Surrogacy: What happens if you change your mind?

Last month, Wisconsin’s Supreme Court was called upon to decide whether surrogacy agreements were enforceable contracts there.

The case concerned a commissioning mother, Monica, who had entered into a surrogacy agreement with David and Marcia.  Monica agreed to carry a child for them, after being artificially inseminated with David’s sperm. 

Each party took legal advice and a written contract was prepared.  It provided that Monica’s parental rights would end on the child’s birth. 

Monica subsequently changed her mind, and litigation followed.  David sought an order for specific performance of the agreement – in short, requiring Monica to do what she had agreed to do.

David’s application initially failed.  The Judge decided the agreement was null and void.  This was because it did not comply with local requirements for the voluntary termination of Monica’s parental rights.

At a trial in 2011 to determine the child's best interests – he was by then three years old - a Judge ordered that Monica should have custody, but that David should have access.   That access was to be for six hours every other weekend for two years, and then for the whole of every other weekend after that.

David and Marcia appealed.

Monica tried to argue that the whole contract should be void because it went against public policy.  By majority decision, the Supreme Court disagreed. 

It found that the surrogacy contract must be considered in the judge's determination of custody and access, unless its terms were contrary to the child's best interests.  To that extent, the surrogacy agreement was an enforceable contract, save for the provision terminating Monica’s parental rights. 

Of Monica’s arguments to seek to avoid the contract, the court’s majority decision observed: 

"There are no facts in the record to indicate, nor does Monica argue, that the contract should be void or voidable due to misrepresentation, mistake, duress, undue influence or incapacity."

The majority Judgment (given by Justice Annette Ziegler) continued:

"Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life".

Chief Justice Shirley Abrahamson agreed the first instance Judge had erred by ignoring the contract.  However, she disagreed with the majority’s conclusion that such contracts should be enforced "unless contrary to the best interests the child."  She wrote:

"The majority opinion has no hesitancy in declaring that public policy supports the enforcement of such contracts. Yet the validity of surrogacy contracts, in whole or in part, is at this very time being debated across the globe."

The decision was especially significant, because Wisconsin has no statutes or case law that directly addresses enforceability of surrogacy arrangements.  The court called on the State government to take the lead in enacting legislation to regulate surrogacy and surrogacy agreements.

Back on this side of the globe, surrogacy agreements are not enforceable as contracts in the UK.  Commissioning parents who enter into a surrogacy arrangement may seek a Parental Order.  The effect of such an order is to transfer parent rights and entitlements from the surrogate mother (and any other legal parent, which may include her partner in some circumstances) to the commissioning parents.

But one of the prerequisites for a Parental Order is that the surrogate mother (and any other legal parent) gives consent freely and with full understanding of the process and its implication.  The consent must be unconditional.  The surrogate mother is entitled to change her mind, and consent given before the child is at least six weeks old is not valid. 

What happens here if the surrogate genuinely changes her mind?  This was an issue considered by our High Court in London about two years ago.  Mr Justice Baker had to settle arrangements for a baby girl.  She had been conceived following a surrogacy arrangement.  The surrogate mother changed her mind when the child was seven days old, and wished to keep the child.

The Judge decided that the baby should continue to live with the surrogate mother and have contact – which she had already been having – with the commissioning father.  That, the Judge determined, was the arrangement that was in her best interests, and the only issue the court had to resolve.  Putting the enquiry in another way, in which home was she more likely to mature into a happy and balanced adult and to achieve her fullest potential as a human? 

Ultimately, the Judge reached his conclusion based on his assessment of the capacities of the various adults to meet the child’s needs.  He decided that to remove the child from the surrogate mother would cause emotional harm.  The Judge believed the commissioning father lacked insight into the importance of the child’s relationship with her. 

Of the change of heart by the surrogate mother, Mr Justice Baker observed that in some cases a promise to give up the baby might indicate a lack of commitment to the child, calling into question the mother’s capacity to care.  However, in the circumstances of this case, the court should not attach undue weight to the surrogate mother’s original promise to give up the baby.

Statistically, changes of heart by the surrogate or commissioning parents are rare.  Surrogacy UK estimates that only about 2% of surrogacy arrangements break down.  

 

What the Wisconsin case and the decision of Mr Justice Baker here in England each demonstrate is the need, in that small cohort of cases where the arrangement breaks down, for urgent legal advice from an expert in surrogacy.  

Costs orders against local authorities in private law proceedings

A High Court Judge has taken the unusual step of ordering a local authority to pay a parent’s legal costs. 

The Judge, Mr Justice Cobb was considering a case concerning a six-year-old boy.  There was a dispute between his parents about questions of residence and contact – where he should live and the time she should spend with the parent with whom he did not live.

The father raised concerns about aspects of the mother’s behaviour:  in short that she had fabricated serious medical conditions in both herself and the child. 

The exaggeration or creation of symptoms of illness to gain investigation, treatment, attention, sympathy, and comfort is a recognised and serious psychiatric disorder.  It used to be called Münchausen syndrome.  The related condition was termed Münchausen syndrome by proxy, a particularly insidious form of abuse where the abuser seeks attention or sympathy by fabricating or inducing illness in a child.  The label “Münchausen” has fallen out of favour and the expressions “factitious disorder” or “fabricated illness” (by proxy, if it involves the abuse of a third-party) are preferred. 

 

Because of the serious nature of the father’s concerns, the local authority was directed by the court to prepare a report under section 37 of the Children Act 1989.  That section enables a court to direct a local authority to prepare a report if it considers that it may be appropriate for the State to intervene – either via a care or supervision order – in the child’s family life and upbringing.

And so a section 37 report was prepared.  Unfortunately, it failed to address in any meaningful way the serious issues raised in the case.  There was limited analysis of the fabricated illness and how that might impact on the care the mother provided to the child.  

 

The social worker who wrote the section 37 report, and her manager, subsequently gave evidence to the court.  During that evidence, it emerged that:

Ø                 the social worker had no training in relation to cases of fabricated illness;

Ø               she was not aware of guidance on the issue produced by the Department for     Children, Schools and Families in 2008 (“the DCSF Guidance”);

Ø             she was not aware of a programme for training social workers in dealing with fabricated illness cases recommended in the DCSF Guidance;

Ø              she had not spoken to the child’s GP or made enquiries of his school regarding his health;

Ø               she had not spoken to extended family members;

Ø               she was untroubled that the child’s attendance record at school was 69.4%, indicating she considered this to be “ok”.

When the deficiencies in the social worker’s and the local authority’s approaches emerged in evidence, the local authority asked for an opportunity to reflect overnight.  Having done so, the local authority Team Leader asked for an opportunity to “re-assess the situation”.  The local authority indicated it wished to hold a legal planning meeting – which it could have done in the many months leading up to the trial – urgently to consider the case.

It was agreed that the hearing could not proceed in those circumstances, and was aborted.

A further section 37 report was prepared and filed, and the issues were decided at a later date.

The question Mr Justice Cobb had to decide was who ought to pay the costs of the first trial, which had to be aborted on account of the local authority’s deficient approach. 

His Lordship looked at the relevant legislation about costs, the corresponding court rules and previous decisions interpreting both.  As a general rule, costs are in the discretion of the court.  The court may make at any time such order as to costs as it thinks just.

The Judge identified the appropriate test as being whether, in all of the circumstances, it was just to make a non-party pay the costs of proceedings.  He identified the following extract from an earlier case about applying that test to be of relevance: 

“In such cases it will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on are such as to make it just to order some non-party to pay the costs.  Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic"

Globe Equities Ltd –v- Globe Legal Services Ltd [1999] BLR 232 at § 21, per Morritt LJ

The Judge decided it was appropriate to make an order against the local authority to pay the father’s wasted costs of the abortive trial.  His Lordship was sympathetic to cases where minor failures in practice occurred, because of under-resourcing of local authorities.  Such cases would not attract financial penalty.  However, the failures here were not minor; the Judge described them as extensive.  They had had a profound effect on the conduct of the proceedings.  He said (at paragraph 52):   

“The Local Authority has in my judgment failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father's allegations when it prepared its section 37”

The Judge further was sympathetic to the lack of training on the part of the individual social worker, which could only be acquired over time and professional practice.  The failure justifying the costs order was a systemic one on the part of the local authority.  There was simply no training of social workers in the assessment and management of fabricated illness cases. 

The local authority’s hard-pressed financial resources did not exculpate it from its statutory responsibility.  This was not least given that the father was himself a man of limited means who could not afford the wasted costs of the abortive trial. 

His Lordship was fortified in his conclusion by reference to earlier decisions where costs orders were made against non-party expert witnesses who had caused significant expense to be incurred through disregard of their professional obligations.

The local authority was ordered to pay just over £10,000, a sum the Judge described as “relatively modest by the standards of some High Court family litigation”.

As a coda to the main Judgment, it is of interest that the Judge found the majority of the father’s allegations against the mother, regarding fabricated illness and fabricated illness by proxy, proved. 

And so a cautionary lesson for experts – which the President has been at pains to remind us in recent diktats includes social workers - in family proceedings.  Ignore your professional responsibilities at your peril.  There is of course a wider policy issue here:  doubtless many of the shortcomings of the local authority are a direct result of scandalous and continuing underfunding.  It is very easy to cut the Family Justice budget to the bone and pretend it will all be okay and that stakeholders will just muddle along and make do.  This decision demonstrates the fallacy of that line of thinking.  Making local authorities meet the financial consequences of central government funding cuts might just make the latter sit up and take notice.  Decisions like this speak the only language – a rudimentary monetary one – they seem to hear.  

In with the in-crowd: the Hague Abduction Convention gang grows...

My first blog, way back in January (so long ago…) was on Japan’s ratification of the 1980 Hague Abduction Convention.  After some considerable delay and a change of government, it appeared that that ratification was back on track.  Japan’s Foreign Minister announced his government’s commitment to taking steps, and promptly, to sign the Hague Abduction Convention.

It wasn’t all empty rhetoric either.  We know that, because Japan’s Lower House unanimously approved ratification of the Convention on Tuesday.  The Lower House will now consider draft legislation about how the Convention will work locally.

The ratification and draft legislation will then go before the Diet, Japan’s parliament, in late May.  Under Japan’s Constitution, a treaty approved by the Lower House will receive Diet approval if the Upper House does not vote on it within thirty days.

Japan is the only nation among the Group of Eight yet to join the Convention club, which has 89 signatories as at today’s date.

It might have more soon …

Hot on the heels of the Japanese development comes a commitment from Pakistan’s parliament to look at implementing the Convention there.  Earlier this week, Pakistan’s interim law minister, Ahmer Bilal Soofi, said this:

“My ministry will examine it.  We genuinely believe that this convention should be adopted.” 

This statement of intent was made in a speech given at a consultation organised by the charity Struggle for Change, in collaboration with the British High Commission.  In attendance were officials from the diplomatic community, government ministries, police department, as well as legal experts and human rights activists.

Attendees were told that there were 40 child abduction cases between the UK and Pakistan in 2012.  Significant child abduction traffic was also reported involving the USA, Norway, Denmark and the Netherlands.  Unsurprisingly, the most traffic was between countries with significant expatriate Pakistani communities.

Pakistan’s Human Rights Secretary, Shaigan Sharif Malik, likewise committed his ministry to doing the necessaries, and quickly: 

“I give my word that we will be ratifying this Convention soon.  This is an issue regarding children’s rights, something that we are serious about.”

Three working groups focusing on mediation, challenges and implementation, respectively, have now been formed to draft recommendations that will be forwarded to the relevant authorities for effective implementation of the Convention in Pakistan, once ratified.

Although Pakistan is not currently a member of the Hague Abduction Convention club, it has a bilateral arrangement with the UK in the form of a Protocol.  The Protocol was concluded in January 2003, and has been revisited twice since, in September 2003 and February 2006.

The Protocol is primarily concerned with child abduction cases, but cases that involve the cross‐border recognition of orders as to custody and access also fall within the “spirit”, if not the letter, of the agreement.

In terms of practical operation, the Protocol looks to appoint liaison judges in the two jurisdictions; in England and Wales, the liaison judge is Lord Justice Thorpe.  The liaison judges are intended to work together to advance the objects of the Protocol.

But the Protocol does not (and cannot) change the underlying legal mechanisms for resolving child abduction cases between the two countries.  It is at best mood music, playing in the background and seeking to inform and influence, rather than dictate, the approach to be taken in cross-border custody disputes between the two countries.

Not so the Convention:  the Convention introduces a presumption that, save in limited circumstances, the unlawful taking or retention of a child across international boundaries is harmful to his or her welfare.  The Convention introduces a default legal response in such situations, of returning children to the country from where they were taken.

Here’s hoping that Pakistan follow the Japanese lead, and make good on the commitment to ratify the Convention in the very near future.  The more members of the club there are, the better the global response to the peccancy that is parental child abduction.

Going underground – When parents defy the court process

A few weeks ago, I wrote about a US international custody dispute.  That case involved a Virginian Amish-Mennonite pastor, who was sent to gaol for his part in abetting a parental child abduction.

The phenomenon is not unique to the US.  According to an article in Australia’s Courier-Mail on Tuesday, Church and domestic violence support groups there are actively helping parents breach court orders and go on the run with their children.  Those groups, the article reported, helped
recalcitrant parents operate under the radar and evade detection by the authorities.

One parent claimed a domestic violence group and others had helped a former spouse hide two children from the courts and police.  When six officers finally found the children - who had been missing for a month - they had been given new SIM cards for their phones and access to a number of different computers.  The parent who had illegally taken the children had limited funds at the time, so the implication was others were underwriting her financially.

The problems identified resonate with those we face here, too.  I’ve had a number of cases over the years which have required steps to be taken to find children taken by a parent in defiance of court orders.  For the most part, those steps have been successful.  Our courts are extremely sympathetic to requests for the disclosure of information to help locate missing children.  Any lawyer experienced in managing child abduction cases will know the classes of information that best pinpoint where and how parents seeking to evade detection are operating.

But I have had a small cohort of cases where even the most intensive efforts to find a missing child have not been successful.  Each of those has had the fingerprints on it of a network of supporters conspiring to help the abducting parent defy the court process.  Often family members are implicated, and in some instances punished, for their support – however well-intentioned – in helping a parent avoid detection.  This third party support is virtually inevitable:  it is neither easy nor cheap to run one’s life without leaving an information footprint of some description that can be used in the detection process.  These have been some of the most difficult and sad cases of my career.

 

Family law experts in Australia claim the problem there is compounded by the justice system being under-resourced.  The Courier-Mail article features comment from several sources to the effect that the issue is partly on account of courts not properly managing, and taking into account in their decisions, factors such as domestic violence or abuse.  Thus, it is claimed, parents have to take the law into their own hands. 

If those working in the Australian Family Justice System need an illustration of how underfunding fails children and families, they should have a word with me.  With the decimation of our Family Justice budget (with further swingeing cuts promised), and the all-but-in-name extinction of Legal Aid, most lawyers here agree that the service we are able to offer some of the most vulnerable is no longer fit for purpose. 

Rather pessimistically, I suspect we’ll see more and more cases of the type described above.  With parents increasingly denied effective access the court system, of course there will be the temptation to take the law into their own hands and go underground.  Some will do so with good reason, others will do so out of malice or spite.  If in the latter categories, under-resourcing represents a total failure of the left-behind parent. 

 

On either side of the equation, the individuals who will be most let-down will be the children affected. 

But we’re all in this together…

I’d like to hear what others think.  Can a parent ever be justified in going on the run with a child in defiance of court orders?  If yes, in what circumstances?  Likewise, is it ever justified for family members, churches, support groups and others to help parents in these situations evade detection and due process?  I’d also love to hear from parents who, having been through the court process and obtained an order, have nevertheless been denied a relationship with their child because the other parent has gone underground. 

French authorities failed British mother in Cross-Channel custody dispute

The European Court of Human Rights found today that the French authorities had failed to have sufficient respect for the family life of a British mother and her two children.

The case, Raw and Others –v- France (Application No. 10131/11), concerned steps taken (or not taken) by agencies of the French State to give effect to decisions about the return of the children to their mother’s care. 

Background

The mother, Samantha, was a British national.  She had two children – Austin and Dylan – by her former partner:  they were born in 1995 and 1997, respectively.

The parents separated in 1999.  Samantha then left France (where the family were living) in 2001 and travelled to the UK. 



Samantha Raw



A French Judge dealing with the family’s circumstances decided that parental authority should be exercised jointly by both Samantha and the father.  Further, the French court decided that Dylan and Austin should live with Samantha in England.  A regime of contact (access) by the children to the father in France was defined.



It was under that contact regime that the children went to France in December 2008 to stay with the father.  Whilst there, the father presented the children at a local police station.  He complained the children were suffering in Samantha’s care.  He said they feared returning to England, and had recounted to him instances of ill-treatment.  According to the father, Dylan had threatened to harm himself or attack Samantha if he were forced to go home.

      

Court Proceedings

The father started proceedings first in time.  Dealing with his application, a French Judge made an interim order, in January 2009, in favour of the father providing for Dylan and Austin to live with him.  He heard from the children and said the unhappiness they expressed justified the decision.  The French Judge also commissioned a series of enquiries intended, amongst other things, to establish the parenting abilities of each parent.  A report was prepared by a psychologist and a welfare assistant, which recommended that Dylan and Austin be looked after by the father.

London's High Court of Justice

This side of the Channel, Samantha attended before the High Court in London in January 2009.  The English court determined that the father had wrongfully retained Dylan and Austin in France.  It directed the father to return them to Samantha’s care. 

Armed with that decision, Samantha made an outgoing request under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Abduction Convention”).  That Convention, which is supplemented within the EU by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels II revised”), confirms that the default response to an intercountry child abduction is the return of the child/ren to the country where they ordinarily live.  Only in unusual cases should that default response be disengaged. 

Back in France, in early February 2009 a Judge considered Samantha’s application under the Hague Abduction Convention.  That Judge decided that the default response was the right one, and that Dylan and Austin should go home to their mother. 

Austin and Dylan

But nothing then happened, and in March 2009 Samantha complained about the failure on the part of the French authorities to return the children.

The father sought to challenge the decision that the children must return home, but his appeal was refused in April 2009.  The French Appeal Court found that the children’s objections to going back to the UK were not sufficient to prevent their return.

Enforcement (or not)

Over a further month passed before a meeting was arranged between Dylan and Austin and Samantha, in early June 2009.  The children reacted in a very hostile way to their mother:  Dylan attacked her physically and Austin was shouting and crying and refused to meet with her. 

Not much seems to have been done then for months and months, and in October 2009 Samantha’s lawyer complained about the French authorities’ refusal effectively to bring about the children’s return home.

The Public Prosecutor in France finally met with Samantha in April 2010 (so, for those not following the chronology as closely as they might, A YEAR after the decision that the children must be returned).  That meeting was to “take stock” of the situation.  The Prosecutor apparently informed Samantha that, although the Judgment ought to be executed, he would not order its enforcement, considering that, “given the children’s ages and personalities, it would not be apt to implement it”.

Communications between officials in the UK and France continued into Summer 2010, with the former confirming Samantha was available to come to France to collect her children.  However, nothing further was done on the Continent.

In December 2010, Austin secretly contacted Samantha and asked her to come to collect him, which she did.  She returned with Austin to the UK.  Dylan, however, remained with the father.

D turned sixteen in January 2011, which meant he could no longer be subject to an order under the Hague Abduction Convention (which only applies to children under the age of sixteen).  He continues to live with his father in France.

Samantha’s Complaint to the European Court

Arising from the way that the French authorities had responded to the children’s predicament, Samantha complained that her rights under the European Convention on Human Rights (“ECHR”) had been breached.

In particular, she asserted her rights under Article 8.

The original text of the Human Rights Convention

Article 8 is headed “Right to respect for private and family life”, and reads as follows:

“1.       Everyone has the right to respect for his private and family life, his home and his correspondence.

“2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Samantha’s application was lodged in January 2011.

The European Court’s Decision

In ruling on Samantha’s application, the European Court reiterated that the ECHR must be applied in accordance with principles of international law.  With regard to the positive obligations imposed by Article 8 in reuniting a parent with his or her children, these had to be interpreted in the light of the Hague Abduction Convention and the UN Convention on the Rights of the Child.  These instruments emphasised the paramount nature of the child’s interests.

The court commended how rapidly the French authorities reacted once the procedure under the Hague Abduction Convention had been started.  It also noted that the French authorities had used various methods to convince the father to cooperate in organising the children’s return to the UK.  As the meeting between Dylan and A and their mother in June 2009 had failed so completely, and had deeply affected the children, the court considered it understandable that the French authorities had decided that, as things stood, a return to Samantha in the UK could not take place.

The European Court noted that the French authorities had nonetheless pursued efforts, in collaboration with agencies in the UK, to bring about the return.  So, an assurance was forthcoming that the children would not be handed over to their mother on return and would not have contact with her.  The assurances continued that the father could remain with the children pending a decision locally on residence.

However, then the French responses to the situation became less laudable.  The authorities there, the European Court noted, gradually reduced their activity.  Thus, no steps likely to implement the children’s return were taken between the autumn of 2009 and April 2010.  Even then, the extent of the French authorities’ action was to invite the father to make contact for the purpose of arranging a meeting.  He did not respond.  It did not appear that the authorities took any significant steps after that date.

The European Court in Strasbourg, France

The court was not critical of the French authorities’ decision not to resort to forcible execution of the children’s return, and not to enlist the police to help bring that return about.  However, it considered that coercive measures could and should have been taken against the father.  In not taking those coercive measures, the French authorities had been remiss.

Of the children’s views, the court recognised that the difficulties encountered arose from the attitude of the children themselves.  They had clearly stated their refusal to return to Samantha in the UK.  The European Court considered, however, that that attitude was not necessarily immutable.  That this was so was shown by Austin’s decision to return home to live with Samantha.  The court further observed that, although the children’s opinions had to be taken into account when applying the Hague Abduction Convention and Brussels II revised, their objections were not necessarily sufficient to prevent return.

A European Court courtroom

The court concluded that the French authorities had not taken all of the measures that they could reasonably have taken to bring about Dylan’s and Austin’s return to the UK.  By 5 votes to 2, the court held that there had been a violation of Article 8.

France was ordered to pay €5,000 by way of non-pecuniary damage and €5,500 towards costs and expenses.

The decision is not yet final.  Within three months, any party may request the referral of the case to the Grand Chamber of the Court.  If that is done, a panel of five Judges will consider whether the case needs further examination.