CW v NT & Anor: Surrogate mother allowed to keep her child

The case CW v NT & Anor [2011] EWHC 33 (Fam) has caused a number of headlines but, at its heart, is a simple decision based primarily upon the capacity of the parties to meet the child's needs.

The facts: In 2009, the mother met a couple ("Mr. and Mrs. W") over the internet and agreed informally that she would be inseminated by Mr. W and after the birth of the baby ("T") hand it to Mr. and Mrs. W. Pursuant to that agreement, the mother became pregnant by Mr. W, and received several thousand pounds from Mr. and Mrs. W. During the pregnancy, however, she changed her mind, and at T's birth she refused to hand over the baby as agreed.

On 23rd July 2010, when T was seven days old, Mr. W filed an application for a residence order. The mother filed a response opposing the application and seeking a residence order in her own name. On 26th August, the court directed DNA testing to establish T's paternity, and the tests confirmed that Mr. W was the father. At a further hearing on 13th October, directions were given inter alia transferring the matter to the High Court, making T a party to the proceedings and appointing her guardian. The case was heard by Mr Justice Baker on the 15th to 17th December.

Held: Mr. W's application was refused, and a residence order was made in favour of the mother. An order was made for defined interim contact in favour of Mr. W, and the matter re-listed for review in February 2011.

Mr Justice Baker expressed 'considerable concerns' about the reliability of some of the evidence he heard. Specifically, he did not believe that Mr. or Mrs. W or the mother had told him the whole truth about a number of matters, for example the mother adopting a false persona to elicit information from Mr and Mrs W, and Mr and Mrs W's previous efforts to obtain a child.

Ultimately, however, the case turned on the court's assessment of the respective capacity of the parties to meet the child's needs. Mr Justice Baker concluded:

"On balance, I have reached the clear conclusion that T's welfare requires her to remain with her mother. In my judgment, there is a clear attachment between mother and daughter. To remove her from her mother's care would cause a measure of harm. It is the mother who, I find, is better able to meet T's needs, in particular her emotional needs. I am satisfied that the mother would foster contact and a close relationship between T and her father. I am less confident that Mr. and Mrs W would respect the relationship between T and her mother were they to be granted residence."