Re M (Child)

In a child-welfare decision arising from surrogacy, a genetic connection is relevant but does not have primacy. The child’s welfare remains paramount, and genetic ties may be outweighed by continuity of care, emotional and identity needs, the harm of separation, and the ability of a carer to preserve the child’s relationships with all parents and siblings.

An appellate court should read the welfare judgment as a whole. It need not recite every welfare-checklist factor or give equal prominence to every feature, provided the realistic options and material considerations have been evaluated and balanced. In family proceedings, a Lucas direction need not be expressly set out in every judgment, but alleged lies must be assessed against the evidence relevant to each issue.

This appeal concerned Z, a 20-month-old child born through a surrogacy arrangement. Russell J ordered that he live with his gestational mother X and her partner P, have regular contact with his biological father A and A’s partner B, and that P and A have parental responsibility, but not B: [2016] EWFC 34.

A and B appealed the residence decision and the refusal to grant B parental responsibility. The remaining grounds alleged errors concerning the standard of proof, the treatment of lies, and the holistic welfare assessment, including genetic ties, identity needs and the long-term relationships among the adults and children. The central issue was whether the welfare evaluation justified maintaining Z’s placement with X and P.

Lady Justice Black gave the leading judgment, with Lord Justice Flaux agreeing.

1. Disposition. The appeal was dismissed in relation to Z’s residence and the other challenged welfare conclusions. It was allowed in relation to B’s parental responsibility, and an order granting B parental responsibility was substituted.
2. Standard of proof and factual findings. A judgment need not always contain an express self-direction on the standard of proof where it is clear that the judge understood and applied it. The judge’s findings were based on the evidence, including the witnesses’ oral evidence and presentation. Such credibility-based findings are not readily overturned on appeal where they have a proper evidential foundation and are adequately explained.
3. Lucas directions. The approach in R v Lucas [1981] QB 720 did not require an express self-direction in every family judgment. The judge had to assess each alleged lie in the light of the evidence relevant to that issue. Russell J had not treated dishonesty about one matter as establishing dishonesty about another, and her treatment of the evidence was conventional and lawful.
4. Welfare evaluation. The judge was required to evaluate the realistic placement options comparatively and holistically. Consistently with Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882, it was unnecessary to recite the welfare checklist or address every factor separately, provided the judgment read as a whole showed that the relevant matters had been considered and balanced. The judge was entitled to rely on the guardian’s analysis while evaluating the evidence herself.
5. Identity and genetic ties. Z’s identity needs included proper recognition of X’s continuing role as his gestational and de facto parent. The attitudes of A and B towards X and V were relevant to the prognosis for Z’s future relationships. Genetic ties to A and the twins were relevant but were not decisive. They had to be balanced against Z’s attachment to X, the detriment of separation, his emotional welfare, and the ability of each household to promote his relationships with all parents and siblings. The judge was entitled to conclude that X and P were better placed to secure those relationships and that moving Z was unjustified.

• Court of Appeal (Civil Division): In [2017] EWCA Civ 228, the appeal was allowed in part by granting B parental responsibility; the residence decision and remaining orders stood.
• High Court of Justice, Family Division: Russell J ordered that Z live with X and P, have regular contact with A and B, and granted parental responsibility to P and A but not B: [2016] EWFC 34.