M stated that she had met F’s wife “W” and agreed to have a baby for them as they were unable to conceive. M said that she had not been paid anything by the couple but agreed because she felt sorry for them and wished to help. Her understanding was that the child would live with her but spend periods of time with F and W in England.
F’s case was that the arrangement had been for the child to be brought up by him and W and that they had offered M £2,000, which she accepted. He had discovered that an arrangement to conceive a child by artificial insemination would be illegal in Germany and it was therefore agreed that the child would be conceived naturally.
The case was heard Mrs Justice Pauffley at the High Court, who described the arrangement between M and the couple as “quite extraordinary”.
Deirdre Fottrell QC, instructed by Creighton & Partners, argued that M had rights of custody for the child under German law and that the child was habitually resident in Germany at the time of his removal. M had agreed to have a child for the couple but had not received any payment and had been deceived about the nature of the arrangement. M said that the couple had taken advantage of her because she is “poor and illiterate”.
On behalf of F, it was said that the arrangement from the outset was that the child would live with him and W in England, but spend holidays with M. F stated that the intention was that they would have remained friends and that it would be a “lifetime arrangement”.
In her Judgment, Mrs Justice Pauffley stated “I am in no doubt. The arrangement between the parties was for the child born to the mother to be brought up in England by his father and [his father’s wife].
Common sense dictates that when a woman agrees to give birth to a child for another childless woman and her husband, the strong probability is that the child will be raised primarily by the childless couple.
The notion that the father and his wife would agree to proceed on the basis that the child would be brought up abroad with only occasional holiday contact seems both illogical and implausible.”
Pauffley J found the evidence of F and W to be “infinitely more credible” than that of M.