![SD23P20230/SD15/25 - [2025] EWHC 2960 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Introduction
I am concerned for the life-long welfare of a child I shall refer to within this judgment as J. J is the second respondent in the proceedings before me and is represented by their Guardian. They are now 2 ½ years old.
The application before me is an application for an adoption order. The applicants, for the purposes of his judgment are referred to as Mr and Mrs P. Mr P is now 41 years old, and Mrs P is 38 years old.
Mr and Mrs P met in 2015 and began to cohabit in 2017. They married in August 2019. Mr and Mrs P very much wanted children. They began to try for a family in 2018.
In 2021, Mr and Mrs P met the first respondent, who I shall refer to as Ms T, in a Facebook group for surrogacy. Subsequently Ms T agreed to be a surrogate for Mr and Mrs P. Ms T was not the first surrogate they had approached, and they were grateful that she agreed to be a surrogate for them.
On 25 June 2021 Mr and Mrs P and Ms T entered into a surrogacy agreement. Ms T agreed, amongst other clauses, that she would not consider the child born of the arrangement as her child and that the intended child would reside with the intended parents, Mr and Mrs P. Clause 8.1 of the agreement stated that:
The surrogate must abstain from sexual intercourse from time of agreement until pregnancy is confirmed. Dates to be agreed depending on transfer dates.
It was agreed that Mr and Mrs P would pay Ms T pregnancy expenses of £16,000. Payments were to be made on the first day of the month after the 8-12 week scan.
By August 2021, the applicants and Ms T had started trying to conceive by home insemination, using Mr P’s sperm and a syringe to inseminate Ms T.
Between August 2021 and end of May 2022, there were eight attempts at conception, each of which failed.
On 8 December 2021 an analysis of Mr P’s semen returned a normal range.
Throughout March, April, May 2022 (and into August 2023) the parties were discussing and liaising with a fertility clinic regarding egg and sperm collection, for embryo creation with Ms T. The clinic was not told that Ms T was going to act as a surrogate. All their paperwork shows Mr P as a sperm donor and Ms T as single parent. Ms T was not only preserving her own eggs; she was creating embryos for Mr and Mrs P to use in the future.
On 31 May 2022, Ms T told the applicants that she was ovulating and asked them if they wanted to try again. They did.
Ms T inseminated herself. It is the applicant’s case that just after insemination, Ms T had penetrative sexual intercourse without a condom with a third-party male.
On 16 June 2022, Ms T told Mr and Mrs P that she was pregnant.
On 7 December 2022 the applicants attended a 4D scan. This, they say, was the first time they questioned the child’s paternity. They asked Ms T to undertake a DNA test. She did but provided insufficient sample to determine the issue and refused to take a second test. By this stage Mr P’s mother stated she would not help financially unless she knew J s paternity for certain. The sample from Ms T was insufficient. It is common ground that Ms T refused to give a second sample.
J was born in February 2023. Mr and Mrs P were present at their birth. On discharge from hospital, J went to live with Mr and Mrs P where they remain. They are a most wanted and loved child. J may read this judgment when they are older. J should know that she was born into love and is a product of love.
On 22 February 2023 J’s birth was registered. Mr P was named as J’s father on the birth certificate.
On 29 May 2023 the applicants applied for a Parental Order. Mr P was named as J’s biological father According to the applicants’ statement by this time, the paternal grandmother had begun to express doubts about J’s paternity. The applicants say that they had noted J’s skin darkening but preferred to consider that reflected Mr P’s olive skin than doubt J’s paternity.
On 9 June 2023 Ms T signed the Acknowledgement of Service and consented to a Parental Order being made.
In July 2023 Mrs P conceived a child naturally. K was born in April 2024.
On 11 July 2023 the Parental Order Reporter advised the applicants during a video call that a DNA test would be required to establish paternity and provided a list of providers.
The applicants chose a “Peace of Mind” test from NorthGene. The Peace of Mind report was not on the list of approved reports for court purposes.
On 26 July 2023 NorthGene, the “Peace of Mind” provider, reported. The report stated that there was a greater than 99.999% probability that Mr P was J’s biological father. The report specifically stated that it was not to be used for legal purposes.
On 31 July 2023, the Parental Order Reporter met with the Applicants and J.
On 7 September2023 the Parental Order Report was filed. There were no concerns about the welfare of J who by then was 6 months old. The Reporter had sight of the DNA certificate from NorthGene. The version of the report the reporter had sight of omitted the wording “Peace of Mind” and that “This Report can NOT be used for legal purposes” although I note from paragraph 11 of the report that the reporter was aware that it was a Peace of Mind report. At paragraph 26 of the report, it says this:
Unfortunately the Applicants chose the peace of mind test rather than a court approved professionally verified test. This subsequently has been addressed with the Applicants, who have against guidance, chosen not to complete court-approved testing, citing they are unable to fund it.
The Parental reporter recommended a short adjournment allowing the results of a court approved DNA test being submitted, using third party collection of samples which would evidence without any doubt that J is Mr P’s biological daughter.
On 12 September 2023 the application for the Parental Order came before the Lay Justices. The Reporter confirmed at that hearing that all the requirements of section 54 HFEA 2008 were met with the exception that it needed to be proved that J was Mr P’s biological child. The Reporter confirmed that a court approved DNA test would be needed to satisfy the requirement. It is noted on the face of the order that the applicants expressed concern about funding a DNA test. Consequently, the court ordered that the DNA test be paid for by CAFCASS or if that were not possible, to be arranged by the applicant. The order clearly stated that samples would be needed from Mr P and J.
By January 2024, the DNA test ordered by the Lay Justices had not taken place.
The application for a Parental Order next came before a Deputy District Judge in the Family Court on 23 January 2024. The order recites that Mrs P was pregnant and that the applicants wished to withdraw their application for a Parental Order and proceed via an adoption application later. The court was told on that occasion that the applicants have significant debts which they owe from the surrogacy in the region of £20,000 and that they cannot borrow more money for a court-approved DNA test. It was recited on the face of the order that there remained a reluctance to provide a DNA sample, and the stress of the continuing proceedings was impacting on the applicants. However, the court did not have a formal application to withdraw before it and did not have evidence in the form of witness statements encompassing the new information provided at the hearing. Accordingly, the court declined to permit the application to be withdrawn, and relevant case management directions were given.
On 5 June 2024 the applicants formally applied to withdraw their application for a Parental Order. At that time, they stated that they no longer believed that Mr P is J’s biological father. Mr P was willing to engage in DNA testing to ensure clarity given the previous positive result. By this time Mr and Mrs P were stating that Ms T had had a history of relationships with black men and had had a sexual relationship with male during the time they were trying to conceive J.
On 13 June 2024 the Parental Order updating report was filed.
The application to withdraw came before a Circuit Judge in the Family Court on 27 June 2024. J was joined as a party and a rule 16(4) Guardian was appointed for them. The Guardian appointed was the Parental Reporter. At that hearing directions were given for court approved DNA testing to take place. Further case management directions were given including that Ms T was to be given notice of the proceedings.
On 1 July 2024 Ms T confirmed that she would not be attending court and would be happy for an order to be made in her absence.
The applicants filed a statement in July 2024. Within it they stated that ‘during the first few months of J’s life we began to notice their skin darkening. We had comments made by others. We agreed that they appeared mixed race but still did not question this given the recent DNA results. When K was born, the applicants report noticing a big difference in the children’s complexion. They state: ‘We were aware that Ms T only dated men of black African or Caribbean ethnicity and became concerned. We raised this in a telephone conversation with Ms T. She confirmed she had a sexual relationship with a man during the period in which we were trying to conceive. Ms T explained this was around the time of our last home inseminations, in June 2022. Ms T has never told us who this man is’. The applicants report that they were no longer on speaking terms with Ms T and that she did not apologise for the situation. Instead, Ms T said that they should be grateful as the fact they are parents was down to her.
On 15 July 2024 the report from AlphaBiolabs, the court appointed and approved DNA test reporter was received. The report states that 14 mismatches were observed between the alleged parent and child when no mismatches are expected between a true biological parent and child. Mr P was excluded as the biological parent of J.
On 25 July 2024 Ms T sent an email confirming that she consented to an application for an adoption order and parental order and stating she had no further comments to make on J’s biological parentage or any other matter.
On 26 July 2024 the application for adoption came before the Circuit Judge in the Family Court again. The order records that Ms T had been informed already of the outcome of the second DNA test and that the applicants intended to apply to adopt P. Ms T confirmed that she would consent to that adoption.
At the hearing on 26 July the applicants were granted leave to apply for an adoption order. In addition, the court granted the applicants leave to apply for a child arrangements order (live with) and ordered that J shall live with the applicants and that they shall have parental responsibility for J whilst that order remains in force. Upon issue of the adoption application, the parental order application was to be deemed withdrawn and the local authority was to become a party to the adoption application. Further case management directions were given.
On 7 December 2024 an Annex A report was filed. Ms T had very clearly told the reporter that she did not wish to provide any information in relation to J’s biological father. She outlined that was her right and she said she did not have any comment to add. The Annex A wholeheartedly recommended that J should be adopted by Mr and Mrs P. An adoption order was seen as a positive step. It was in the lifelong interests of J to enjoy a stable family life and increase her sense of belonging and identity with the only family unit she had experienced.
On 13 December 2024 the Family Court re-timetabled the application because the Annex A report had been delayed, and a redacted copy was not ready to be sent to the applicants.
The Guardian’s report was filed on 27 January 2025. The Guardian recommended adoption as being in the lifelong best interests of J. However, she also wrote ‘As part of these proceedings, the court asked the applicants to explain why they thought the initial DNA test produced a false positive showing paternity. The applicants submitted a statement as directed, within which they reiterate they completed the test as per the instructions and cannot explain why they received the incorrect result. The court may wish to pursue this discrepancy further by seeking an explanation from the laboratory if a serious error has been made by a reputable testing company which professionals need to be aware of. The company may wish to challenge the report made by the applicants as inevitably this assertion could lead to reputable damage’.
Within the Guardian’s report it is stated that Ms T had confirmed by email that she consented to an adoption order being made. Her stance is reiterated in an email she sent on 11 February 2025 which I have before me. It has not wavered since.
. The matter came before the same Circuit Judge on 27 February 2025. Despite the clear expectation of the Court on the previous occasion, an adoption application still had not been made. Accordingly, the court could not proceed substantively, and the matter was relisted. Permission was given to the child’s solicitor to share the DNA tests results from AlphaBiolabs with NorthGene. The child’s solicitor was directed to bring to the attention of NorthGene the difficulty that has arisen in relation to DNA testing in this case. The order recited that the child’s solicitor will suggest to NorthGene that they should not be offering “peace of mind” tests to those who need DNA proof for any court application.
The adoption application was finally made by the applicants on 27 February 2025. The application records Ms T’s consent to the adoption. On the face of the adoption application, Mr and Mrs P declared that we paid expenses to Mr T of £16,000 as we originally entered a surrogacy arrangement. We are seeking adoption with permission of the court after becoming ineligible for a parental order.
On 11 March 2025 the child’s solicitors emailed NorthGene and sent them the AlphaBiolabs report. Attached to the email was the Peace of Mind report supplied by the applicants to the court. There was an email in response from NorthGene. That email stated that “NorthGene do not offer “Peace of Mind” testing for Legal Purposes. According to the email this is made very clear at every stage of the test ordering, sample submission and test consenting process. Please could you confirm who amended the NorthGene Peace of Mind DNA test Report that you have sent to us? […] From a cursory inspection of the AlphaBiolabs report it would appear that the STR profile of the Putative father generated by them matches the STR profile generated by NorthGene. However, it is clear that the STR profile of the Sample proffered as the child’s is different and must have been provided by a different donor”
On 20 March 2025, on the papers and having considered an email from NorthGene dated 11 March 2025, the court directed NorthGene to provide to the solicitor for the child the original report and a statement covering the points raised by NorthGene in their email. NorthGene were not made a party but were given permission to apply to set aside or vary the order.
On 24 March 2025 a statement from the CEO of Biofortuna Ltd (NorthGene is a trading name of Biofortuna) was filed. It stated that NorthGene make it clear in their Peace of Mind Testing Form, Terms, and Peace of Mind Reports that NorthGene’s “Peace of Mind” tests are not intended and should not be used for any legal purposes, including court proceedings. It also clarified that the Modified Report provided under cover of the child’s solicitor’s email of 11 March 2025 is materially different to the Original Peace of Mind Report. With refence to the AlphaBiolabs report, the CEO of NorthGene stated “The genotypes/alleles identified for each STR marker for IO by AlphaBiolabs are different from those identified by NorthGene. This indicates that the DNA sample purportedly from J supplied for testing to AlphaBiolabs was from a different individual to that supplied to NorthGene for testing’.
On 25 March 2025, the Circuit Judge, having considered the statement of NorthGene of 24 March 2025, transferred the application to me. On being advised by the child’s solicitor that the proceedings had been allocated to a High Court Judge and a hearing listed on 3 April together with documents ordered to be sent, Ms T stated: ‘Thank you for sending me the order of the court, and the statement that is referred to. I will not be attending the hearing on Thursday 3rd April 2025 as I have no objections or matters to raise. I am happy for the court to make a final order in my absence.’
On 2 April 2025 the solicitor for the child received an email from the applicants in the following terms:
‘Having just read through the attachments you sent regarding tomorrow’s hearing and discussing it with Mr P, we feel we understand more about what is being questioned. Regarding the amendment of the document from North Gene we have just remembered that we did at some point edit the document. We removed everything other than the result which we then shared with a few family members and possibly a friend. It is possible that when editing back to the original, we didn’t fully edit it back and some bits were still missing from it when we forwarded it to the Guardian/Parental reporter at CAFCASS. Neither of us are 100% certain this is the case because this was around 2 years ago now and the sheer amount of paperwork, emails, attachments etc that we have had to go through over these 2 years is somewhat clouding our memory. But this is the only explanation that we can offer for that at this point for that. ‘
On 3 April 2025the application came before me. I requested that the child’s solicitor write to NorthGene to advise them that:
An explanation has been given within the proceedings for the modification of the Peace of Mind test result that does not in any way implicate them in the same.
The court is seeking further information as to how a positive result was achieved from the Peace of Mind testing given the further testing undertaken disproving this positive result.
The court would be assisted by a statement from NorthGene as to the likelihood of that positive result arising from contamination in any part of the testing process to which NorthGene were responsible.
The court may at final hearing make findings as to how the positive result was achieved, which may, dependent on the evidence heard, include findings as to NorthGene’s role.
NorthGene may wish to make representations at any future hearing and the solicitor for the child shall notify them of the date for the next hearing.
At the hearing on 3 Apil 2025 I invited the parties to consider whether any other applications should be considered in this case, such as a declaration of non-parentage and a declaration that the local authority were not required to notify the paternal family of the adoption application. I also directed the applicants to file a further statement dealing with how the first NorthGene report came to falsely identify Mr P as J’s biological father, the history of their relationship with Ms T and when they first realised J was not a biological relation of Mr P.
Ms T served a statement dated 10 April 2025. She stated that she did not observe the sperm donations being deposited into the specimen containers prior to them being provided to her by the applicants. Thus, she implied but did not expressly assert that Mr and Mrs P might have provided a third party’s sample. Ms T also stated that there have been ‘no circumstances in which [she] told the applicants about J’s parentage’.
On 17 April 2025 a second statement was received by the court on behalf of NorthGene. The statement emphasised that the laboratory testing is the same whether the report is for legal purposes or not. It is only if the report is for legal purposes that a sample taker is used and a chain of custody established. Here they were reliant on the samples provided by the applicants. The statement includes the following:
The only way that NorthGene could have reported a paternity inclusion for J and the putative father is if the putative father provided a sample from a female first degree relative (such as his mother, another daughter, possibly his sister) or from his identical twin brother’s daughter and offered that sample to us as being donated by J. That s it.
On 26 June 2025 the local authority applied for a declaration that they be released from their requirement to notify the paternal family of J’s birth.
On 27 June 2025 the Guardian provided an updating report
The case returned before me on 1 July 2025. On that occasion, I made a declaration of non-parentage in relation to Mr P. I made that declaration with the agreement of Mr and Mrs P and with the support of the Guardian and the local authority. I did so because Mr P had been wrongly registered as J’s biological parent on their birth certificate and that certificate would need to be rectified. Further, at that hearing I declared that the local authority was not required to take any further steps in relation to the notification of J’s biological father or paternal family of the application for adoption. I made that declaration because Ms T had been repeatedly asked but had consistently failed to provide any information concerning the identity of J’ s biological father and because the court had no further information concerning the identity of J’s father and no other avenue by which to obtain it. I gave further case management directions and invited the paternal grandmother to intervene given the findings that might be made against her. I gave permission for maternity testing given the circumstances surrounding J’s birth appeared to me to be opaque and there was a need to establish a maternal biological link between J and Ms T.
On 4 July 2025 Ms T indicated by email to the child’s solicitor that she would not be attending any court hearings:
I have replied promptly to communications and cooperated with requests made for me to action. For example, I do not need to attend a court hearing in order to provide written statements or complete a DNA test. I am a full-time working professional with a busy schedule. Modern technology means that I can be communicated with via email and/or phone. This is sufficient in my opinion. Moreover, I do not believe that the court proceedings have been caused by myself. It was envisaged when the applicants and I signed our surrogacy agreement that they would attend a court hearing applying for a parental order, which I would not attend. The court proceedings for the applicants to obtain parental rights have always been viewed by me as a special time for them to legally be recognised as parents of their child. I have never viewed it to be appropriate for me as their surrogate to attend court hearings. My part in assisting them to have a family was completed upon birth of the child. Therefore, I am not prepared to make significant changes to my schedule and/or potentially lose earnings in order to attend court hearings in person. I have also stated previously that I am happy for orders to be made in my absence. Yes I am happy to provide a DNA test. Please send me instructions on how to complete this
Ms T filed a statement dated 15 July 2025. Within it she said this I am supportive of the applicants’ adoption application. I do not wish to oppose their application in any way. […] I abstained from sexual intercourse from the date of signing our surrogacy agreement (25.06.21) until pregnancy was confirmed… I did engage in various sexual acts, excluding sexual intercourse, from the date of signing our surrogacy agreement until pregnancy was confirmed. I engaged in various sexual acts with a variety of individuals, of various ethnicities. The applicants were aware of this.
On 20 July 2025, DNA maternity testing indicated with a high degree of certainty that Ms T is J’s biological mother.
On 23 July 2025 the case came before me again. The paternal grandmother was given permission to intervene. I gave further directions to facilitate the final hearing before me on 22 September 2025. During the hearing I indicated that I expected candour at the hearing before me in September.
On 4 August 2025 the paternal grandmother filed a statement admitting that she was the female DNA sample tested in July 2023 and asserting that her son had not seen her take the sample.
In her statement of 21 August 2025 Ms T stated - ‘I believe that the applicants provided me with a sperm sample belonging to a third party sperm donor rather than Mr P’ - ‘at no point did I inform the applicants that I had sexual intercourse using a coming, at no point did I say that I ‘felt this was a good idea to help ‘push up Mr P’s sperm..’ - I abstained from sexual intercourse during the timeframe specified in our surrogacy agreement. I am more than happy to provide telephone numbers for various individuals subject to me still having their contact details, for my abstinence to be verified and/or for these individuals to undertake DNA testing, if the court wishes for me to do so for specifically named individuals’