Ruth Cabeza and Mavis Amonoo-Acquah, instructed on a pro bono basis by Natalie Sutherland and Shaili Gohil-Desai at Burgess Mee, represented the First and Second Applicant in Re: Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 (30 January 2024)
20th Feb 2024 | Cases
This case is a groundbreaking case – the first of its kind in dealing with a contested application for a stepparent adoption order from a non-biological parent to secure legal parentage of a child born after a traditional surrogacy arrangement.
The clients are a same-sex male married couple, and in August 2021 the court made a parental order in their favour alongside a contact order setting out spending time arrangements for the surrogate and the child. Contact broke down soon after the conclusion of those proceedings and the fathers applied to vary or discharge the contact order. The surrogate then appealed the parental order on the basis that her consent had been conditional on the contact arrangements. The appeal was successful (Re: C (Surrogacy: consent) [2023] EWCA 16), as is a legal requirement that a surrogate (and her husband/wife/civil partner if she has one) gives their consent to the making of a parental order – the court cannot dispense with their consent if it is not given freely and unconditionally.
Following the appeal of the parental order, the child had no legal relationship with his non-biological father as legal parenthood reverted back to the surrogate. The reality was that the child lived with his two fathers but the legal parenthood was held by only his biological father and the surrogate.
Acting pro bono, Ruth and Mavis represented the stepfather and his husband in an application to obtain a stepparent adoption order. Although a parental order is similar to adoption in that it transfers legal parenthood from the birth parents to the intended parents, a key difference in the two types of orders is that with an adoption order, the court can dispense with the consent of the birth parent if the welfare of the child requires it.
Although the surrogate was clear that she did not wish to play a ‘parental’ role in the child’s life she did wish to have an independent and meaningful relationship with the child via contact, and on that basis she objected to the making of an adoption order. The surrogate believed that if an adoption order were made, the applicants would cut her out of the child’s life.
Mrs Justice Theis in her judgment emphasised that this was a difficult case but ultimately concluded that there was a risk that if the adoption order were made the fathers would fail to comply with arrangements for contact. The judge also found that making an adoption order would have no benefit to the child, whose day to day lived experience would be the same with or without an adoption order. On that basis, the judge declined to make the adoption order, finding that other, less draconian orders would meet the child’s welfare needs. As a result therefore, the court found that the criteria in s.52(1)(b) of the Adoption and Children Act 2002, were not met and there was no basis to dispense with the surrogate’s consent to the making of the order.
Instead, the judge ordered that the child lives with the father and the step-father under a ‘lives with’ child arrangements order, and made a standalone Parental Responsibility order in the step-father’s favour. Although the surrogate retains the legal status of the child’s mother, the court made orders severely restricting her right to exercise parental responsibility ensuring the fathers’ freedom to make decisions regarding the upbringing of the child independently of the surrogate. The court also made orders for limited direct and indirect unsupervised contact between the child and the surrogate and a s.91(14) barring order which prevents either party from making any further application in relation to the child for a period of three years.
Ruth comments:
“This case highlights the very serious problems that can arise in a case where intended parents and surrogates enter into surrogacy arrangements without thorough preparation and professional support to ensure that they are suitable to undertake a surrogacy journey, fully prepared for the emotional and practical issues that may arise along the way and have the necessary support networks in place to enable them to make that journey without compromising their own or the child’s welfare.”
To read the full published judgment click here: Z, Re (Surrogacy: Step-parent Adoption) [2024] EWFC 20 (30 January 2024) (bailii.org)
