England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		13th April 2018

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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.

MR JUSTICE KEEHAN:

Introduction

1. I am concerned with two children, GH and IJ, they were both born on 17 October 2010. They were born as the result of a surrogacy agreement entered into in India.
2. The children's biological parents are CD, first respondent, and EF, the second respondent.
3. The applicant, AB, is the first respondent's husband.
4. After the twins' birth they were handed over into the care of the first and second respondents in accordance with the surrogacy agreement. Neither the first nor second respondent were aware they had to apply for a parental order, accordingly, no application was ever made for a parental order.
5. As a matter of law, therefore, the children's parents are the surrogate mother, KV and her husband, HV.
6. When the parties became aware of the legal position, a series of applications were made in an attempt to rectify the position and to secure the status of the children who were, by now, living with the first respondent and her husband.
7. The surrogate mother and her husband have played no role in the children's lives since their birth, nor have they, quite understandably, made any attempt to do so.
8. These proceedings commenced when AB made an application for a parental responsibility order in respect of both children.
9. For the reasons I shall set out later in this judgment, I gave him permission to withdraw those applications at a hearing on 13 November 2017.
10. The following applications were before me at this hearing, a) the second respondent's application for a child arrangements order, dated 16 February 2017, b) the applicant's and the first respondent's joint applications to make the children wards of courts, dated 7 March 2017, c) the first respondent's application for a child arrangements order that the children live with her, and an order restricting the exercise of the second respondent's parental responsibility, dated 2 May 2017, d) the applicant's application for a child arrangements order for the children to live with him and an order restricting the second respondent's parental responsibility, dated 7 May 2017 and, e) an application made in the letter by the second respondent's solicitors, dated 24 January 2018, which I have deemed to be a formal application for permission for him to withdraw his application for a child arrangements order.
11. Included within the letter of 24 January 2018, was a request for the court to consider granting the second respondent parental responsibility for both children. I shall return to this issue later in this judgment.
12. During the course of these proceedings, the first and second respondents have made divers allegations concerning the actions and conduct of the other. At an earlier hearing I directed both sets of allegations would have to be the subject of a fact-finding hearing and I directed Scott Schedules be filed and served and responded to by both parties.
13. At the hearing on 13 November 2017, the second respondent, who lives in Country Z, indicated that he would not participate further in these proceedings and would take no part in the fact-finding hearing. His stance was confirmed by his solicitor's letter of 24 January 2018, to which I have previously referred.
14. His non-engagement was further confirmed in an email sent by his solicitors to the court, dated 29 March 2018, and one sent to the other parties, dated 10 April 2018.
15. The order of 13 November 2017 contained a recital, giving notice to the second respondent that the court would proceed with the fact-finding hearing and a final welfare hearing, whether or not he chose to attend and to participate in either elements of this hearing.
16. The second respondent was represented at the hearing on 13 November when the dates of this hearing were fixed.
17. I am satisfied that he has notice of this fixture. In the circumstances, and having regard to the provisions of the family proceeding rules, Rule 27.4, I am satisfied that I am justified in proceeding with this hearing in his absence.

Background

18. In or around 2004, the first and second respondent began a relationship. Almost from the start, but then on an increasing basis, the first respondent alleged that the second respondent was controlling of her. This behaviour escalated to verbal and then physical abuse and culminated in serious sexual abuse.
19. The second respondent made allegations of controlling behaviour against the first respondent, commencing in 2007, and then escalating to include verbal abuse and occasional physical abuse throughout their relationship.
20. The parties were married on 16 June 2007.
21. The second respondent had mental health issues and, from time to time, was prescribed medication for the same.
22. In 2007, he agreed to seek help for his anger management issues.
23. In 2008, he made the first of a number of suicide attempts.
24. The parties agreed they wanted to have children and entered into the surrogacy agreement in 2010.
25. The first respondent told me, in evidence, that, notwithstanding the abuse that she said she has sustained at the hands of the second respondent, she had hoped that having children would reunite them as a couple.
26. GH and IJ were born on 17 October 2010, and were handed over to the care of the first and second respondents.
27. In October 2013, the first and second respondents moved to live with the children in Country Z.
28. Their relationship ended in early 2014 and the first respondent returned to live with the children in this country. They were subsequently divorced.
29. In late 2014, the first respondent began a relationship with the applicant. He moved in to live with her and the children in early 2015. He has since become an important and much loved father figure to the children.
30. In late 2015, IJ was diagnosed with autism spectrum disorder.
31. The second respondent last had direct contact with the children at Christmas 2016. He has since sent them cards and presents on their birthdays and at Christmas.
32. The parties hold polar opposite views on why there has been no subsequent direct contact.
33. The applicant and the first respondent asserted that the children, especially GH, have very negative views about the second respondent and do not wish to spend time with him. The second respondent asserted that the first respondent simply obstructs him having a relationship with them.
34. These proceedings commenced on 18 January 2017 with AB's application for a parental responsibility order. On 10 March 2017, the applicant and the first respondent were married.

The Law

35. The burden of proving the allegations made rests on the party who is seeking the findings of fact. The standard of proof is the balance of probabilities Re B (Children) [2008] UKHL 35.
36. When considering the welfare issues in this case, I take into account, a) the court's paramount consideration is the welfare and best interests of the children: s. 1(1) Children Act 1989; b) the welfare checklist, s.1(3) of the 1989 Act and, c) the Article 6 and Article 8 rights of the adults involved and of the children. However, where there is a tension between the Article 8 rights of a child on the one hand, and the rights of the parent on the other, the rights of the child prevail, Yousef v Netherlands [2003] 1 FLR page 210.
37. A parental order, made pursuant to s.54 of the Human Fertilisation and Embryology Act 2008, provides for the child to be treated in law as the child of the applicant's. The order may be made if the conditions set out in s.54 of the 2008 are satisfied.
38. This section provides that:

'(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as he child of the applicants if – (a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination, (b) the gametes of at least one of the applicants will be used to bring about the creation of the embryo, and (c) the conditions in subsections (2) to (8) are satisfied.

(2) The applicants must be – (a) husband and wife, (b) civil partners of each other, or (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of six months beginning with the day on which the child is born.

(4) At the time of the application and the making of the order – (a) the child's home must be with the applicants, and b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

(5) At the time of the making of the order both the applicants must have attained the age of 18.

(6) The court must be satisfied that both – (a) the woman who carried the child, and (b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36, or any woman who is a parent by virtue of section 42 or 43, have freely, and with the full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection 6 does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.

(8) The court must be satisfied that no money or other benefit ... has been given or received by either of the applicants for or in consideration of – (a) the making of the order, (b) any agreement required by subsection (6), (c) the handing over of the child to the applicants, or (d) the making of arrangements with a view to the making of an order, unless authorised by the court'.

39. For the purposes of this judgment, the relevant statutory provisions are (i) s.54(1) which requires the application to be made by two people; (ii) s.54(2) which requires the applicants to be either husband and wife or civil partners, or persons who are living as partners in an enduring family relationship; and (iii) s.54(4)(a), which requires the child's home to be with the applicants.
40. Neither the first respondent nor the second respondent are able to satisfy those latter conditions. Whether the first respondent will be able to do so in the future depends upon the terms of remedial legislation to be considered by Parliament, in consequence of the President's declaration of incompatibility in Re Z (A Child) No 2 [2016] EWHC 1191 Fam
41. The President made the following observation in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) at paragraph 54:

'Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being whether, as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case if fundamentally about Xs identity in his relationship with the commissioning parents. Fundamental, as these matters must be to commissioning parents, they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal relationship with the surrogate and the commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences'.

42. As I observed in the case of M v F, SM [2017] EWHC 2176 (Fam):

'The transformative legal effect of a parental order cannot be overstated. The only alternatives are:

i) An adoption order, but, on the facts, it would be inappropriate for the biological mother to become in law the adoptive mother of her own child in order to gain the status of being the child's legal parent; or

ii) Making the child a ward of court, granting care and control of the child to the applicant, and making such ancillary orders as to minimise the number of occasions the applicant would have to apply to the court ... But these collection of orders do not make the applicant the legal parent of the child'.

43. The route of securing a child, or children, with their biological parent, or parents, absent a parental order by way of a child arrangements order and/or wardship and an order restricting the exercise of parental responsibility of the surrogate mother and, where appropriate, her husband, was also adopted in the cases of JP v LP Surrogacy Arrangement Wardship [2015] 1 AER 266, F v S (Foreign surrogacy Parental Responsibility) [2016] EWFC 70, and Re AB (Surrogacy: Consent) [2016] 2 LFR 217.
44. In the absence of a parental order, neither the first respondent nor the second respondent are, in law, a parent of the twins, because, (i) s33(1) of the 2008 Act provides, 'The woman who is carrying or has carried a child as a result of the placing in her of an embryo or a sperm and eggs, and no other woman, is to be treated as the mother of the child'; (ii) 35(1) provides: 'If - (a) at the time of the placing in her of an embryo or of the sperm and eggs, or of her artificial insemination, W was a party to a marriage with a man, and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to Section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or of the sperm and eggs or her artificial insemination (as the case may be)'; and (iii) s.38(1) of the 2008 Act, 'Where a person is to be treated as the father of the child by virtue of Section 35 or 36, no other person is to be treated as the father of the child'.
45. Accordingly, only the surrogate mother and her husband are to be treated as the mother and father of the children.
46. The provisions of s.4 of the Children Act 1989, dealing with the acquisition of parental responsibility, and the making of parental responsibility orders, exclusively refer to the term 'father' and not in addition or alternatively 'a biological parent'. In law, the second respondent is not the father of the children and thus he cannot acquire parental responsibility as provided for by that section, nor can the court make a parental responsibility order in his favour.
47. The provisions of s.4(a) of the Children Act 1989, dealing with the acquisition of parental responsibility by a step parent, provide:

'One, where a child's parent, parent A, who has parental responsibility for the child, is married to or a civil partner of a person who is not the child's parent, the step parent, (a) parent A, or if the other parent of the child also has parental responsibility for the child, both parents may, by agreement with the step parent, provide for the step parent to have parental responsibility for the child, or b) the court may, on the application of the step parent, order that the step parent shall have parental responsibility for the child'.

48. The applicant in this case is not married to a person who is, in law, the mother or the parent of the children. Accordingly, the court has no power to make a parental responsibility order in his favour.
49. Counsel referred me to two principal authorities dealing with the concept of a psychological parent. In Re G (Children) [2006] 2 LFR 629, at paragraphs 32 and 35, Baroness Hale said:

'So what is the significance of the fact of parenthood? It is worthwhile picking apart what we mean by "natural parent" in this context. There is a difference between natural and legal parents ... To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child, and makes the child a member of that person's family, but it does not necessarily tell us much about the importance of that person to the child's welfare'.

50. At paragraph 35, she said,

'...social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later, at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus, "A psychological parent is one who, on a continuous day-to-day basis, through interaction, companionship, interplay and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive foster or common law parent"'.

51. Secondly, in the case of Re G (Shared Residence Order: Biological Mother of Donor Egg) [2014] 2 FLR 897, at paragraph 54, where Black LJ, as she then was, said:

'It would be regrettable if too much to time were to be devoted to trying to work out whether the appellant can properly be called the children's "psychological parent", or one of their psychological parents when what matters is her involvement in fact, both past and future. However, I can see that if the evidence were to the establish clearly that the children did or did not see her as a parent that might have some influence in determining whether or not an order should be made which reflected that by giving her parental responsibility (or not)'.

52. I respectfully agree with both observations.
53. In relation to the issue of presumption in favour of a biological parent as opposed to a non-biological parent, I take account of the decision in Re E-R (A Child) [2015] EWCA Civ 405, where, at paragraph 31, King LJ said, '... there is no "broad natural parent presumption" in existence in our law'.
54. In an earlier decision of the Court of Appeal in A v B and C (Lesbian Co-Parents Role of Father [2012] 2 FLR 607, at paragraph 23, it was observed, 'in the end the only principle is the paramountcy of welfare'.

Fact-finding

55. The first respondent gave oral evidence, principally in support of the allegations she made against the second respondent. I do not intend to set out all of the details of her allegations in this judgment, given the very intimate and explicit details of some of the same.
56. In very broad terms, the findings of fact sought by the first respondent against the second respondent were as follows, a) he repeatedly had sexual relations with her against her will, which on one occasion took place in the presence of one of the twins, b) he was controlling of her, c) he was verbally and physically abusive towards her, and frequently humiliated her, d) on one occasion he roughly picked up IJ leaving marks on him, and was at times ill-tempered in his treatment of both children, and e) he threatened to remove the children from the care of the first respondent.
57. I found the first respondent to be an honest and credible witness for the following principal reasons, a) her explanation of the impact on her of the first time the respondent sexually forced himself upon her was painfully truthful. She felt diminished and less a person who lost her confidence, b) she was so ashamed of the abuse she suffered at the hands of the second respondent, she could not and has not told her family about them or any statutory authorities. Latterly, she has only told her sister who, with the agreement of the other parties attending the hearing at my permission, sat in court with her for moral and emotional support, c) her forlorn hope that by having children with the second respondent they could overcome their difficulties, that he would change and they could be reunited, d) her acceptance that in the early days of the relationship and marriage there were more good days than bad days, especially when the second respondent was compliantly taking his medication, e) her reasons for taking a photograph of the second respondent lying in a foetal position with his medication contained as spread around his head after he had taken an overdose. She took the photograph she said, and I accept, because she wanted to try and demonstrate to the second respondent how dire his circumstances were, and she wanted to try and persuade his family he had serious problems which needed to be addressed when they had previously not believed her and had rebuffed her concerns. She was not successful in either endeavour, and f) her account of the second respondent's rough and angry treatment of the children at times, proving to be the last straw and leading to their separation.
58. I note the second respondent denied all of the first respondent's allegations in his statement and his response to the Scott Schedule; he has failed to attend this hearing to give evidence in support of these denials.
59. I am satisfied, on the totality of the evidence, and on the balance of probabilities, that the first respondent has given me a truthful account both in her written and oral evidence. I am, therefore, satisfied to the requisite standard that I should make the findings of fact sought by the first respondent, as set out in broad outline earlier in this judgment.
60. For the avoidance of doubt, I make findings of fact in relation to each allegation, as set out in the first respondent's Scott Schedule, which shall be appended to the order which I will make at the conclusion of these proceedings, but which shall be headed findings of fact. For the reasons given earlier, I will not set out these findings in detail.
61. The second respondent, for reasons I do not fully understand, has disengaged from these proceedings and has chosen not to give evidence, either in person or by video-link or by telephone, a) in support of his denials of the first respondent's allegations against him or, b) in support of his allegations and findings of fact he seeks against the first respondent.
62. I remind myself of the burden of proving his allegations and findings, sought against the first respondent, rests with him.
63. In light of the fact that a) he has chosen not to give evidence in support of his allegations, b) the positive findings I have made about the first respondent's evidence and her allegations, and c) taking account of the fact that in such an unhappy and difficult relationship, the first respondent may not always have reacted or spoken in a measured fashion, I am not satisfied, on the balance of probabilities, that the second respondent's allegations are proven and I dismiss all of them. Henceforward, in any proceedings in this jurisdiction, they are to be disregarded.

Welfare

64. The first respondent has spoken warmly in her statement and in her oral evidence of the children, and of how happy and settled they are in the care of herself and the applicant. I have no reason to doubt the first respondent's evidence.
65. The applicant was not required to give oral evidence, but it is set out in his statements how happy and settled the children were and are, and of how he recognised the role of the second respondent as the children's biological father.
66. I am greatly assisted in this matter by the immensely helpful evidence of the children's guardian, Miss Odze, of the High Court CAFCASS team, who was represented by Ms Carew of CAFCASS Legal. Ms Odze very strongly recommended, assuming I made no serious adverse findings against the first respondent, that I make orders to secure the placement of the children with the first respondent and the applicant.
67. In her report, Miss Odze said:

'AB told me that although he has a close relationship with GH and IJ, who are very attached to him, he was aware that his role is as a stepfather, and that it was important for the children to have a relationship with their father for their sense of identity. AB said that he endeavours to nurture and promote a good relationship between the children and EF, for example, until it was suspended, he had been facilitating Skype contact. Another time he reproached GH when he heard her say to her father she hated him. AB pointed out that it also incumbent upon EF to strive to address the difficulties in his communication with the children. He said he had heard GH ask EF, "Why did you leave me?" AB said EF brushed it off, "He doesn't understand that she is trying to understand". In relation to contact between the children and EF, AB said he wants to build contact because that's what should happen, but sometimes EF can be impatient and doesn't understand that the children are not ready. For instance, if IJ is having a tantrum or GH is simply not ready. He would like EF to better understand IJ's needs. For example, AB said, the previous week IJ had refused the birthday present that he had asked for and they had to take him on the day to choose another gift of his choice. AB believed that the reintroduction of contact should start slowly, initially Skype FaceTime with GH only. He was of the view there was a need to separate IJ and GH because IJ does not like change. Sometimes he insisted that today was Saturday when it was Sunday because he didn't want to talk to his father and he became upset. AB told me that as a result IJ exploded at night, hitting everyone including himself. However, AB said, EF has to listen to someone to address what she, GH wants not what he, EF, wants, because it's all about the children, describing GH as confident and articulate. He told me "In the past I've advised him to ask the children what they want, not to impose on them, like going on a train, which IJ finds difficult to cope with"'.

68. A little later she wrote:

'I then asked GH what she wanted me to tell the judge, she replied about EF. She said he was bad, "That he used to hit us very hard", although she used the word 'hardly'. I asked her who had told her that her father hit her and she said, 'Me I remember'. Although she told me she could not remember where EF hit her, neither could she remember why he did, saying, "He used to get tempered very easily". GH continued, "And he chose Country Z over us which is a bad thing to do, that's all I have to tell you, that's all I really feel like telling you". At that point, GH stood up and asked if she could call her dad, referring to AB. I asked her if she would like to talk about the tools she completed and she declined. I then asked if she had any questions for me or anything to add and she said, "No". EF insisted CD had influenced the children against him, and had isolated them from his family too. He told me he wanted the children to have contact with them too. I explained to EF that it would be desirable for the children to have a meaning relationship with both him and with his family, as this forms an integral aspect of their development. However, it could not proceed in the face of the allegations before the court and from what GH had also told me'.

69. Finally, she said:

'This brings me to the other aspect of who the children perceive to be their daddy. Without doubt, AB is their psychological father and assumes the role of stepfather to a great extent. He lives with them, helps CD with their day-to-day care and education and provides CD with invaluable practical and moral support around IJ's needs. However, there seems to be some assumption that EF has no entitlement in the children's lives and, not least, from the school's point of view. It would appear he may not be receiving any school reports about the children to which he is entitled. The school refers to CD and AB as the children's parents. I do not propose to suggest at all that AB has usurped EF title, simply that there is a risk that if the relationship EF and the children remains as it is, they will be further harmed by not developing a safe relationship with him and the paternal family, and instead, by continuing to harbour or foster undesirable feelings towards him, such as being rejected by him. I therefore recommend that a joint child arrangements order be made to CD and AB for the children to live with them'.

70. Although earlier there was, understandably, some confusion about the legal status of each of the adults in these proceedings, Miss Odze was clear that the children were thriving in the care of the first respondent and the applicant.
71. The first respondent and the applicant are clear that (i) the children are thriving in their care and (ii) that the children consider the applicant to be their father, although, as noted, he is all too ready to recognise and accept that the children have their biological father, the second respondent.

Conclusions

72. I make all of the findings of fact sought by the first respondent. I dismiss all of the findings of fact sought by the second respondent.
73. I am wholly satisfied that the welfare best interests of the twins requires me, a) to make them wards of court for the time being, b) to make a child arrangements order in favour of the first respondent and the applicant, c) to make no order as to contact between the second respondent and the children, d) to give the second respondent permission to withdraw his application for a child arrangements order, e) to dismiss his deemed application for a parental responsibility order, and f) to make an order restricting the exercise of the parental responsibility of the surrogate mother and her husband.
74. The absurdity of the law not recognising the first and second respondent as the mother and the father of these children is plain.
75. The losers are predominantly the children who do not have their biological parentage recognised in law.
76. I find myself extremely frustrated, as no doubt are the first and second respondents, that I am prevented, without any obvious good, legal or policy reason from making orders which explicitly recognise them as the legal mother and the legal father of these children. Instead, I am forced, as have other judges before me, to construct a set of orders to secure the welfare of the children which fall very far short of the transformative effect of a parental order.
77. Finally, I wish to express my grateful thanks to counsel for their detailed and extremely helpful skeleton arguments and for the admirable economy of their closing submissions.