What alternative orders can be made in a surrogacy situation when things go wrong?
In the post about whether a surrogacy agreement is enforceable through the courts (short answer is they are not) the Court of Appeal in Re C left open the next stage of the process. The decision that finally settled the arrangements in that case came before Mrs Justice Theis sitting in the Family Court in 2024 and is reported as Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 https://www.bailii.org/ew/cases/EWFC/HCJ/2024/20.html Because this was an application by the father's partner to adopt the child, the Local Authority became involved to comply with Adoption Regulations.
Introduction
This case concerns two applications regarding a three-year-old child, Z, born through traditional surrogacy. X and Y (a same-sex male couple) are the applicants seeking to vary/discharge a child arrangements order made in August 2021 and for a step-parent adoption in favour of X. Z's biological parents are G (the surrogate mother) and Y. These applications are opposed by G but supported by the local authority and Z's Children's Guardian.
Background
Z has lived with X and Y since birth in September 2020. After birth, G felt unable to consent to a parental order due to differences regarding her level of contact with Z. In August 2021, a parental order was made alongside a consent child arrangements order providing for G to have contact every six weeks. Following difficulties with contact, it was suspended by X and Y in January 2022, and they applied to vary/discharge the order. G successfully appealed the parental order, which was set aside in January 2023. X applied for step-parent adoption in June 2023. (The Appeal is reviewed in this blog under the heading are surrogacy arrangements enforceable)
Expert Evidence
Dr Willemsen, a clinical psychologist, was the jointly instructed expert and he recommended contact according to the August 2021 order, noting this case involved difficulties in managing anticipated loss for both parties. He did not consider that an adoption order was necessary as there was no dispute that Z would continue to live with X and Y and parental responsibility could be conferred on X in other ways, and although an adoption order would benefit X, it did not make any difference to Z. Ms Harvey (social worker) and Ms Pulbere (Children's Guardian) both supported the adoption application and recommended less frequent contact (twice yearly) with X and Y present.
Court's Decision
Mrs Justice Theis refused the step-parent adoption application, concluding that Z's welfare did not require G's consent to be dispensed with. Instead, she ordered a child arrangements order confirming Z will live with X and Y, which gives X parental responsibility. She ordered direct contact four times yearly between Z and G without X and Y present, plus two periods of indirect contact annually. G's parental responsibility was restricted to being notified only about life-saving medical treatment, permanent relocation, or absences over six weeks that would interfere with contact.
Reasoning
The court preferred Dr Willemsen's evidence over that of Ms Harvey and Ms Pulbere. It found that Z's identity needs would be better secured with a child arrangements order, which would reflect his reality while maintaining his relationship with G. The judge expressed concern that X and Y had failed to comply with the previous contact order and might repeat this behaviour if granted an adoption order. She noted that while the decision would cause X and Y distress, X had confirmed his commitment to Z would remain unchanged regardless of the outcome.
Further Orders
The court also made an order under s91(14) Children Act 1989 preventing further applications for three years without the Court's permission, to allow Z to settle and for contact to become established. This order is not an absolute bar to making applications but creates a filter by the Court deciding if any application should proceed before any hearing is listed during the period of that order.