Russell, Justice Alison  Judges  Family Courts

Mother forced by judge to hand her baby to gay father wins the right to tell her story 


 24 October 2015

Speaking out: Justice Holman

A mother whose baby was removed on the orders of a judge and given to a gay couple has won the right to tell her story in a victory for free speech.

The woman was left devastated by the judge’s decision earlier this year – and was then banned from giving her side of the story by a draconian court order.

Justice Alison Russell ruled in April that the mother should not be allowed to keep her 15-month-old child after an alleged surrogacy deal she had struck with two gay men – one of whom is the biological father – broke down.

The judge declared that the mother was ‘homophobic’ and had tried to smear the gay father. She also accused the woman of breastfeeding her daughter in a way calculated to ‘frustrate’ contact between the child and her father.

But yesterday another High Court judge overturned the decision to gag the mother after she mounted a legal challenge – and described the order as ‘unusually restrictive’.

During the hearing, Justice James Holman appeared shocked by the severity of the order issued by Ms Justice Russell. 

As well as gagging the mother, she had also ruled that the Press could not identify the mother or her child or report anything other than her judgment.

However, Mr Justice Holman stressed the need for a free Press and free expression, calling it ‘a very precious right and one I personally protect very, very zealously’. 

He said: ‘We live in a free democracy and the cornerstone of a free democracy is the freedom of the Press, and if the Press can’t report what’s going on, we have all had it.’

Mr Justice Holman decided that the mother could tell her story and that the Daily Mail could report it – providing no one involved in the case is identified – in a ruling set to be signed off on Monday.

The incredible scope of Ms Justice Russell’s original order meant the mother could not to talk to anyone about the case – effectively banning her from telling a neighbour over the fence or even instructing her own legal team on the issues.

Mr Justice Holman added: ‘This is a bad situation. An order has been made that was much more restrictive than usual. The [child’s legal] guardian doesn’t think it’s defensible. It is unusual – there’s other language I could use but I choose not to.

‘It may be that what she [Ms Justice Russell] wanted was a very tight, almost total restriction of people talking about anything.

‘Of course this mother ought to be able to talk to the Press about her life.’

The mother’s victory comes after a two-year campaign led by senior judges to open up the family courts to greater scrutiny. 

The judge who has led the drive, President of the Family Division Sir James Munby, has been worried that the family courts’ reputation for secrecy has led to widespread mistrust of the courts and the judges, lawyers and experts who work in them.

Dame Alison Russell, 57, is a feminist judge who became the first to carry the formal title Ms. She may also be the first senior judge who is a cohabitee rather than married.

Among her controversial cases, she decided a boy with brain damage should be taken off life-support against his parents’ wishes. 

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