheduled to help her. She clearly requires some very long term counselling and mental health  support  in order  to recover  from her appalling experiences  over  the  years.  A psychological report is not needed to make that assessment; I think I am quite qualified to be able to do that.

 

151.                     However, Ms C shows no willingness to engage with services. I agree wholeheartedly with the Guardian that, whilst Mr D appears to be a devoted partner who shows her a considerable amount of support, he is masking her difficulties by pretending that she does not have any. Colluding with her is not helping her to take responsibility and face up to her considerable difficulties. The responsibility of caring for R and D is a significant one. The evidence as to R’s recent sexual flirtations with boys and men over the internet demonstrates the depth of the challenge for the couple. Both children have very considerable learning difficulties and require a great deal of support and reassurance. The transition  for both of them into adulthood  is likely to be complex.  In my judgment, meeting those needs alone will be more than enough for this couple.

 

152.                     In addition, of course, Mr D has a responsibility to his daughter, T, who is also moving towards adulthood. T does not have the difficulties which Ms C’s children do but she clearly  has  some   emotional   difficulties   with  some   rather   troubling   self-harming behaviour. As a child of divorcing parents, not yet divorced, she could have done without her father moving away to Whitby, necessitating much less contact with her and then a surrogate  baby,  perhaps  in  her  own  mind,  taking  her  place  in  his  affections.  It  is noticeable that it is said by Mr D that he did not have contact in the summer of 2013; perhaps T was upset by the surrogacy.

 

153.                     None of these issues appear to have figured highly, or at all, in Mr D’s calculations. I do not consider that this couple have the skills which would be required  to meet A’s individual needs in addition to the needs of their existing children. They demonstrated a complete lack of appreciation of those children’s emotional needs hitherto. They do not really accept that failure and I am not satisfied that there is work, which they would accept and consistently and meaningfully  cooperate with, which would enhance their ability to meet A’s needs.

 

154.                     In respect of her individual identity issues, the acrimony and the fall out from this hearing is highly likely to be very significant indeed. The parties have all behaved appallingly. Even when under the spotlight of the court and despite clear requests to behave, on their own evidence, dependent upon who can be believed of course, they have colluded, squabbled, demanded money with menaces, lied and effectively bribed their way through these court proceedings. Clearly they thought they could circumvent the court and fix the matter one way or the other.

 

155.                        I have been very concerned about A’s safety during the numerous adjournments of the case; mother has moved out of the jurisdiction and AC and JD have a history of moving without giving full information.  There has been talk about them moving to Scotland during the course of the evidence; I cannot determine whether this is true, given the lack of credibility of all of the parties, but it would a very serious concern if she remained in their care, that they would attempt to circumvent professional involvement by moving away.

 

 

 

156.                     There is a very unattractive sense of A being auctioned.             In my judgment, none of these parties could ever be trusted to deal sensitively with the issues relating to her identity. I have to consider her welfare throughout  her life in approaching the placement  order application. Sadly, I am quite satisfied that despite the fact that adoption is a draconian option, it is only independent, objective, mature and sensitive people who can truly have her best interests at heart rather than their own, who can help A with the questions which are bound to arise in the future for her.

 

157.                     I have specifically applied and considered the welfare checklist criteria that apply in this case. A is too young to understand the issues involved here. She is bound to be very upset at being removed from her current carers and the rest of the family; that is all she has ever known. I am satisfied for all of the reasons that I have given in this lengthy judgment that her physical, educational, but most particularly, emotional needs will not be appropriately met in the care of A and J in the future. I consider, on balance, that despite the extreme nature of the plan for removal, those needs will be better met in an adoptive placement.

 

158.                     I am satisfied, having heard the evidence of the social worker, that the local authority will manage this plan professionally so as to ensure that she achieves stability as soon as possible. Therefore, in my judgment, the change which is made to A’s life is necessary and proportionate and appropriate in her welfare interests, in all the circumstances of this highly unusual case. I consider that she is likely to settle within a reasonable timeframe after some understandable initial distress.

 

159.                     There  are  no  particular  characteristics  of  A’s  age,  sex,  background  and  known characteristics  which I consider relevant which I have not already referred to in this judgment. I have dealt with the issue of risk of emotional harm to her if she remains in her current situation and indeed if she is removed from there.

 

160.                     In terms of the capacity of the parents to meet her needs, then obviously her mother is not seeking to care as she has accepted the emotional risks to A of staying in her family, as cited by the local authority and the Guardian. I have already assessed the capacity of her father and his partner to meet her needs and unfortunately it is because of their lack of capacity that I have no choice but to make the orders I do in this case to meet her welfare. This case has become an overwhelming one the longer it has proceeded.

 

161.                     I have considered very carefully whether there are other powers which I could exercise which would prevent the need for removal but again, sadly, there are none which would sufficiently protect A in my judgment. I have conducted a holistic evaluation of her welfare and in my judgment nothing less than a plan for adoption will meet her needs despite the undoubted disadvantages of adoption in not residing with a family member. The balance still tips strongly, in my view, in favour of adoption.

 

162.                     I have found the threshold to be made out. I approve the care plan and make a care order for A; no other order will keep her safe and allow her to develop appropriately. I do not consider, as I have said, that there are any protective orders which would prevent the adults in her life causing her emotional damage. Sadly, this court cannot legislate for people to behave sensibly. I do not consider, in any event, if I made orders that they would abide by them and indeed others may be recruited to cause trouble.

 

163.                     No one has suggested that there should be direct contact, post-adoption, for the parties. It would not be in her best interests, in my judgment; it could not work positively to her advantage.  The parties, sadly, cannot be relied upon not to undermine  the placement given their track record. There would remain a risk of emotional harm, even in a contact situation, or even the possibility of a snatch scenario at worst. Indirect annual contact, as planned, will be sufficient, in my judgment, to meet her identity needs. The absence of contact with the natural family is obviously a negative feature of adoption but promoting such contact would be much more negative for A in all of the circumstances of this extremely unusual case.

 

164.                     I move on to consider the placement order application. I have already considered sections 1 and 52 of the Adoption and Children Act 2002, as was emphasised in Re C [2013] EWCA Civ 1257; I do not propose to rehearse all of the criteria set out therein. There will be  bound  to  be  an  emotional  impact  upon  A,  in  due  course,  when  she  comes  to understand that she ceased to be a member of her original family and became an adopted person and that will be a lifelong effect. However, her adoptive placement, hopefully, will be a happy one and the impact will be consequently be reduced. There are no other relatives with whom she has a relationship which is capable of continuing.

 

165.                     It is not possible, sadly, for her to have continuing contact with R and D, and C, for all of the reasons which are apparent in this judgment. No one else in the respective families has shown an interest in having a relationship with her or caring for her. R and D, and indeed C, are too young and vulnerable and dependent upon their carers for this to be manageable. I consider that her adoptive parents will have received training and have skills in how to manage her sense of loss in relation to her natural family, which she is bound to feel.

 

166.                     There are of course many advantages to adoption for A, as well as negatives. She will be released from the burden of the conflict between the parties. She will likely be safe and secure in a placement which will meet all of her needs consistently. She will be protected from the harm to which the parties would expose her and be able to form secure and permanent bonds with the prospective adopters. She will become a member of their family and they will take legal responsibility for her as well as an emotional and physical responsibility and they will be committed to meeting their responsibilities for her.

 

167.                        The attachments which she will form in this family will be lifelong and sustaining into adulthood.  This provides much  greater emotional  and legal security for her than she would have, in my judgment, on balance, if she remained in her natural family. Her adopters are much more likely, in my judgment, to be able to explain the complicated circumstances of her birth to her in an open, sensitive and honest way and also to work openly and honestly with professionals to meet her changing needs throughout her life.

 

 

 

168.                     Therefore, having considered all of the matters, I make a placement order and I dispense with  the consent  of father,  JD,  and  the  mother,  Wendy,  under  section  512) (b) of the Adoption and Children Act 2002 as I am satisfied that A’s welfare requires that I dispense with their consent. I expect there to be one goodbye visit for mother and also a goodbye contact for father and Ms C which can include R and D, and indeed DaCr if they wish, as the Guardian  mentioned.  I do not want R and D present at the time of the removal of A      which should be, sadly, as soon as possible. Whether three visits is the best idea I am not sure. It will be very difficult for all concerned. A DVD recording will be a very important record for A and the parties of that goodbye visit.

 

169.                     A transcript of this judgment will be prepared at the joint expense of the parties; this can be released to the independent reviewing officer for R and D and selected professionals working with the family.

 

170.                     The restriction on the removal of A from the jurisdiction, relocating out of Whitby and the ports alert will all continue to apply while A remains in the physical care of AC and JD.

 

171.                     I will  reserve  any adoption  application  to myself  so that  I can  check  that  the local authority do all they say they are going to do.

 

End of judgment

 

We hereby certify that this judgment has been approved by Her Honour Judge

Matthews QC. Compril Limited