Z (Care Proceedings: Surrogacy)

Permission to withdraw care proceedings must be granted where it is plain and obvious that the local authority cannot satisfy the threshold criteria for a public law order. If that conclusion cannot be reached, the court must consider whether withdrawal promotes or conflicts with the child’s welfare and whether it accords with the overriding objective. The relevant threshold date is ordinarily the date when protective arrangements were put in place, although later evidence may be considered insofar as it relates to the circumstances at that date. Parental dishonesty or lack of frankness does not itself establish likely significant harm. Its likely effect on the child must be identified and assessed in context.

Care proceedings concerning a child born following an international surrogacy arrangement. The local authority had issued proceedings after the child was removed from the care of the prospective parents in circumstances involving concerns about one carer’s historic convictions for sexual offences against children and misleading information about onward travel.

The child was subsequently placed with the prospective parents under wardship arrangements and returned with them to Thailand. Psychological and parenting assessments were positive, and all parties supported the local authority’s application for permission to withdraw the care proceedings. The central issue was whether the threshold criteria could be satisfied and, if so, whether withdrawal was consistent with the child’s welfare and the overriding objective.

1. Withdrawal framework. Applying GC v A Local Authority (A Child)(Withdrawal of Care Proceedings) [2020] EWCA Civ 848, the court identified two categories of withdrawal application. In the first, the local authority cannot satisfy the threshold criteria under section 31(2) of the Children Act. Where that inability is obvious, permission to withdraw must be granted. In the second, where the evidence could establish threshold, the court must consider the child’s welfare and the overriding objective under the Family Procedure Rules.
2. The relevant date for threshold was 6 May 2020, when protective arrangements were put in place. Evidence obtained during the proceedings could be considered where it related to the state of affairs at that date, applying Re G (Children: Care Order) [2001] EWCA Civ 968.
3. The case fell within the first category. There was no evidence that the child had suffered significant harm. The psychological assessment, parenting assessment, and the parties’ subsequent open and cooperative engagement made it plain and obvious that the threshold criteria could not be satisfied. The historic convictions justified investigation, but did not themselves establish likely significant harm.
4. The court also applied the guidance in Re K (Children: Placement Orders) [2020] EWCA Civ 1503. Dishonesty must be assessed by reference to its likely effect on the child, and the link between the conduct and welfare must be explained. The misleading information given at the airport was considered in the context of the surrounding circumstances and subsequent engagement with professionals.
5. Permission to withdraw the public law application was granted. The wardship order was discharged because the child had returned to Thailand and no longer required that protective mechanism.

The judgment was a first-instance decision of the High Court (Family Division). Care proceedings were issued on 15 May 2020, transferred to Keehan J, and thereafter determined by Mrs Justice Knowles. The judgment records the earlier wardship and placement arrangements but does not identify an appealed decision.