There has been considerable interest online and elsewhere recently about the case H v S. For those unfamiliar with the case it concerned the dispute between a woman, S, and the child she carried on behalf of two gay men, H and B, in a surrogacy agreement. The court decided to give the child to the men.
Some of the commentary on the case has been extraordinary; here, for example, is Christopher Booker writing in the Telegraph,
What satirist even 20 years ago would have dared to invent the picture of modern England conjured up by the case blazoned over one newspaper’s front page on election day (with two more inside), under the headline “Gagging of mother forced to hand baby to gay dad”?
Booker, who appears to have derived all he knows about the case from the Daily Mail article, focuses on the fact that the judge, Alison Russell,
is a childless feminist who was the first female judge to insist on being addressed not as “Mrs Justice” but as “Ms” Justice Russell.
How should the facts that Russell is ‘childless’ or a feminist have any bearing whatsoever on the case? Booker’s clear implication is that the judge is herself a lesbian (she isn’t), and has decided the case purely on the basis that she has sided with what he imagines to be her own kind. Booker continues, ‘As her judgment shows, she clearly took against the mother’. In fact, the judgement, which can be read on Bailii, shows nothing of the sort; if it did, such unprofessionalism and chauvinism would terminate a career. This is the very worst sort of gutter journalism.
What the judgement does reveal is a pretty run-of-the-mill residence dispute between two parents – Booker glosses over the fact that one of the two gay men is actually the child’s father. The surrogacy agreement had no bearing on the case, and Russell decided it purely on the basis of the child’s best interest. The mother had been dishonest, had refused to comply with court orders and had blocked contact between the child and her father. She had conducted an online campaign against the father and made false allegations against him. The father was more likely to provide a stable home and more likely to allow contact – which must be supervised – with the other parent.
Across the Irish Sea in the Sunday Independent John Waters has interpreted the case as an example of social engineering in which parenthood is dispensed by the state “in the manner of fuel vouchers”. Waters may well be correct that had the father been straight residence would not have been transferred (and it certainly would not have been transferred so swiftly). Nevertheless, I believe his main point is wrong: Russell is not an agent of the state and is not carrying out any government’s policy. A reading of Russell’s judgement – and I don’t believe that either Booker or Waters has read the judgement – will show that Russell decided the case purely on the best interests principle and that a different decision would not have been consistent with this.
The case is, in other words, a straightforward transfer of residence from an obstructive mother to a father. The only remarkable thing about it is that Russell has transferred residence so soon in the case – most such transfers tend to take place only after a decade of fruitless litigation. Perhaps it will encourage more judges to act more decisively and prevent such cases from becoming mired in delay and growing ever more entrenched.