Re M (Child)

Judgment Approved

Lady Justice Black:

This appeal is against orders made on 30 June 2016 by Ms Justice Russell in relation to a 20 month old boy, Z. Russell J ordered that Z should live with his mother (X) and her partner (P) and should spend time with his father (A) and his father’s partner (B) every two months. P acquired parental responsibility by virtue of the judge’s order. She refused to grant parental responsibility to B. The appeal is brought by A and B. What they seek to gain from it is an order that Z should live with them and that B should have parental responsibility for him.

Russell J’s judgment (neutral citation [2016] EWFC 34 ) is to be found on . For ease of cross-reference, I have used the same initials for those featuring in the case as did Russell J. www.bailii.org

The history of the matter is complex. The essential features are as follows. A and B are a homosexual couple in a civil partnership. They are the fathers of twins, who were born in 2013 as a result of a surrogacy arrangement with a woman to whom I will refer as V. A is the biological father of the twins, V carried the babies during their gestation, and a parental order was made in favour of A and B in January 2014. A and B are no longer in contact with V, their relationship with her having broken down.

A and B wished to have further children using the gametes of the woman who had donated the eggs for the conception of the twins and sought a different surrogate to help them in the process. They were introduced to X through a Facebook surrogacy site run or administered by W and others to provide a forum for the introduction of potential surrogates and commissioning parents. A very full account of the events from this point up to the birth of Z is contained in Russell J’s judgment and, as it is readily available to be read with this judgment, it is unnecessary for me to go into anything like the detail that she provided. The basic chronology of the surrogacy arrangement is that following the introduction through the Facebook site, the parties met briefly face to face in March 2014 for the signing of the agreement, and in October 2014 A and X travelled to Cyprus for the transfer of two embryos to X. Although initially the process was successful, one of the foetuses miscarried in December 2014, leaving only Z. X, encouraged by W, told A and B that she had miscarried both foetuses. Dealing with this at §74 of her judgment, the judge characterised W as “manipulative” and “dupl