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- Why are the gay male couple (who could afford a barrister) allowed to take away a mother's baby (she had no legal representation)
- this is outreageous treatment of mothers whether we're straight or queer!
Stop gagging mothers. Defend children’s fundamental right to a mother’s love and care. Write to the Family Court now.
On 30 April 2015, family court judge Ms Justice Russell ordered that a 15-month baby girl be taken from her mother and given to her father and his male partner. (Ruling and comments below.) The child was thriving and there was no reason to remove her except that the men claimed they had a surrogacy-type arrangement with the mother, which she denied. The mother said that both she and the father wanted a child: she would be the main carer for the child, and the father (who donated the sperm) would be involved in her care.
The baby had been with her mother since birth and was breastfeeding on demand; the father had substantial access which could have continued. Instead the gay couple was judged better for the child’s “identity” than her own mother, despite the harm caused by separation.
The judge’s sexism is extreme: the father and his partner are believed without question while the mother is disparaged for breastfeeding on demand, her bond with the child described as “stifling”, and she is criticised for having delayed getting a job. The disparity in wealth is stark: the men have top legal representation throughout while the mother is mainly unrepresented as legal aid has been cut. A gagging order has been imposed on the mother preventing her from seeking help from other women and other experts.
LBGTQ mothers and fathers have fought to be recognised as carers, and we are appalled that it is a gay couple who has sought to destroy the relationship between mother and child. To take a breastfeeding child from her mother is cruel and sadistic, and causes life-long trauma. To treat a non-consenting mother as a mere surrogate for men (gay or straight) is deeply sexist and brings back pater familias – men in charge of women and children. We urge you to support this mother and her child by writing to: (write and protest to the judge and send Queer Strike a copy)
Sir James Munby,
President of the Family Division, Head of Family Justice
Royal Courts of Justice
London WC2 A2LL
E-mail: firstname.lastname@example.org Comments on the judge’s ruling
In an unprecedented attack on mothers and children which is being widely interpreted in the media as a surrogacy case, a 15-month-old breastfeeding baby has been wrenched from her mother and given to her father and his male partner. As women’s and LBGTQ organisations we strongly object to children being separated from mothers who love and care for them. Ms Justice Russell dismissed the damage this would cause the child: “she is very young and will settle quickly.” This flies in the face of all evidence.
No child attachment specialist was even consulted: the expert put forward by the mother was dismissed as not having the right qualifications and no other expert was sought as the judge decided that the recommendations of the court appointed child guardian were sufficient.
There is no reason to separate this child from her mother – she has come to no harm under her loving care. Yet an application from the father and his partner who claim there was a surrogacy-type arrangement with the mother and that the child should live with them, has succeeded in her being denied her mother’s care.
According to the law there can be no surrogacy arrangement without the mother’s consent, and the judge admits that “It is not the function of the court to decide on the nature of the agreement between [the two men] and [the mother] and then either enforce it or put it in place.” Yet she decides that the mother “deluded herself about the nature of the agreement she was reaching with [them]”, and that “the pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend”, rather than as the mother contends an agreement between her and the father where she remained the main carer.
On the welfare of the child, she admits that the separation “is bound to affect her, likely to upset and distress her in the short term at least and [that it] necessarily amounts to a change in circumstances”, that “she would miss her mother with whom she has spent most of her time” and that if she could express herself, she would “want to continue to remain with [her mother]” while spending time with her father”. But the child’s “sense of identity” and “where she fits into the world” as the daughter of a gay father and his partner, is considered more important to her welfare than her attachment to her mother. And while the men are commended for their “child centred approach”, the mother, who understandably has a negative view of their application to take the child from her, is accused of being anti-gay, “duplicitous and manipulative”. Yet the mother has had a decade-long friendship with the gay father and agreed to have a child with him – all she wants is to remain that child’s main carer. This is her crime for which she and the child are being punished.
The judge questions the long term effect of “the attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breastfed on demand throughout the day and night”. According to the judge this amounts to a “potential enmeshment and stifling attachment”. Yet according to the World Health Organisation, UNICEF, NHS and pediatric associations worldwide which recommend breastfeeding on demand until the child is at least two, she, like millions of mothers around the world, was giving her child the best start in life.
The judge blames the mother for “not set[ting] out any timetable for returning to work”, and says that “it is he [the wealthier father] who can help [the child] to reach her greatest potential”. Money talks louder than care in child custody. Is that the best interest of the child?
While the men had top lawyers throughout, the mother was mostly unrepresented as legal aid for private family cases has been cut. Not surprisingly, given her lack of support and legal representation, the court appointed child’s guardian decided against her from very early on. Not only did she recommend that the child live with the father and his partner, but that she sees her mother only once a month and under supervision – much more draconian than what the father had asked. The judge has gone along with minimal contact so “there is no confusion in the child’s mind about who are her main carers”. Yet the father had enjoyed contact on six days, and later to two overnights.
In our experience this is what many mothers face. Thousands are losing their children to wealthier fathers or social services in secretive court hearings where they stand at a clear financial and social disadvantage.
The mother is asking for leave to appeal Ms Justice Russell’s decision but a gagging order has been imposed on her, preventing her from seeking help from other women and other experts. The gagging order is not in the public’s interest and should be lifted. How can we know what is happening to children and their primary carers, when proceedings are secret and those affected are not allowed to talk about them? Justice Munby, president of the family courts, has said that there was a “pressing need” for the workings of the courts to be open to public scrutiny and accountability, that parents must be given the freedom to criticise courts, judges and social workers, and that the break-up of families by the state must no longer be held in secret. This case is a classic example of the crying need for open justice.