Modern Families: Case-law update

Surrogacy

Re H (Anonymous surrogacy) [2025] EWFC 366 

Here, the court emphasised the perils of anonymous surrogacy. The intended parents, B and C, were British citizens of Nigerian origin. The child was born in Nigeria, and the IPs applied for a passport (prior to a parental order being made) – the Home Office refused the application because the surrogate’s written consent could not be obtained.

The issue was whether the court could dispense with the surrogate’s consent on the grounds she could not be found.

Theis J concluded that all reasonable steps had been taken to locate the surrogate who had signed a witnessed agreement relinquishing her parental rights. Theis J’s warning emphasises the importance of intended parents complying with the requirement to provide evidence to the court that the surrogate has consented freely to the making of a parental order.

B v D [2025] EWFC 366 

In this case the surrogate wanted to remain anonymous, and the surrogacy clinic was not forthcoming in providing her details.

There are two limited statutory exceptions where the court can dispense with consent under s54(7): i) where the surrogate is incapable of giving agreement, or ii) where the surrogate cannot be found. Theis J made the parental order on the basis they could not find the surrogate as per s54(7) HFEA 2008.

The court gave a stern warning that intended parents must proceed with caution when engaging in surrogacy arrangements and in particular take steps to ensure they meet and are able to contact the surrogate, especially if they are aware of concerns the court might be less inclined to decide the surrogate cannot be found and make a parental order under s54.

A&B v C&D [2026] EWHC 972 (Fam)

This case was before Williams J and concerned no fewer than nine cases. It is a lengthy judgment spanning just over 60 pages. It is a must-read for anyone new to surrogacy to understand the basics. The court rearticulated the basic principles the court should consider when approaching a parental order application.

The key issue was how the court should balance approving payments made in commercial surrogacy arrangements with protecting the child’s welfare.

Williams J concluded that since the authorisation decision is governed by the paramount welfare assessment, pure public policy issues cannot be weighed against the child’s welfare.

The court identified three types of parental order application

• where due diligence was undertaken prior to embarking on the process and they meet the criteria with little difficulty
• where they undertake due diligence but might not easily meet one of the criteria (eg domicile)
• where no due diligence has been undertaken and as a consequence there is an issue as to whether they meet the criteria

Finally, Williams J observes that the extent to which s54 has been read down has radically transformed the statute, eg a parental order has been made in respect of an adult child (ie well after six months post-birth). Also, the statute refers to “husband and wife”, but that now, following a case, also includes “husband and husband” and “wife and wife”. 

The problem as Williams J sees it, is that to the public, they may think they don’t meet the criteria when in fact they might – which he concludes is an unsatisfactory position in terms of access to law.

Cator & ors v Thynn Marquess of Bath & anor [2026] EWHC 1045 (Ch)

This is an interesting case that, although heard in the Chancery Division, is relevant to family law practitioners in the private client context in terms of highlighting how an intended beneficiary could be at risk of being excluded from certain trusts due to their structure.

In that case, Thynn, the 8th Marquess of Bath and owner of the Longleat Estate, sought approval to amend the family trusts to include his second son, Henry, as a potential beneficiary. Henry, born via a surrogate in the US, faced exclusion under the trust’s outdated provisions that relied on pre-1970 definitions of legitimacy. These definitions predate advancements in fertility treatments, surrogacy and modern family structures, so could be seen as outdated.

The court found that the power of advancement could be used to ensure that the surrogate son could be a beneficiary of the trust. It shows that hopefully trust law is catching up with modern family arrangements, but should be an important reminder for those working with trusts that they should review trust documents to ensure that there are no unnecessary exclusions, and also account for the change in family dynamics in the future.

Adoption

Re J (A child) (Surrogacy: Adoption Order) [2025] EWHC 2960

Henke J stressed that this case was a cautionary tale of “what can go wrong when strangers who meet through social media to bring a child into this world through surrogacy and when one or more of the parties take risks around the circumstances of conception”.

The child, J, was born in E&W following a private surrogacy arrangement. Post-insemination the surrogate had sexual intercourse with another man. As it was a domestic surrogacy, the purported intended father was named as father on the birth certificate. An application was made for a parental order. DNA testing was undertaken which established that the intended father was not the biological father. The surrogate agreed to an adoption order or parental order but refused to disclose the identity of the biological father.

The court granted the adoption order. The surrogate had given her free and unconditional consent to the adoption, and as J’s biological father could not be identified, he could not be notified.

However, Henke J concluded the judgment by highlighting that the subterfuge, lies and deception in the case had delayed it for over two years.

EB v RB [2026] EWHC 97 (Fam)

Unusually, all the parties in this case were aligned in terms of their position and supported the applicant, who was the now-adult-child’s stepfather.

The stepfather had obtained a step-parent adoption order in another country which the family split their time between along with the UK. But that adoption order was not recognised in the UK.

The case concerned the application of s83 of the Adoption and Children Act 2002 (ACA 2002). This section is designed to prevent British adults from travelling abroad and either returning with a child for adoption here or undergoing adoption abroad and then seeking to return with the child to live here. The point is to stop child trafficking and wealthy westerners effectively “buying” children abroad. In doing so, there are a number of requirements under s83 to allow adoption where the adult is habitually resident in the UK and the child has been brought from another country.

MacDonald J held that s83(1)(a) was not breached as the stepfather did not bring the child to the UK with the intention of seeking a domestic adoption. The step-parent had thought that the adoption in country X was valid here.

In relation to s83(1)(b) it was held that the intention of Parliament was not to prevent situations like this case, which would result in significant consequences for the stepfather in this case who had raised the child for over 10 years. It highlights the purpose of the section is to prevent exploitative circumstances such as child trafficking.

DD v AF [2026] EWHC 247 (Fam)

This was an adoption case before MacDonald J about a 17-year-old girl, “F”, born in Nigeria. The applicant maintained she had adopted the 17-year-old lawfully in Nigeria. Among other things, the applicant maintained that F’s mother had died.

The court required to see a number of documents that revealed concerns for the court:

• three different birth certificates were produced, containing conflicting information
• uncertainty surrounding the mother’s death

The court looked at s83 of the ACA 2002, which as we saw above deals with restrictions on bringing a child to the jurisdiction. The local authority opposed the application on the basis that the applicant was not suitable to adopt.

The court found the Nigerian documentation so unreliable that it could not be satisfied that F’s mother was deceased, or that the applicant had lawfully adopted F in Nigeria. The applicant’s evidence was unconvincing, and her credibility was undermined by inconsistent statements and evasive responses.

MacDonald J held that refusing the adoption order was a justified and proportionate interference with Article 8 rights, lawful, and aimed at preventing adoption contrary to public policy and the child’s best interests. Accordingly, the court dismissed the application for an adoption order.

Re X (Children) (Adoption Order: Setting aside) [2026] UKSC 13

This Supreme Court decision held that adoption orders cannot be revoked on welfare grounds alone. It highlights the importance placed on permanency of adoption. This case was unusual because the adoptive parents and birth parents were aligned in their position – seeking that the adoption order be revoked as the children who were the subjects of the adoption orders wished to return to their birth mother and that was agreed by the parties. Even though the parties were in agreement, the Supreme Court upheld the Court of Appeal (and the High Court) that an adoption order could not be revoked on those grounds as to do so would undermine the permanency afforded by adoption.

Declarations of parentage

Re J, Re M, Re P (Loss of parental responsibility) [2026] EWCA Civ 344

The court heard three separate appeals relating to the attribution of parental responsibility (PR) and the status of “father”. The first two appeals concerned the status of an individual who had been registered as “father” on the birth register, and later, this record was challenged.

The third appeal arose from circumstances where DNA testing established that the biological child was one of two identical twins (TP1 and TP2), but it was impossible to say which. In those circumstances, TP2 had applied for a declaration of parentage to be recognised on the child’s birth certificate.

The court dismissed the first two appeals, holding that the definition of “father” was limited to common law meaning. So, if a man is named on a birth certificate and it transpires that he is not the biological father, he is not the father and never had PR.

The second aspect of the appeal concerned the twins in Re P. The Court of Appeal was unable to declare that TP1 was not the child’s father; as such, no declaration of non-parentage could be made, as it would not be sufficiently safe to remove TP1 from the birth certificate. Therefore, TP1 remained registered on the birth certificate.

McFarlane P highlighted some of the issues that may occur where an individual who has held the status of social father later finds out they are not a legal parent and has no PR, and the risk that their lack of status could be exploited (eg the risk of abduction).

Re N (Paternity: Unregulated sperm donor) [2026] EWHC 878 (Fam)

A same-sex female couple used the sperm of an unregulated donor who claimed to have fathered over 180 children worldwide. He received payment in the form of vouchers and money. EF became pregnant. Her partner later transitioned and identified as male. Post-birth EF’s now male partner registered as the father.

There had been no agreement that the donor would have any role in the child’s life.

The donor applied for declaration of parentage and a child arrangements order, but later abandoned application.

Two earlier High Court judgments detailed the donor’s conduct which the court adopted.

The court did not find that it would not be in the child’s best interest to hear the application but that it was manifestly contrary to public policy to make the declaration.