Surrogate Mother Sham Ms Justice Russell

When a high court judge attaches no importance to either science or evidence we might reasonably consider the resultant verdict to be a sham.

Case No: FD14P00262.  Neutral Citation Number: [2015] EWFC 36.  IN THE FAMILY COURT (Sitting in the HIGH COURT). IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF THE CHILDREN AND FAMILIES ACT 2014 AND IN THE MATTER OF M (A Child)

Royal Courts of Justice Date: 30/04/2015 Before: MS JUSTICE RUSSELL
Between: H & B 1st & 2nd Applicants and S 1st Respondent and M (A Child) (by her Children’ Guardian) 2nd Respondent.

The case concerns the the forced removal of a child from her mother to give to her father and his same sex partner. According to Ms Justice Russell, this is because it was in the best interests of the child to do so. (Case no FD14P00262)

To justify this outcome we can read the Ms Russell's Judgement Here. However A detailed examination of this judgement shows that there is very little substance in it. A search for evidence of anything is disappointing. What one finds is rather a character elevation of the father and his lover and a character defamation of the mother through;
  • the false allegation that there was some kind of implied surrogacy agreement,
  • the false allegation that she executed a hate campaign against the father and his lover,
  • the false allegation that the mother is homophobic, and
  • the suggestion that there was a some reason for the placement of her older children with the father which justifies this placement, however the reasons, are left for us to imagine).
In this article we shall look at the points above and others in relation to the events that surround this case. Of course we cannot talk about the case its self but must instead rely on information in the public domain. This being the judges published judgement and the testimony of witnesses that that were never involved with the case. Why they were not called to the stand is possibly because they might have told "the truth the whole truth and nothing but the truth".

What is not said is that the father and his male lover run a business in South West London and rent a house at around £4000 a month while the mother is an unemployed single mother and rents a one bedroom flat perhaps £500 a month in Kent. This fact is not highlighted by the judge but I suspect this had a considerable influence on what she considered to be "the best interests" of the child.

Before going on I wish to make it clear that I have known the mother and her children for about 7 years and have been acquainted with the men in question on a few occasions over a period of a year leading up to the litigation.
  • I do not believe that any party to this case are any worse or better than any other in any absolute sense.
  • I do believe that no party to this went into becoming a parent with the idea of gaining advantage over the other.
  • All went into it with good faith and poor understanding which could probably be said of almost every situation (including marriage) where a man and a woman choose to have a child.
Of course it often goes wrong and then family law gets involved and turns a disagreement into a war. Not all solicitors or judges are like this but in this case it appears that both lack any sense of justice or understanding of how to get to the truth and instead have fabricated an outcome focused on promoting one side as the good guys and the other as the bad guy, in order to do this a number of misrepresentations have been made and evidence in the courts hands has been ignored to accentuate the myth.

Now let me deal with the issues one by one.

Surrogacy Agreement

It is the case that a letter was sent by Natalie Gamble Associates to the mother on 31st January 2014, just 4 days after she gave birth, that explains that the men had expected to share in the care of the child and that they expected the mother and child would live with them. This was also the position as one of them explained it to me a few weeks before the birth. So it is clear and there is conclusive evidence that at the time of the birth both men understood that this was not a surrogacy arrangement of any sort. There is also email correspondence that supports the view that there was no consideration of this being surrogacy.

It seems likely that they were advised by their solicitors Natalie Gamble Associates to make the claim and take the position that this was some kind of surrogacy arrangement, a position which perhaps they embraced not because they believed it, but solely because they were advised to do so. As far as I recall the issue was not raised until some months  after it started.

Notably it appears that Ms Justice Russell chose not to call witnesses such as myself who know very well what the agreement was and chose to ignore the evidence put in front of her that clearly shows it was not a surrogacy case (including the letter referenced above).

Although Russell claims that her decision was not based on the claim of a surrogacy agreement, by stating in the judgement that such an agreement existed she is using something that evidence implies is not true as a defamation of the mother, to support her final decision. Indeed as a result of her words almost all the press have referred to the mother as a "surrogate" which is a gross insult to any woman who is not.

I believe that the propagation of this myth was intended to provoke the mother into action that would form the justification for the removal of her child. As it is her restraint can only be admired.

I just heard news of another radio phone in discussing surrogacy and how could a mother give her baby away like that. It appears that although ordinary people would like to hear the truth they are instead fed this fictional account of life and that secrecy is used as a way of supporting that fiction. It appears that the institutions of this country regard us as too stupid to know the truth.

Hate Campaign

The claim that the mother executed a "hate campaign" is again totally unsubstantiated and once again Ms Justice Russell continues to ignore evidence to the contrary. The so called "hate campaign" consisted of me, Tom de Havas posting one piece of information on facebook regarding how the men had failed to provide even minimal financial support for the mother during her pregnancy while renting a £4000 per month property and how they had begun litigation so soon after the birth. Neither of the men asked me to remove it but rather took it to court to use as material against the mother. Actually the mother specifically asked me, or should I say even begged me, not to say anything about it online but I told her quite clearly that I was not answerable to her and would post the truth. I did as a result of her request remove the identifying information from the post. If she would not stand up for herself I saw no reason that I should not stand up for her and this is my position today.

As for the idea that this is a hate campaign, that is certainly not the case. Personally I do not think that any party to this case deserves to be hated. I believe that all three adults are innocent victims of their own badly thought out dream to be parents and victims of people in the legal system more interested in basking in the limelight then in the concepts of truth or of justice.

The secrecy surrounding this case is largely to protect a poor judgement from scrutiny by the public or by good lawyers as opposed to, to protect the interests of the child. This child will at some point trawl the internet and find out that the papers claim she was a surrogate child, implying that her mother regarded her as a commodity. It is only if we stand up against this slander that this child will learn that she was not.

Notably the mother was gagged by the court while Natalie Gamble Associates were so concerned about media coverage that they appeared directly after the final judgement on the Radio 4 Today programme talking about this case and surrogacy law even though they knew full well that there was no surrogacy agreement of any form express or implied, in this case as is evidenced by the letter written by them on 31st January 2014 on behalf of the men to the mother.

Is it possible they wish to project themselves into the forefront of this area of law by using this case. Perhaps they are trying to say that this case illustrates how complex surrogacy can be.

I can only liken such arguments to someone presenting the idea that a cat is in fact a kind of dog and when you tell them it is a cat they then argue that the definition of a dog is a complex topic.

Homophobic

Ms Justice Russell alleged in her summing up that the mother was homophobic, a further defamation contrary to evidence. The concept that the mother who had been friends with the homosexual father for 25 years, was homophobic seems to be another situation in which the evidence is swept aside in order to assist in building the notion that the mother is an aggressive and unpleasant woman of little standing.

Might I tentatively suggest that when one has to rely on character defamation to the extent that this judgement does, as a part of ones judgement then the judgement is not on very firm ground.

Placement of Her Older Children With Their Father

In the judges summing up she notes that the two older children were taken from their mother and placed with their father and then said that it is not necessary to look at why this was the case, thus leaving those that don't know to think the worst and assume that this new child may be subject to the same terrible fate. This is defamation by omission so let me fill in the gaps for you.

Of course if the reason for the removal of the older children bares no relevance to the removal of this child then why mention it? Perhaps simply to show that the point had been considered. So why not mention that actually the older children were removed because the mother severely breached contact orders with the older children's father and the court at the time, rather than punish her actually let this go on for a couple of years until finally passing the children to the father. (I did warn her this may happen.) She also managed to annoy CAFCASS who have not forgiven her. In all other respect she was an excellent mother.

The result of the transfer of the older children as far as I can see and as far as I heard was that the fathers new wife, who was friendly with the children prior to this actually decided to live elsewhere, and the younger of the two children appeared to be and has continued to be quite unhappy. The older child probably gets on better with her father though. So another mess because perhaps the courts should put MORE EFFORT INTO ENFORCING CONTACT ORDERS.

Naturally the mother found herself in a crises and to be fare we who knew her were not particularly sympathetic because we had seen the way she had treated the father over these years. We of course knew that he was not perfect and my attempts to go between them were rebuffed as he seemed to prefer to do everything through the court! Perhaps he assumed that because I was a friend of the mother that I would not support him against her even on issues where he was justified. He perhaps failed to understand that I will always put justice and the truth before my friends, and will always help them onto that road.

So the lesson was learned by the mother and dare I say it she was sorry not just due to what happened but in a much deeper way. She accepted fully the error of what she had done, acknowledged it and was determined to move into a better way of being and I believe she did so.

Her new attitude in court and compliance with orders meant she began to regain credibility with the court and I think the majority of her friends saw this change and we all welcomed it and knew it was real. We worked hard to support her and told her that rewards would come form it.

With respect to her newborn the judge imposed a contact order of 3 hours per day 6 days a week for the father which is unheard of in English law and caused its own issues. She complied except on one or two occasions but the minimal extent of her non-compliance is not documented in the judgement leaving people to think that the non-compliance was similar to before.

Compromise Agreement  

A few months ago I submitted a draft compromise agreement to Ms Justice Russell and the court and apparently commented "Who does he think he is!" Well in so doing she raised a very interesting point. The idea that the content of what I had written should not be evaluated on its own merit but instead should be evaluated based on my formal standing in society. This of course is a fundamental mistake of reason and one that would have excluded Albert Einstein from physics. Interestingly the same judge dismissed the World Health Organisation's stand on breast feeding and the science behind it so she does not always regard social standing as a gauge of value. Anyway the point is, is that the proposed compromise agreement was never part of the case and so is therefore not subject to the requirement of confidentiality which means of course that I can share it with you. It goes so far as to briefly explain the circumstances leading up to the birth and onward and proposes, what I believe and I am sure you will agree, is an outcome best suited to the child, namely that her parents are left in a position where they can still face each other as human beings. The main strength of this agreement is that it is based on the truth.

To answer the question.
  • I am a person who has had sight of this situation first hand.
  • I am also an individual of integrity who actually believes that the truth works and that evidence should never be ignored in order to support false conclusions.
  • I am the kind of person that loves his three children and their two mothers and knows that life is messy.
  • I am a person who has seen how some family courts can encourage parents into endless wars, milk a family dry and leave psychological scars so great that parents never communicate again and children's lives are shattered. I have watched as one of the afore mentioned mothers was encouraged by one of the many unethical solicitors, to lie and engage in lawfare against me, and I have come through it and been able to establish respect with that mother despite the lies she was encouraged to tell, and be good parents for our child.
  • I have always taken proper responsibility for my children and had proper contact.
My only hope is that at the end of this the mother S, the father H will at some point be able to regain respect for each other as people despite this sham judgement, calling the mother a surrogate, gagging her and giving her supervised contact to add insult to injury. I suspect that if respect is ever restored it will be as a result of my actions, not the court.

That is who I think I am.

Skeleton Principles for a Compromise Agreement 

Here is the agreement I drafted that was ignored totally, I have removed the identities of those concerned.

Between H the father

And S the mother

regarding M the baby

In order to cut to the chase I would recommend to the court to ignore a great deal of irrelevant material presented by both sides supposedly in support of the well being of this child.

I am quite aware that by providing this statement it contains criticism of both parents and that the temptation will be to quote segments of it in order to further the cause of one or other parent in this battle for possession of a child. Therefore I ask any party that is genuinely concerned for the interests of the child to read the statement in its entirety, so as to retain its meaning.

1. The Original Plan

As far as I am aware from my meeting with B (the lover of H)  a few weeks before M was born B was under the impression that S would come to live with H and him and they rented a house with this idea in mind.

As far as I am aware from my conversations with S the plan was that she would live with or close by to H and B so that they could all be involved with baby when it arrived. However it was always clear to me and I am sure it was clear to anybody that S is "the mothering sort" and that she certainly never visualised herself being subject to competition in this respect.

I recommended at the time that time that S should move first and live in close proximity to H and B before conception as good sense might have dictated. Sadly though good sense it seems did not prevail in either the father or the mother of this child and conception took place before any living arrangements had been established.

It seems completely clear that M is wanted and is treated properly by both parents.

2 About S

There can be no question that in the past that S has caused upset to her children and to the father of her children by obstructing contact in a manner that the courts should not have allowed her to get away with. I warned her about this on a number of occasions, things ran their course and finally the children ended with their father, causing disruption to their father, S and both of the children. What kind of partner W (the father of the older children) was to S or she was to him, I don't know, but he refused my attempt at mediation without so much as a discussion.

I have been lead to believe that H wrote a letter complimenting S's mothering skills, and I feel sure that he would not have conceived with her had he felt that she was a bad mother at the time of conception.

I have also observed her many times with her older two daughters and she appeared to be a wonderful mother and they appeared happy and well adjusted. Sadly her boyfriend when I first met her encouraged S to be hostile to W (their father) though I cannot say that there was not hostility from her also in terms of her attaching no importance to contact at the time, a quality seen in many women and not taken seriously by the courts, provoking many men to put on batman suits and climb on the roofs! (Families need fathers!)

[Its worth noting that she did not obstruct contact orders in the case of this baby M ]

3 About H and B

I first met H when S introduced me to him as he had plans to establish a business and was looking for investors. He was a friend of hers for many years. I did not invest because I know nothing about the particular business area. Just before the birth I met B in their home and then they attended my home as I attempted to sort out what was becoming a rapidly escalating situation. All parties felt both meetings resulted in positive outcomes.

4 The Escalation

Prior to the troubles and the meetings above, S decided in consultation with her older daughters that she should remain in Kent and she also believed that she was more likely to get her older children returned to her care if she was close to where they were living and schooling.

I believe this was a shock to both H and B as they felt the dream of family life they had so hoped for was falling apart in front of their eyes and turning into a nightmare and in response H did not give S any money for baby stuff rather buying it himself, and withholding everything in the hope that she would comply and move in with them. Notably the proposed arrangement in their house with the babies room next to their own and S's proposed room down the corridor and up half a flight of stairs past the bathroom, did not inspire confidence for a mother. Further to this H and B attempting to pressure S to have the baby induced when she didn't give birth on the due date helped to further develop the nightmare.

As I understand it the first litigation began 4 days after the birth and suggestions that the baby might be removed from S's care followed some time after that, turning a dispute into to an out and out war for control.

H has to recognise that you cannot find yourself a woman whose speciality is mothering, compliment her on it (in writing) and then try to take that away from her and offer her no financial support just because you decide to do the mothering yourself.

Both parents have been very short sighted and unrealistic in their assessment of each other.

5 The Fear

There can be little question in anyone’s mind that this battle is driven by fear and that, that fear is driven by the idea that the law courts can in one sweep push one parent into the background. [SOMETHING THEY HAVE NOW DONE]

This fear has lead to a campaign of descent and psychological destruction that no mother or father should have had to withstand during the first year of a child's life and indeed if it does continue there can be no doubt that significant harm will result to this child.

When one parent sets out to destroy the other a child's world is torn apart. So many divorces end exactly in this manner.

Therefore the only solution and the only way forward in this contest is not for there to be a winner and a loser but to ensure that all parties are winners. And such an outcome can only be achieved through fair and reasonable cooperation between the parties.

First the acceptance that despite the fact that H's partner in love is B he also has a partner in reproduction and that is S and in this respect he must fulfil the obligations to her and then can expect the benefits from her, that any father may expect. It would seem that B also wishes to see S as some kind of reproductive partner in that he wishes to be a second father to this child. Then he also should fulfil the obligations to her and then can expect the benefits from her, that any father may expect.

6 The Evidence

So let the first stage be to admit that in truth this case does not hinge around the adequacies or inadequacies of S as a mother. No new facts have come to light on this matter than those known to H when he decided to conceive and indeed the argument is based largely on the assumption that people do not change, which is clearly not the case here as S has made every effort to comply with the court which she did not do in the past. (This is of course at the same time as it being suggested by the cafcass officer that she should be prepared to lose her baby, a statement guaranteed to drive any parent into a frenzy!)

I understand that there is the suggestion that S will obstruct contact as she did with her older children. This has not been the case so far and so let it be dealt with when and if it occurs.

I understand that there is the suggestion that S will take M to Romania. Primarily she has two children in the UK and secondarily life in Romania is far far harder than it is here so this really is most unlikely. 

What she did and what the men are upset about is she decided to remain in Kent and not move to London. What they did was not to support her as a mother and then to legally assault her via every available avenue.

7 Fairness

It has to be noted that much of the fuss and cuffufle that fathers cause in relation to children in their mothers care is because they have come to understand that the only way to get more than one weekend every two weeks of contact, is to prove the mother to be utterly inadequate. Much court time is wasted in this ridiculous pursuit and this case is no exception.

Clearly if fathers felt that they would be treated fairly and their desire to take an active role in the raising of their children would be acknowledged they might not do this.

Therefore I suggest that a solution must acknowledge the father's role in raising a child as being potentially of equal value to that of the mother should the father and mother so wish it to be.

8 The guiding principles; Equality and Reality

We can regard H and S pretty much in the same light as any separated parents and just as any separated parents, if they are not to damage their child they will have to learn to work together in a constructive manner and to resolve conflict between them without escalation into legal battles courts or police. 

One thing is certain is that any child deserves contact with both parents and there are few excuses that can be given to a child for not allowing them to have it including that their parents are involved in a war of attrition. It may be hard for many adults to remember that children come first.

Any solution in this dispute must acknowledge that these parents  aspirationally both wish to take a large role and that, given there is no child abuse, it would be therefore be fair to aspire to an equal one even though this may be a revolutionary position for English Law it is a long overdue reform.

However the biological facts must be acknowledged and any contact must not require S to express her milk but S should agree that by the age 2 years M will be off the breast. Let us not be drawn into ridiculous arguments about exactly how long and how often feeding should take place that is S's decision and H needs to comply and acknowledge that his role is secondary in this and that a bottle is not a substitute for mothers milk. He also should recognise that bonding will happen because he is the father and it will be all the stronger if he supports the mother.

A court should not simply look to place the children in the care of one parent, on the basis of the winner of a mutual smear campaign, in order to deal with the fact that one or both parents appear incapable of being civil to one another. Rather civility must be demanded and enforced as it so often isn't.

Lawyers must recognise that their primary obligation is to the child who is not simply an object to be fought over. This is what it means to do something in the best interests of the child, an obligation which their client has and therefore so do they.

9 Aspirations

Aspirationally by age 2 the child shall be cared for equally by both parents in a constructive and cooperative relationship of mutual support.

No parent should be given contact time in which they put the child into child care arrangements while the other parent is available to provide care.

10 Implementation

I have drafted here a compromise agreement that I hope with only minor modification will be sufficient.

This relationship was not a surrogacy relationship but nor was it simply a donation of sperm either and there are witnesses to support this fact. It was a joint decision to reproduce with the intention of both parents being parents and also B being involved as part of the family.  

The priorities, highest first, in determining contact at this time should be;

(1) not to interfere with breast feeding,

(2) not to interfere with H's running of his business,

(3) not to have provocative or inflammatory contact arrangements,

(4) to examine the financial arrangements.

One cannot help but notice the traditional nature of this relationship in that H runs a successful business and that S has always been a caring mother in every respect other than her inability to get on with W who notably totally refused my attempts to mediate without even a discussion, and yes that has damaged the older two children.

In order to support M's care and contact I would propose that S make the concession to move closer to H given that H is currently tied to his business.

I would also propose that H make the concession of accepting some financial responsibility to support S as a mother above and beyond just paying child support, and that H should pay back any outstanding debts to S. He must recognise that providing S with basic financial support would be by far the best childcare option for him since he is running a business and that the amount he has spent on this legal battle dwarfs what would be required. 

This is just one proposal of course there are many others and I know for sure that there is a way that M can have her best interests met by having contact with both parents and of course her adoptive uncle B.

Yours Faithfully

Tom de Havas

Comment to the Rt Hon Sir James Munby

Your Honour - I believe you believe that the family courts should be more open. I believe that this case gives you the material to justify that argument. The allegation of "surrogacy" on which this case claims not to hinge [Judgement para 125], but from which it derives its public support, is certainly false, and this is proved beyond reasonable doubt within the material submitted to court, in particular the letter written to the mother on 13st January 2014 (4 days after the birth) by Natalie Gamble Associates stating the position of the father and his partner.

Your Honour you have a tough choice, to support your collogue or to support justice. Which will it be?

The damage that this false notion has cased can be found throughout the media.

Media

These papers engage in the libel.

On the other hand the BBC played safe and quoted Ms Justice Russell. Well done to them but they still did not seek to find out the facts from both sides and thus gave a totally unbalanced view. Here.

Today's winner for good journalism is THE DAILY MAIL's   Claire Duffin and Steve Doughty and Sam Marsden who actually tried to find the truth. Daily Mail - "Mother is gagged after being forced to hand baby daughter over to gay dad: Draconian court order means woman cannot even give her side of the story"
Well done and thank you for trying to maintain decency, truth and justice.



© Tom de Havas 2011. The information under this section is my own work it may be reproduced without modification but must include this notice.







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