The recently published decision of Mr Justice Williams in A&B v C&D is a significant development in the law in relation to surrogacy. Marisa Allman and Kate Tompkins represented applicants for parental orders in two different cases heard by Mr Justice Williams leading to his group decision which clarifies and advances the law in relation to applications for parental orders.
In confirming that the paramountcy principle applies to the decision of whether to retrospectively authorise expenses and considering the role of public policy, Mr Justice Williams held;
However since welfare became paramount in Parental Order applications, and certainly as our approach to paramount welfare has developed through the authorities outlined above, it seems to me they make clear that ‘public policy’ can play no part in a paramount welfare determination, and that if one were to weigh public policy issues in the decision-making it would be wrong as a matter of law. The paramount welfare environment is dramatically different and in my view goes much further than to weigh the balance between welfare and public policy decisively in favour of welfare; rather, pure public policy matters are not a legitimate part of the balance at all.
Having said that public policy cannot be taken into consideration, I would emphasise that what I am referring to is ‘pure’ public policy, rather than behaviour of the Intended Parents, which might fall foul of public policy, and which also sounds in the welfare of the child. Ms Allman submitted (and I agree with her) that;
“In reality, the most egregious abuses of public policy are likely to be factors that militate against a parental order being in the best interests of the child(ren). In a case involving clear exploitation of a surrogate or commodification of a child by the applicants in bad faith, this would not only be an egregious abuse of public policy, but also those same factors must be relevant to the welfare exercise that the court is required to undertake.”
Mr Justice Williams went on to give guidance to intended parents looking to embark on a surrogacy arrangement about the court’s expectations.
The judgment can be viewed here.
Marisa was instructed by Hanne & Co. Solicitors LLP and Kate was instructed by DMH Stallard LLP.
Further information
For more information from the family team, contact clerks@36family.co.uk
