Cambridge Family Law Practice

In a significant case, the High Court issued a parental order to an estranged couple, even after the intended mother withdrew from the proceedings.

The opposite sex couple had commissioned a child born through surrogacy in the United States. They had first met in 2010, and their subsequent marriage was the second for both of them.

The couple wanted children but had difficulty conceiving. Subsequent IVF treatment proved unsuccessful, prompting them to commission the surrogate, using the father’s gametes and donor eggs. Following the birth of a daughter, she was placed in the care of the commissioning parents and brought back to the UK. She is now ten years old.

In both the US and UK, birth parents remain the legal parents of surrogate children until their status of parent is transferred by the courts. In the UK, this is done via a ‘parental order’, while in the US an ‘affirmation of parental status’ is issued. The couple obtained an affirmation but did not pursue a parental order in the UK courts, as is normally required.

Sitting in the High Court, Mrs Justice Theis explained:

“The father states he did not fully understand the implications of not making the application and felt the mother’s status as a judge would resolve any difficulties.”

In 2017, the couple entered another surrogacy arrangement with the same US family, referred to as ‘Mr and Mrs Z’. A second daughter, ‘Y’, underwent a difficult birth, leaving her with health issues and this time the commissioning parents did not take on her care. Instead, she stayed with Mr and Mrs Z. Mr Justice Theis explained:

“Mr and Mrs Z adopted Y and she remains in their care. Mrs Z [said] that within days of Y’s birth the mother had informed her that Y would be placed for adoption and that in response she and her husband put themselves forward as adopters for Y.”

The commissioning couple disputed the circumstances behind the adoption:

“The father said this was at a time when the mother’s behaviour was becoming increasingly erratic, abusive and dishonest as she was being investigated for fraud.”

Not long afterwards the intended mother was prosecuted for benefit fraud. She pled guilty and received a two -year suspended sentence. Around the same time, the father also discovered that she had a lied to him about being a judge, and expressed shock at the discovery.

In addition, he reported that the intended mother began to be violent towards him in summer 2019, and that these incidents continued for a number of years. Mrs Justice Theis noted:

“The final incident, prior to the parents’ separation, took place in January 2023 with a sustained attack by the mother on the father in the presence of X when the father eventually called the police. The mother was arrested and the parents have not lived together since. The mother went to stay in the parents’ holiday home in another part of the country and has remained living there since. X has remained living with the father.”

The girl maintains regular indirect contact with her mother.

In due course, meanwhile, the father applied for a non-molestation order and this was granted, meaning the mother was forbidden from approaching or contacting him, but, he alleged, she had done so anyway. Meanwhile, the mother approached the police claiming the father had been abusive and coercive towards her. She also successfully applied to change the details of her profession listed on her marriage certificate, insisting she had only claimed to be a judge under his influence. The father did not become aware of these events until months later. He was eventually interviewed by the police.

In summer 2023 the estranged couple finally made a joint, belated application for a parental order in relation to X. However, the mother became less and less involved with these proceedings as time passed.

Mrs Justice Theis noted that the legislation governing parental orders – the Human Fertilisation and Embryology Act 2008 – did not prevent the family courts from issuing a parental order when one party had disengaged from the proceedings, requiring only that the initial application be “made by two people”. In this case there was nothing to suggest that the mother intended to withdraw her application – she had simply become less active in its pursuit. Nor had she made any attempt to argue that X should cease living with her father.

The importance of providing long-term security for X meant that the order should still be issued in spite of the normal six-month deadline having elapsed, the Judge declared:

“…it is clear, on the facts of this case, the court should permit the application to proceed even though it was made after the expiry of the six-month time limit. I accept the father’s evidence regarding his reliance at the relevant time on what he understood to be the legal expertise of the mother.”

She continued:

“Thereafter the consequences of the criminal charges faced by the mother and changed dynamics of their relationship between the parents provided further context of why the application was not made earlier. Once the parents each secured independent legal advice … they jointly made the application to secure X’s legal relationship with them both.”

Mrs Justice Theis therefore issued the parental order – the first time on record that one has been issued in such circumstances. At the same, contact with the mother was suspended for three months, as X was experiencing anxiety and at risk of further “emotional harm”. X’s legal guardian reported that the mother’s messages to and video calls with the girl were:

“…often emotionally manipulative in tone and content, providing a distorted narrative of the parental relationship.”

The father was given primary parental responsibility for his daughter’s welfare, and had only to inform the mother of any change of address or significant medical issues.

The judgement is available here.

Jeremy Ford, one of the partners here at Cambridge Family Law Practice, notes: “The facts of this case are somewhat mind-boggling, with their clearly being elements of deception and domestic abuse at its heart. However, it is right that the child’s legal status reflects the reality, which is that the parents were intended to her parents, and she – presumably – considers them as such.”