Z, Re (Surrogacy: Step-parent Adoption)

Factual and Procedural Background

The court considered two applications made by Applicants X and Y concerning a child, Z, aged 3. The first application sought to vary or discharge a child arrangements order made on 11 August 2021 ("August 2021 order"), and the second was for a step-parent adoption by Applicant X. Both applications were opposed by Z's birth mother, Respondent G, and supported by the local authority and Z's Children's Guardian.

Z was born following a traditional surrogacy arrangement entered into in 2019 between X and Y, a same-sex male couple, and G. Z's biological parents are G and Y. Z has lived with X and Y since birth in September 2020. G initially did not consent to a parental order due to disagreements over contact arrangements. A parental order and a consent child arrangements order were made in August 2021, granting G contact every six weeks.

Contact difficulties led X and Y to suspend the August 2021 order in January 2022 and to apply for its variation or discharge. G was permitted to appeal the parental order, and the Court of Appeal set it aside in January 2023. The variation/discharge application was stayed pending appeal but later restored. X's application for step-parent adoption was filed in June 2023.

The hearing was scheduled from 23 November to 1 December 2023, including oral evidence from the parties, the local authority social worker, the Children's Guardian, and the jointly instructed clinical psychologist expert, Dr Willemsen. The court noted procedural delays due to late submission of research papers to the expert.

The background includes the initial surrogacy agreement, the parties' interactions during pregnancy and after birth, the parental order application process, the mediation efforts, and the eventual breakdown in contact arrangements leading to litigation. The August 2021 order set out specific contact provisions for G with Z, which were not fully complied with, leading to further disputes and applications.

Legal Issues Presented

1. Whether the August 2021 child arrangements order should be varied or discharged in the best interests of the child, Z, pursuant to the Children Act 1989.
2. Whether a step-parent adoption order should be granted in favour of Applicant X, dispensing with the birth mother's (G's) consent under the Adoption and Children Act 2002, considering the welfare checklist and proportionality.
3. What contact arrangements should be ordered between Z and G post-adoption or if the adoption order is refused.
4. Whether an order under section 91(14) of the Children Act 1989 should be made to restrict further applications without leave of the court.

Arguments of the Parties

Applicants' Arguments

• X and Y assert they have created a stable, loving family for Z and seek legal recognition of X as a parent through adoption to reflect the child's reality and provide lifelong security.
• They contend that G's role was intended to be that of surrogate and egg donor, with limited contact evolving naturally over time, rejecting a maternal or parental role for G.
• They describe G's conduct as undermining their parental status and family unit, including public postings they consider harmful and inconsistent.
• X and Y argue the August 2021 contact order was not complied with by them due to concerns about G's intentions and the impact on Z's welfare, leading to the suspension of contact and the need to vary or discharge the order.
• They accept the need for some contact but propose limited direct contact with their presence and indirect contact, opposing unsupervised or frequent contact.
• They submit the adoption order is necessary for legal certainty, stability, and to avoid future litigation, and that dispensing with G's consent is proportionate given her refusal to consent.
• X and Y express willingness to engage in therapeutic support to improve relationships.

Respondent's Arguments

• G opposes the step-parent adoption order and the variation/discharge of the August 2021 order, seeking restoration of the original contact arrangements.
• She asserts she never sought a parental role but wishes to maintain a meaningful relationship with Z as his birth mother, emphasizing the importance of identity and biological connection.
• G denies allegations of homophobia and explains her online comments as expressions of emotional distress during difficult periods.
• She contends that X and Y did not intend to comply with the August 2021 order and unilaterally altered contact arrangements to her detriment.
• G fears that adoption would sever her legal relationship with Z and reduce her ability to maintain contact, which she considers harmful to Z's welfare and identity.
• She supports therapeutic work and a contact order but has low confidence in X and Y's compliance if adoption is granted.

Local Authority's Arguments

• The local authority supports the adoption application and considers it provides lifelong security and stability for Z.
• They recommend contact between Z and G twice a year direct (with X and Y present) and indirect contact twice a year.
• They support a section 91(14) order to prevent further applications and litigation detrimental to Z's welfare.

Children's Guardian's Arguments

• The Children's Guardian supports the adoption order and the proposed contact arrangements.
• She emphasizes the importance of maintaining Z's identity, including a meaningful relationship with G.
• The Guardian recommends a discharge of the August 2021 order and a contact order for two direct and two indirect contacts per year, with X and Y present during direct contact initially.
• She notes the importance of consistent terminology for G in Z's life to support identity formation.
• The Guardian does not support a prohibited steps order except for potential relocation or extended travel.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the complex factual matrix involving a surrogacy arrangement that transitioned from gestational to traditional surrogacy, resulting in a biological link between G and Z. The court noted the limited preparation and support for the parties entering into the surrogacy, which contributed to difficulties as feelings evolved post-birth.

The court acknowledged the competing feelings of loss experienced by G (loss of the child) and X and Y (loss of anticipated exclusive parenthood), which were not openly discussed among the adults. The court found that the parties had not adequately addressed the emotional implications of the surrogacy, resulting in tensions and breakdowns in communication.

The August 2021 parental and child arrangements orders were made with consent but were followed by non-compliance and unilateral changes by X and Y, which the court found undermined G's contact rights and contributed to conflict. The court rejected the Applicants' claim that they were pressured into agreeing the August 2021 order, finding instead that it reflected prior agreements and legal advice.

The court gave detailed consideration to the expert evidence. It preferred the clinical psychologist's evidence (Dr Willemsen) over that of the social worker and Children's Guardian, finding Dr Willemsen's analysis more nuanced and reflective of the complexities, particularly regarding the emotional and identity needs of Z and the parties' capacity for reflection and acceptance. The court found that X and Y had not yet fully accepted or understood the importance of G's role in Z's life beyond the surrogate role.

On contact, the court accepted that direct contact between Z and G is important for Z's identity and welfare, but that contact should initially be without X and Y present to avoid tension and allow a meaningful relationship to develop. The court determined that four direct contacts per year, including birthday and Christmas, and two indirect contacts per year, with prior notice and agreed dates, best balanced Z's welfare needs and family stability.

Regarding the adoption application, the court found that although the adoption would provide legal certainty and permanence for X and Y, it was not necessary for Z's welfare. Dispensing with G's consent was not justified because G's continuing role as birth mother is important for Z's identity and welfare. The court was concerned that adoption could risk undermining the relationship between Z and G and might exacerbate conflict, particularly given X and Y's current attitudes and history of non-compliance with contact orders.

The court considered alternative orders, including a child arrangements order granting X parental responsibility and restricting G's parental responsibility to limited notifications. This would secure Z's living arrangements and identity needs without severing the legal link with G.

The court also found it necessary to make a s91(14) Children Act 1989 order preventing further applications without leave for three years to protect Z's welfare from ongoing litigation and allow relationship repair.

The court emphasized the need for the parties to engage in therapeutic work to improve their relationships and ensure Z's welfare is prioritized going forward.

Holding and Implications

The court REFUSED the application for a step-parent adoption order dispensing with the birth mother's consent, concluding that Z's welfare does not require such an order in the circumstances.

The court granted the application to vary the child arrangements order by discharging the August 2021 order and making new arrangements for contact and parental responsibility that better reflect Z's welfare and identity needs.

A child arrangements order will confirm that Z lives with X and Y, granting X parental responsibility and severely restricting G's parental responsibility to notifications of major events affecting Z's welfare or relocation.

The court ordered direct contact between Z and G on four occasions per year (including birthday and Christmas) without X and Y present initially, and two indirect contacts per year, with agreed arrangements and prior notice.

A section 91(14) Children Act 1989 order was made for three years to prevent further applications without leave, protecting Z from protracted litigation.

The decision directly affects the parties by maintaining G's legal status as birth mother with contact rights while securing X's legal parental status without adoption. No new legal precedent was established; the ruling applies established principles to the unique facts of this surrogacy and family situation.

The court encourages the parties to pursue therapeutic support to rebuild relationships and focus on Z's welfare.