SD23P20230/SD15/25 - [2025] EWHC 2960 (Fam)

I have two bundles to assist me. I have read them both.

Within the main bundle there is a statement from Mr Z who is employed by CAFCASS. He is a Parental Order reporter but not the reporter in this case. He recalls a post on a social media surrogacy site from Ms T the purport of which was that she had had sexual intercourse with her boyfriend the same day or very soon after she had inseminated herself with the sperm of the intended parent. Within the post she said she had become pregnant soon afterwards after a protracted period of no success. Mr Z cannot recall the date of the post but did recall a jocular comment to the effect that having sex after seemed to push all the swimmers up further to where they needed to be. Mr Z was aware that Ms T was a surrogate involved in Parental Order application which was already in train and brought the information to the attention of his manager. Mr Z was not required to attend for cross-examination by any party. In a subsequent statement from Mr and Mrs P there is exhibited a screenshot which appears to me to be either the post Mr Z speaks of in his statement or very similar thereto. It is a screenshot of a message on a social media page posted by Ms T.

I also have before me the report of Prof Denise Syndercombe Court, Professor of Genetics at King’s College, London, which is dated 29 May 2025. The report concerned the assessment of a biological relationship between Mr P and J; two DNA tests having provided conflicting results. She highlighted that there was insufficient information to say with sufficient confidence whether the NorthGene report or the AlphaBiolabs report was correct. The DNA from the paternal grandmother, who says she took J’s swab and with whom Mr P shares 50% of his DNA, could account for the NorthGene report. An independent test, ideally including the biological mother of J and/or the biological mother of Mr P could, she says, assist the court in providing a result that can be relied upon.

Prof Denise Syndercombe Court provided the court with a second report dated 21 July 2025. Within that report she stated that that the DNA profile of Mr P in the NorthGene report and the AlphaBiolabs report was identical but that of J was not. The DNA profile presented in the maternity profile is identical to that provided by AlphaBiolabs in all areas where tests were in common. Confirmation of J’s DNA profile therefore indicates that the conclusion provided by Alpha Biolabs that excluded Mr P as J’s biological father was the correct one. The DNA results provided in the NorthGene report were fully consistent with a first degree relative of Mr P and could there have been provided from samples originating from Mr P’s mother or any biological daughter of his, other than J.

Ms T has filed three statements. In addition, as I have referred to in the chronology above, I have before me emails from her. Ms T also gave oral evidence before me. In chief, she told me that her only motivation had been to help Mr and Mrs P have a family. She considered, on reflection, that she had over-shared her private life with Mr and Mrs P. She had viewed them as old friends, but she considered that had been to her detriment. That was a reference to what Mr and Mrs P have told this court about Ms T and the contact she had with men and her attraction to men of African and Caribbean heritage. When cross-examined by Ms MacLynn KC on behalf of Mr and Mrs P she was taken to messages about her sexual relationships which she considered were now being over-interpreted. They did not, she said, evidence that she had had penetrative sexual intercourse with a man at the relevant time. Sex was, according to her, an umbrella term, which did not of necessity mean penile sexual intercourse. References to jiggy jiggy was to a slang term for sexual acts in general not penile sexual intercourse. When asked about the reference to sex pushing up the semen to where it needed to be, Ms T told me that that was a reference to orgasm not penile penetration. She told me when cross-examined by Ms Troy for the local authority that she did not know who J’s father was. Initially she told me that she kept a diarised log of all her sexual contacts for gynaecological reasons. Later in her evidence she said she would need to look at the diary for the men she was involved with at the time but denied having penile penetrative sexual intercourse with them at the time of conception. Ms T had ample opportunity to produce her diary before the hearing in September but did not do so. Later in cross-examination she told me that she could not find the diary for 2022. She was asked why she had not mentioned until her final statement that she considered that Mr and Mrs P had introduced third party sperm was the only explanation for the DNA results. She told me that she had not thought of that before. For her it was the only logical explanation. She had not explicitly mentioned it sooner because she said she did not wish to bring the applicants into disrepute.

In her oral evidence Ms T was self-confident throughout and arrogant on occasion. She is obviously an intelligent woman who is sexually liberated and assured. She had her narrative, and she stuck to it in the witness box. I do not consider she told me the whole truth. I find that the messages that she was taken to in cross-examination do establish that she was had penetrative penile sexual intercourse with a third party at the relevant time. Her attempts to get around the plain meaning of the messages were not credible. I have, in this context been rightly reminded of a text Ms T sent to Mrs P after a visit to the doctor in February 2022: ‘… Plus she said that sometimes the sperm don't always get up high enough using a syringe because it's not "propelled" like sex if you get the idea lol ??’. Her evidence that she did not consider it relevant to mention explicitly that she considered that Mr and Mrs P had used a third party donor until her last statement again was not credible. Ms T has known of the steps in these proceedings and the Parental Order proceedings that have gone before. She has known for a considerable period that the DNA result confirming Mr P as the father was a false result. She had every incentive to mention her theory before. Ms T had implied it before but did not explicitly state it until her August 2025 statement. I find that she raised the inference and later mentioned her theory to deflect any blame from her. Her motivation was self-interest not the protection of Mr and Mrs P and their reputation. In cross-examination, Ms T was asked to name those with whom she was having sexual intercourse at the time J was conceived. Her answers as to who and how many men she was seeing at the relevant time varied, but one thing remained constant, her refusal to name anyone. Thus, she failed to put J’s interests first as she failed to reveal a route to discovering J’s paternal origins and anything about their father which would assist their future welfare e.g. health issues. Ultimately, I found that Ms T’s evidence was self-centred. Her answers were given to protect herself and not help the court.

I have evidence from both Mr and Mrs P. They, in their recent statements to this court and the Practice Direction document filed on their behalf, have expressed their sincere remorse that they had not told the truth sooner. They apologise to the court and ask me to accept their evidence.

Mr P gave oral evidence. He told me that when J was born their skin was paler and he believed J was his biological child. Any doubts he had pre-birth went from his mind. He was aware the NorthGene report had been edited but that was to do with finances and being unable to afford the court approved reports. He told Ms Troy in cross-examination on behalf of the local authority that he had been in the same room as his mother when he had done his swab. He described to me where J was sat on his mother’s lap and where he was. The room was a small room. He told me that his mother had told him in June 2025 that she had given her sample to be tested. He claimed not to have seen his mother take her own swab. However, I reject his evidence on that point. On his own account, he read out instructions to his mother before they took the swabs. The swabs were being taken to provide evidence for a report needed for the Parental Order. J was Mr P’s first child, and I find it is it is highly unlikely that he would not have watched her having a swab taken, if that was what had happened. When I asked him about observing his mother take her sample, he told me he had seen shapes and movements. He was concentrating on his own swab. Later in cross-examination by Ms Segal KC he was asked why he had been prepared to blame NorthGene for the erroneous result. He said because he did not know about his mother taking the sample from herself rather than J. I find his answers incredulous. Mr P was in a small room with J sat on his mother’s lap. They had a common purpose to take swabs for the DNA test by NorthGene and had chosen to do it at the same time, in the same place. He did not see shapes and movements. I find he saw his mother take the test rather than J.

Mr P told me when cross-examined by Ms Segal KC that he had deleted his messages with Ms T. His wife, he said, kept him updated. Mr P was asked about the Fertility Clinic. Ms T had frozen her eggs and created an embryo. He attended the clinic. Once with Ms T and once on his own. He accepted he had had to tell the clinic it was not for surrogacy. He had said in a message to which he was taken that he did not have to lie too much. It was, he said, a means to an end. Ms T wanted it and they; Mr and Mrs P were sucked up. I find that the lies told to the Fertility Clinic are a marker of Mr and Mrs P’s desperation for a family but also their preparedness to lie to professionals get what they wanted.

Mr P told me that they had used the NorthGene report for financial reasons and doctored it because they just wanted to get on with their lives. I reject that evidence.

Mrs P gave evidence before me. She was heavily pregnant and anxious. Mrs P admitted in cross-examination that she doubted paternity at the point the Parental Order application was made. She denied knowing anything about the paternal grandmother using a swab from her own cheek rather than one from J’s to send as a sample to NorthGene. I do not consider that Mrs P has told this court the whole truth.

The paternal grandmother gave evidence. In chief she told me that her first statement contained some untruths. In cross-examination on behalf of the local authority by Ms Troy, the grandmother told me that there had been no discussion about her taking the swab for the DNA test herself before she took the swab and that it was not a pre-meditated act - I did it on the spur of the moment. As she was pushed in cross-examination, her evidence about why she took a swab from her own cheek became non-sensical. She told me for instance that she did not know that the test would come back with Mr P as the father and thought it would come back as hers. If that were so, then why would she do it. I find that the grandmother was prepared to tell the truth about taking a swab from her own mouth and passing it off as a swab from J but that she still did not tell me the whole truth. I find that she was still protecting Mr and Mrs P and their part in the swab from the paternal grandmother being passed as the swab from J.

When asked a simple question by me, the paternal grandmother gave heartfelt evidence. She told me how she had funded the surrogacy arrangement as best as she could and how members of the family had also made financial contributions. I brought home to me that to this family, as to many others, £16,000 was a considerable part of their life savings. The paternal grandmother told me that she had helped because she knew how desperately Mr and Mrs P wanted children and, I paraphrase, she could empathise because she too had lost a child to adoption and suffered many miscarriages. In that moment, her vulnerability was apparent as was the overwhelming desire to help Mr and Mrs P have the family they craved.