N (a child), Re V

In a private-law dispute about a child’s upbringing, the court must conduct the welfare assessment required by Children Act 1989, section 1. It must compare the available residential arrangements and select the one most likely to provide the best outcome throughout the child’s childhood. A biological connection does not determine the result merely because each proposed home has a biological parental connection. The court must consider the child’s existing attachment, the likely effect of separation, future contact, and each household’s capacity to meet the child’s medium- and long-term needs.

N, aged about 18 months, was born following a surrogacy arrangement between Mrs P and Mr SJ. Mrs P and her husband had cared for him since birth. Mr SJ, described as N’s biological father, and his wife sought responsibility for his upbringing.

At Exeter District Registry, Coleridge J heard extensive evidence, including expert psychiatric evidence and the guardian ad litem’s view. He preferred the future offered by Mr SJ and his wife and made an order for transfer of residence. The P family appealed, alleging insufficient weight to N’s attachment to them, an unrealistic assessment of future contact, and an unfair assessment of their parenting capacity and past conduct.

The central issue was whether the judge had erred in his welfare evaluation between the two competing homes.

1. Appeal dismissed. Thorpe LJ held that Coleridge J had undertaken the correct discretionary welfare exercise under section 1 of the Children Act 1989. He identified the competing residential arrangements, made the necessary findings of fact, considered the expert and guardian evidence, and decided which home was most likely to secure N’s best outcome over the course of childhood. Lloyd and Toulson LJJ agreed.

2. The judge’s formulation of the issue was correct. Since each proposed home had a biological parental connection, that connection did not itself resolve the dispute. The judge had not overlooked N’s secure early attachment to the P family. His later consideration of the expert evidence showed that he had kept the likely effect of severance firmly in mind.

3. The challenge concerning future contact disclosed no error. The judge was entitled to weigh the practical and emotional difficulties of contact against the expert evidence. The future course of contact with the parent who did not have care could not confidently be forecast, whichever residential option was selected.

4. The further challenge to the assessment of the P family’s parenting capacity and past deception was also rejected. The Court of Appeal could not properly say that the judge had exaggerated or underestimated the relevant factors. The appeal therefore provided finality only; it identified no sustainable basis for appellate intervention.

5. Lloyd LJ added, expressly without affecting the outcome, that the legal-parentage consequences of the Human Fertilisation and Embryology Act 1990 might be more radical than Thorpe LJ’s terminology suggested. In the circumstances described, Mrs P’s husband, rather than the biological father, might be treated by the Act as the legal father. That point could require consequential orders but did not alter the welfare decision.

• Court of Appeal (Civil Division). In [2007] EWCA Civ 1053, the court dismissed the appeal and upheld the welfare decision.
• Exeter District Registry (Coleridge J). On 10 July 2007, following a four-and-a-half-day hearing, the judge selected the residential care arrangement offered by the J family and ordered transfer of residence.