J (A child) (Surrogacy: Adoption Order), Re

In adoption proceedings following an informal surrogacy arrangement, the child’s lifelong welfare remains paramount. The court must determine disputed facts on the balance of probabilities, without reversing the burden of proof or relying on speculation. Lies are not proof of wrongdoing by themselves; their significance depends on the evidence and their demonstrated impact on the child’s welfare.

Where the biological father cannot be identified despite reasonable consideration of notification, the court may maintain a non-notification direction. Adoption may nevertheless be appropriate where it is the only order securing the child’s lifelong stability, legal status and established psychological family relationships. The court must account for harm caused by deception, while assessing whether future risk is mitigated by the final order and the findings made.

The applicants sought an adoption order for J, a child born following an informal surrogacy arrangement. The intended father was initially recorded as J’s biological father, but a court-approved DNA test excluded him. A previous private DNA report had indicated paternity, but the court found that the report had been edited and that a sample from the intended father’s mother had been submitted as J’s sample.

The surrogate consented to adoption but did not identify J’s biological father. The court therefore considered the circumstances of conception, the misleading DNA evidence, the parties’ conduct, whether the paternal family should be notified, the validity of the surrogate’s consent, and whether adoption was in J’s lifelong welfare interests.

1. Fact-finding. The applicable standard was the balance of probabilities. The burden remained on the party seeking a finding. Findings had to be based on evidence and proper inferences rather than suspicion or speculation. Lies could be relevant, but they were not direct proof of guilt or wrongdoing and had to be assessed in their factual and welfare context.
2. Findings. The surrogate had engaged in unprotected penetrative intercourse with a third party around the time of conception. The applicants knew there was a risk that the intended father was not biologically related to J, yet proceeded with the parental order application. The court found that the applicants knowingly submitted an edited private DNA report and that the paternal grandmother had provided her own sample as J’s. The deception misled the Guardian and the court and delayed the proceedings.
3. Statutory framework. A parental order following conventional surrogacy required the use of the gametes of at least one applicant under Human Fertilisation and Embryology Act 2008, sections 54(1)(b) and 54A(1)(b). The adoption application was governed by the child’s welfare throughout life under section 1 of the Adoption and Children Act 2002.
4. Procedure and notification. The surrogate’s consent had been freely and unconditionally given and could be accepted without the prescribed form because the court directed otherwise under rule 14.10(2) of the Family Procedure Rules 2010. The non-notification direction concerning J’s paternal family remained appropriate because the biological father was unknown, the surrogate provided no identifying information, and there was no identifiable person to notify.
5. Welfare. The deception caused harm by obscuring J’s identity and biological origins. That harm had to be considered under section 1(4) of the Adoption and Children Act 2002. Nevertheless, the evidence showed that J was fully integrated into the applicants’ family and that they were J’s psychological parents. A child arrangements order or special guardianship order would not provide the required permanence and legal status. Adoption was therefore made because it was in J’s lifelong best interests. The court did not condone the parties’ conduct and directed that further submissions could be made on publication and possible notification of the HFEA.