Family Law Newsletter – June 2025
newsletter
23/06/2025
Welcome
Family Law Newsletter – June 2025; Articles, news, legislation updates and case updates from Care Proceedings, Private Law and Financial Remedy matters.
Edited by Lauren Gardner and Eleanor Gardner; news and Case Updates by 2025 Pupil Caitlin Smithey
Contributors
In The News
Case Updates
Re Z (A Child) [2025] EWCA Civ 594
In the Court of Appeal before Lord Justice Moylan, Lady Justice Whipple and Sir Launcelot Henderson
The Appeal
This case concerned an appeal brought by a father in respect of the findings of fact made by the Judge at first instance in proceedings where the father seeks an order for the return of J, aged 8, to Egypt. The mother opposes J’s return to Egypt and relied on allegations of abusive behaviour by the father, in support of her case. The schedule of allegations by the mother contained five categories:
- Coercion and control
- Sexual abuse
- Physical abuse
- Emotional abuse
- Financial abuse
The mother was unsuccessful on allegations 1, 2 and 5 however the first instance Judge found that the allegations of physical and emotional abuse were largely established.
The first instance Judge also made findings against the mother. Namely, contrary to the mother’s case, the father was not aware of the mother’s plans to relocate to the UK with J and that the mother had used a forged Egyptian custody order in order to prevent the UK school K attended from communicating with the father, amongst other purposes.
Permission to appeal was granted on two grounds:
- The judge failed to provide adequate reasons in support of her findings that the mother was the victim of verbal and physical abuse by the father; and
- The judge adopted a flawed evaluation of the evidence when determining that the mother was the victim of verbal and physical abuse by the father.
Legal Principles
The parties were married from 2016 until they separated in 2021. In 2017, J was born in Egypt where all parties lived and had always lived. After the parties seperated, the mother and J moved to live with her parents, which was nearby to the marital home.
In May 2022, the mother and J arrived in England under a skilled work visa. Following their arrival in England, there was no contact between the father and J until a court order for video contact was made in June 2023.
When applying for her work visa, the mother had relied upon a forged Egyptian solo custody order. The mother claimed she had not read this document, a claim which the first instance Judge considered to be ‘simply not credible’.
In November 2023, the mother was dismissed from her employment and asked to leave the home of the family members with whom she and J were staying. Following this the mother informed the father’s solicitors that she intended to return to Egypt however this did not happen. On 25 January 2024, the mother claimed asylum in England. This was refused on 2 May 2024.
Since 2024, the mother and J have lived in a hotel which accommodates asylum seekers. This hotel is not in the area in which they were previously living, and so J has moved schools. The father’s application for a visitor visa to travel to the UK had been refused.
The father commenced proceedings seeking J’s return to Egypt in May 2023.
The father relied on the submission that the mother was ‘a wholly unreliable witness’ in his appeal and that there were significant inconsistencies in her evidence.
The mother relied on the comment by the Guardian that “while the mother’s account has ‘escalated’, this is not unusual in those who have experienced trauma through being subject to domestic abuse”.
Counsel for the father also raised concerns regarding the fact that the Schedule contained a finding of physical abuse that had not been mentioned at all in the course of the judgment. Counsel for the mother accepted that the judgment had not included a basis for this finding on the Schedule.
Legal Principles
The Court of Appeal outlined three authorities that indicate when an appellate court can alter factual findings made by a trial judge,
Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, Lord Neuberger established that:
“[52] … The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judge’s findings of primary fact.
[53] As Baroness Hale and Lord Kerr of Tonaghmore explain in paras 200 and 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).”
In Henderson v Foxworth Investments Ltd and another [2014] 1 WLR 2600, the following was outlined:
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
In Volpi v Volpi [2022] 4 WLR 48:
“[2] …. the following principles are well-settled:
(i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
(v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.
(vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
The court also considered the requirements under Practice Direction 12J of the Family Procedural Rules 2010 which requires a Court to record any findings of domestic abuse in writing in a Schedule to the relevant order.
Judgment
The Court considered that the first instance Judge dealt with the ‘allegations in relatively summary terms’. Counsel for the father sent a request to the Judge for clarification, inviting her to address findings sought by the father. The Judge responded by pointing out she had made findings in relation to five of the eight matters raised, and then added a paragraph to judgment in respect to the other three matters raised detailing the potential effect on J.
The Court expressed how upon first reading the judgment, there was reason to be concerned regarding the broad way in which the allegations of physical and emotional abuse had been dealt with.
In relation to the allegation of physical abuse it was accepted that it was there by error. The Court of Appeal did not accept that this erroneous inclusion undermined the other findings, but instead, it showed there had been an error in drafting the order and thus was not demonstrative of any deficiency in the Judgment. It was determined that the paragraph in question should simply be deleted the schedule.
The court rejected the submission that the Judge did not take account of ‘the overall landscape of the evidence’ on the basis that the Court considered the Judgment to have a ‘clear appreciation of that landscape’ due to the references to the history and evidence within the Judgment. This included the mother’s credibility on the basis that the Judge rejected significant aspects of the mother’s case and some of her allegations. Furthermore, the fact that the mother had lied on some matters within the proceedings did not mean that the Judge was unable to accept any other part of her case. The Court of Appeal found that Judge’s referral to specific examples of inconsistencies by the mother made it clear that these inconsistencies had been considered.
The Court of Appeal concluded that the first instance decision was not flawed and that the inconsistencies of the mother that were relied on for this basis could only be considered to form ‘part of the landscape’. As such, the father unsuccessful in attempting to show that there was ‘no basis in the evidence’ for the conclusion reached and as such did not meet the test for an appellate court to overturn the findings of fact.
Mr and Mrs K v Mr and Mrs Z
Before Mrs Justice Knowles in the High Court Family Division
Factual Background
This application for a parental order was brought by Mr and Mrs K in respect of 14-month-old boy ‘B’ who was born in January 2024 following a gestational carrier agreement in California. The embryo was created using Mr K’s sperm and a donor egg and then carried by Mrs Z who acted as a gestational surrogate. Both Mr and Mrs Z have consented to the making of the Paternal order.
Central to this case was the age of the applicants, who were both aged 72, meaning that by the time B reached adulthood they would both be 89 years old. This was considered in light of the impact it would have on B’s welfare throughout his life.
After having difficulties in starting a family, Mr and Mrs K’s first son ‘A’ was born following IVF in 1993. Sadly in 2020, he died shortly before his 27th birthday. In hopes of becoming parents again, by 2021, Mr and Mrs K began a search for a surrogate.
The couple were matched with Mrs Z through a California surrogacy service. As is customary, before B was born, the applicants obtained a pre-birth order in December 2023 which conferred exclusive parental and legal parentage status upon them when B was born.
After the birth of B, he was discharged from the hospital into Mr and Mrs K’s care. The family returned to the United Kingdom 7-8 weeks later in March 2024 with a US passport for B and a US birth certificate naming Mr and Mrs K as his parents.
Mr and Mrs K are wealthy and well-established within their local community. The applicants have approached friends of A, Mr and Mrs Q, who are a couple in their 30s who have agreed to be B’s guardians in the event of Mr and Mrs K’s death or incapacity. Similarly, Mrs K’s niece has also confirmed in a statement that she would be willing to become B’s guardian should Mr and Mrs Q be unable to act in that capacity.
Legal Framework
Despite Mr and Mrs K having obtained a Californian parental order, in this jurisdiction B’s legal mother and father are Mr and Mrs Z, the surrogate parents.
Applications for a parental order are governed by Section 54 of the Human Fertilisation and Embryology Act 2008. The Court has the power to make a parental order in respect of a child born via a surrogacy agreement where:
- Such an order meets the child’s welfare in accordance with section 1 of the Adoption and Children Act 2002
- The following criteria are satisfied:
- The child has been conceived artificially and is genetically related to one of the
- intended parents (s. 54(1)).
- The intended parents are married, in a civil partnership or living as partners in an
- enduring relationship (s.54(2)).
- The intended parents have applied for an order within six months of the child’s
- birth (s.54(3)).
- At the time of the application and the making of the order, the child’s home has
- been with the applicants and at least one of the applicants is domiciled in the UK
- (s.54(4)).
- The intended parents are over 18 years old (s.54(5)).
- The surrogate (and her spouse, if applicable) has given her consent to the making
- of a parental order and that consent has been given freely, unconditionally and with full understanding of what is involved and that consent has been given more than six weeks after the birth of the child (s.54(6) and s.54(7)).
- The surrogate has been paid no more than reasonable expenses, unless authorised by the court (s.54(8)).
The Court must also consider the welfare checklist which is set out in Section 1(4) of the Adoption and Children Act 2002:
(1) The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding) (s.1(4)(a)).
(2) The child’s particular needs (s.1.(4)(b)).
(3) The likely effect on the child (throughout his life) of having ceased to be a member of the original family and becoming the subject of a parental order (s.1(4) (c)).
(4) The child’s age, sex, background and any of the child’s characteristics which the court considers relevant (s.1(4)(d)).
(5) Any harm (within the meaning of the Children Act 1989) the child has suffered or is at risk of suffering (s.1(4)(e).
(6) The relationship which the child has with relatives, with any person who is a prospective carer with whom the child is placed, and with any other person in relation to whom the court considers the relationship to be relevant, including:
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs, and
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child (s.1(4) (f))
Finally, the Court’s paramount consideration must be the child’s welfare throughout his life in accordance with Section 1(2) Adoption and Children Act 2002.
The Judge also considered the comments of Sir James Munby (Former President of the Family Division) Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam):
“A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences… Moreover, these consequences are lifelong and, for all practical purposes, irreversible… And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount… Parliament has therefore required the judge considering an application for a parental order to look into a distant future.”
Conclusion
It was submitted on behalf of the applicants that Mr and Mrs Q would only take over B’s care if both of the applicants died. If only one died, the other would assume sole care for B and they would be supported by a nanny. B’s care is already supported five days a week by a nanny. Furthermore, the Wills of both Mr and Mrs K provide for B in a discretionary trust. Both applicants, in respect of both property and finance and health and wellbeing, executed Lasting Powers of Attorney.
It was therefore submitted that there was a comprehensive plan for the care of B which would be kept under review as he grew and his needs developed.
It was considered that Mr and Mrs K satisfy the conditions of Section 54 as B was born from Mr K’s sperm, Mr and Mrs K have been married many years and are aged over 18. Furthermore, the application was made within 6 months of B’s birth and Mr and Mrs Z had consented to the making of such an order via the appropriate procedures.
Whilst payment was made to Mr and Mrs Z in the sum of £126,424.09 plus reasonably incurred costs, this sum was made in accordance with the surrogacy agreement of a reputable Californian surrogacy agency. It was considered that this amount did not distort the surrogate’s agency and that B’s need for a parental order overrode the considerations of the sum and so the payments made were authorised by the Court.
The Court also considered how the elderly age of the applicants meant that B is more likely to experience loss and grief through the incapacity or death of one of his parents in his childhood when he is ill-prepared to deal with this. However, the Court emphasised it does not wish to ‘moralise about the wisdom of having a baby through surrogacy at an advanced age’ but did stress that it is important that arrangements for the child’s future care have been planned and actioned in respect of what would happen should the worst occur. The Judge was satisfied that in respect of the arrangements made for B’s care should either or both parents die, appropriate steps had been taken to prioritise B’s welfare in the ‘short, medium and long term.’
The case was differentiated from Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) on the basis that Mr and Mrs K had undertaken due diligence before engaging in surrogacy and their actions were ‘welfare-driven’. Furthermore, B had US citizenship and so had not been rendered stateless as the children were in Re Z. Additionally, in the present case there were no concerns of exploitation in the surrogacy arrangement.
A parental order was made in respect of Mr and Mrs K in order to give B permanence and security and provide B with the social and emotional benefits of this formal recognition.
The Judge also took the opportunity to ‘urge’ parents of advanced years to consider the Re Z welfare considerations carefully before engaging in a surrogacy agreement.
