CW v NT & Anor

In determining competing applications for a child’s residence, the paramount consideration is the child’s welfare, assessed by applying the welfare checklist in Children Act 1989, s 1(3). A surrogacy agreement and a promise to surrender the child are relevant background, but should not receive undue weight or operate as a penalty for changing one’s mind. The court must assess each proposed carer’s capacity to meet the child’s physical and emotional needs. Existing attachment, the likely emotional harm caused by disrupting it, and each carer’s willingness and ability to support the child’s relationship with the other parent are important considerations. The decision is fact-sensitive and ultimately depends on which arrangement best serves the child’s welfare.

The applicant, the biological father of a five-month-old child conceived pursuant to an informal surrogacy arrangement, sought a residence order after the mother decided to keep the child. The mother opposed the application and sought residence herself. The child’s paternity had been confirmed by DNA testing. The child had remained in the mother’s care, was being breastfed, and had formed a clear attachment to her. The central issue was which household would better meet the child’s welfare and emotional needs, having regard to the parties’ conduct, credibility, proposed arrangements and the child’s relationship with both parents.

1. The application was determined by the welfare principle in s 1 of the Children Act 1989. The child’s welfare was paramount, and the court considered the matters in the statutory checklist together with the parties’ rights to respect for family life under article 8 of the European Convention.
2. The court adopted the approach in Re P (Surrogacy: Residence) [2008] 1 FLR 177: when choosing between competing residential arrangements, the question is in which home the child is most likely to mature into a happy and balanced adult and achieve her fullest potential. The cases remained fact-sensitive.
3. The mother’s deceitfulness was relevant to credibility and suitability as a carer, but the court found that she had entered the arrangement in good faith and had genuinely changed her mind. The original promise to surrender the child was therefore not given undue weight and was not treated as warranting punishment.
4. The child had a clear attachment to the mother. Removing her at five months would create a risk of emotional harm, although the impact would be less than if removal occurred later. The proposed immediate transfer followed by several weeks without contact showed a serious lack of insight into the child’s emotional needs.
5. Although both households could meet the child’s physical needs, the mother was better able, at that stage and on balance in the long term, to meet her emotional needs. The court was satisfied that she would foster contact and a close relationship with the father, whereas it was less confident that the father and his wife would respect the child’s relationship with the mother.
6. The child was ordered to reside with the mother. Interim visiting contact with the father was to be arranged by the guardian pending a review hearing, when further orders could be made concerning long-term residence and contact. The guardian was given leave to disclose the judgment to the relevant local authority.

First-instance decision. The judgment does not state any prior appellate decision.