Separated on the orders of a British judge: 'Rosana' and her baby daughter, who was taken away

Picture the scene. Amid the bleak surroundings of a public coffee bar inside London’s High Court of Justice, a mother is forced to hand over her 15-month-old baby to her ‘sperm donor’ father and his gay lover.

In a deeply distressing episode, she breast-fed the baby for the last time as court ushers offered tissues to wipe away her tears. Then, the gay couple carried the child, wearing a pink coat and white shoes, out of the building and away to a new life.

This is an extraordinary story which offers some profoundly disturbing insights into both the morality of modern Britain and how the state operates in this country.

It is also, more pertinently, a story which officialdom has desperately tried to suppress.

At the centre of this drama is the heartbroken 44-year-old woman sitting opposite me whose baby was taken away from her in April this year on the order of Britain’s secretive family courts — and given to the gay couple.

Until now, the woman has been subject to a Draconian gagging order imposed during the case by Justice Alison Russell, 57, a fervent — some would say obsessive — feminist and, significantly, the first judge to insist on being addressed as ‘Ms’ rather than ‘Mrs’.

But last month, in a victory for freedom of expression after a Daily Mail campaign, the order was partially lifted. As a result, this deeply grieving mother is finally able to give her version of what happened — although, in order to protect her child, she cannot be identified.

Apart from the moral issues involved in a secret family court taking a child from its mother, and then stopping her from talking about the judgment, this case also raises worrying questions about the way in which judges are imposing their own values on courts and all too often spurning centuries-old wisdom about family life.

The middle-class, well-educated woman in this case — a scientist whom I will call Rosanna — was 41 when, she says, she asked a gay friend in 2013 to act as a sperm donor for her, and father a child before ‘her biological clock ran out’.

The father and his male lover — who, like her, are from Romania — dispute this and say they had an informal agreement with Rosanna that she would act as a surrogate for a child they themselves would co-parent.

Whatever the truth, this complex and highly emotive story starts when the mother and father — let us call him Peter — of this small child met when they were both 18 and living in Romania.

Both had similar family backgrounds, and Rosanna’s mother — a health visitor — gave Peter his childhood vaccinations.

They became close friends and were still in touch when, 14 years ago — like so many East Europeans — they took advantage of a relaxation in EU immigration rules allowing students and the self-employed to live in Britain.

‘I thought he was the perfect choice to father my baby,’ she says. ‘I had known him for years and he was among my best friends,’ says Rosanna.

FEMINIST WHO GAGGED THE PRESS The Hon. Justice Alison Russell is an arch-feminist with a history of gagging the Press. She was appointed to the High Court in January last year, made a Dame and immediately created headlines by asking to be referred to by the title ‘Ms Justice’, rather than the traditional Mrs or Miss. Within months, she had again caused controversy, gagging a 94-year-old former midwife from talking to the Mail about her claims that social workers were ‘persecuting’ her. The judge, 57, was born in Harrogate, North Yorkshire, and educated at independent Wellington school in Ayr, south-west Scotland. Unusually for a successful lawyer, she did not obtain her degree from an ancient university, but from the then South Bank Polytechnic. She is unmarried, has no children and lives with her partner Julian Francis in Brixton, South London. She describes her interests as Spain, Handel, cooking, reading and playing with her niece and nephews. Advertisement

‘I said I’d be the mother and carer, and he could visit the child any time,’ she adds. ‘I did not want to have a baby without a father because it was important for the child to have a dad. And he agreed.’

So it was that, in April 2013, the pair used a home insemination kit at Peter’s house. He had bought the equipment, but Rosanna says she gave him details of what kind to get. Within a few weeks, Rosanna was pregnant. It must be said at this stage that Rosanna already has children from a previous marriage in this country which ended in divorce.

During that custody battle, it was decided the two children — now teenagers — should live with their father, although Rosanna shares parenting rights and sees them for alternate weekends and half their holidays. She has always had a good relationship with them and still lives near them.

After Rosanna fell pregnant, Peter, a businessman, rented a big family home in a pleasant suburb of London. He invited Rosanna to live there with the new baby and also her two teenage children.

‘I refused the offer of us all living with Peter,’ she says, ‘because I wanted my daughter in my own place — and for him to come to see the baby. I did not want to make it complicated when it wasn’t necessary.’

Although the unorthodox birth arrangement was described by the gay couple during the legal battle as a ‘surrogacy pact’, it was never considered that by Rosanna.

She explains: ‘In a surrogacy, a woman has a baby for another couple. But I was having this baby for myself.’ She says she was happy for Peter to ‘play a part’ in her child’s life, and told him so.

In January last year, Rosanna was due to give birth at a hospital near her flat in the Home Counties. However, when the baby was 12 days overdue, she got her first inkling that there might be a problem over her agreement with Peter.

She received an email from his male lover — who, she claims, was initially ‘not really in the picture’ — alleging that she was putting ‘their’ baby ‘at risk’ by not going to the maternity unit to be induced. She ignored his advice because she had been having regular check-ups and felt everything was all right.

The woman has been subject to a gagging order imposed during the case by Justice Alison Russell, pictured

The day after the email, she started contractions and, without telling Peter and his boyfriend, gave birth alone at the hospital. ‘I didn’t want two men, one a near-stranger, to see me in labour,’ she says.

After the birth, she emailed Peter to say a girl had arrived safe and well. And she and her daughter went to live together in her own comfortable flat near to her elder children so they could see the baby regularly. (Today, she says, both children miss her baby desperately).

Four days later, after going home by taxi, she received a legal letter from Peter. He wanted a formal agreement on bringing up the child with her.

Of course, many will think Rosanna selfish or naive or both to think that she could raise a child in such a way without any legal framework, especially when the child’s father was in a relationship with his boyfriend.

Equally, if Peter wanted to bring up his daughter, surely he should have insisted on a proper contract before the child was born?

My little girl looked at me with her green eyes as I breast-fed her at the court building. ‘She fell asleep in my arms and was given to the men waiting in the coffee bar. She will have woken up and found I was not there any more.

The shambolic situation meant that Rosanna registered the birth without naming Peter as father. She chose the child’s first name (which Peter has said he does not agree with) and put it on the birth certificate.

Later, she baptised the baby in a Christian church without telling Peter, or his gay lover — although both are non-practising Christians.

Perhaps it is no surprise, therefore, that by the time the baby was just four months old, in spring last year, Rosanna and Peter were at loggerheads.

At that point, he and his lover went to the family courts to fight in a private custody battle for a role in bringing up the baby. It was not a care hearing, and Rosanna was not criticised for endangering the child in any way.

Initially, the court ordered that Rosanna should give Peter the child for two nights, and for one day each week. It was an arrangement that worked well.

But in January, an independent social worker — they are appointed by courts in any private custody battle to look after the child’s interests — told Rosanna that her daughter was being prepared for an ominous-sounding ‘adoption-style change of residence’.

This was despite the fact, insists Rosanna, that she went out of her way to keep Peter involved in their child’s life.

At one point, when the baby was ill and she took her to Casualty at hospital, she says she texted Peter 20 times to let him know what was happening.

Amid the bleak surroundings of a public coffee bar inside London’s High Court of Justice, pictured, a mother was forced to hand over her 15-month-old baby to her ‘sperm donor’ father and his gay lover

‘I tried to involve him. He even came to her vaccination appointment. I was happy to have him with us. Never, in my wildest dreams, did I expect the family court to take her from me.’

But as we now know, that is exactly what happened.

It was, of course, a ruling that tore Rosanna apart. To make matters worse, she had to hand over her baby in the sterile confines of the court building after that one last feed.

‘My heart was broken when the judge ordered me to give my daughter away immediately,’ she tells me. ‘It was inhumane. My little girl looked at me with her green eyes as I breast-fed her at the court building.

‘She fell asleep in my arms and was given to the men waiting in the coffee bar. She will have woken up and found I was not there any more.

‘I was treated like a criminal. I adore my daughter, carried her in my womb, gave birth to her, and cared for her.’

She shakes her dark head of hair before adding: ‘I wanted to tell my story because this court decision was an attack on motherhood. To put my child through this, when I had bonded with her, is beyond belief.’

The Hon. Ms Justice Russell decided that Rosanna had lied about wanting to raise the child with Peter’s involvement, and had always wanted a baby for herself, simply inveigling the girl’s gay father into being a ‘sperm donor’.

The judge believed — on what she said was the ‘balance of probabilities’ — that Peter wanted to be a loving parent to the girl. And she said that Rosanna was manipulative, self-willed and had tried to discredit the gay couple ‘in a homophobic and offensive manner’.

No child, unless it is in danger — which was not the issue with me — should be removed from its mother

During the court proceedings, the judge accused Rosanna of using ‘stereotypical images and descriptions of gay men’, claimed she ‘insinuated that gay men in same-sex relationships behave in a sexually disinhibited manner’, and that she suggested they were ‘sexually disloyal to each other’.

Russell said that an ultra-strong gagging order was necessary because the mother or her friends had put messages on social media about the custody row.

In a withering judgment, she said Rosanna ‘has sought to present herself . . . as a victim and someone whose rights as a mother have been trampled over and abused.’

Russell — who is both unmarried and childless — conceded that Rosanna had cared for her child well physically. But she criticised her for sharing a bed with her and carrying her in a sling which allowed her to breastfeed at will.

In words that must surely chill many people, she said that the ‘attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breast-fed on demand raises questions about the long-term effect on the child’.

Russell contended that breast-feeding was used by Rosanna as a means of stopping the father seeing his baby more often.

Though she conceded that the little girl would be distressed by being ‘moved’ from her mother, the judge said the toddler was very young and would ‘settle quickly’ with her father and his lover, adding that Peter had the ability to allow her to grow into a ‘happy, balanced and healthy adult and reach her greatest potential’.

After ruling that the child should be handed over, she concluded: ‘This case is another example of how agreements between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners.’

What many will find extraordinary is that the judge removed parental responsibility from the mother and gave it not only to the child’s father but also to his lover, despite the fact that the two men are not in a civil partnership and, according to the mother, have had an on-off relationship in the past. The lover has no biological link to the child and the mother claims that she herself has rarely met him.

But what is so deeply disturbing about the case is this: the Hon. Ms Justice Russell said her ruling would ‘form the basis’ for family court decisions on similar parental custody disputes in the future.

Since the ruling, Rosanna has been allowed to visit her daughter for only one-and-a-half hours twice a month in a council-run child contact centre where social workers watch her and report back to the court.

‘We cuddle, she knows who I am, and when I leave she cries,’ she says. ‘I have lost the baby I adore, and lost Peter as a friend, too.’

As for the judge’s claim that she is homophobic, Rosanna says: ‘How can I be? I have been friends with the child’s father for 25 years, always known he was gay and chose him to father my child.’

What an unholy mess!

Certainly, when a child’s biological mother and father squabble over rights and access, the courts have a role to play in making rulings about custody. And secrecy is sometimes important in family courts to protect damaging details about genuinely abused children becoming public.

But many will feel that secrecy in cases such as this allows judges, a sizeable proportion of whom have a terrifying predilection for arrogance, too much unaccountable power to impose their own social and moral agendas.

Significantly, the strict gagging of Rosanna — which was due to last until the child was 18 — has even been criticised in a letter to the family courts by the Left-wing Guardian Newspaper group.

In the past, Sir James Munby, President of the Family Division, has said such orders have led to widespread public mistrust of the courts, the judges, lawyers and social workers who operate in them.

He has said that mothers’ human rights are being ignored if they cannot speak out about decisions made concerning their children in the family courts. To silence them was ‘an affront to the law, human dignity and, indeed, humanity itself’.

Indeed, there are growing questions over the secretive family justice system, which authorises the adoption of 5,000 children annually, 96 per cent of them forcibly removed from parents who are then stopped from discussing their case under threat of imprisonment. Every year, many of these parents are jailed for breaking the secrecy rules.

At the recent court hearing finally allowing Rosanna to speak to the media, High Court judge Justice James 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’.

‘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,’ he said.

As for Peter and his boyfriend, in a statement last night they said: ‘We are saddened that the mother feels the need to tell our story so publicly, and would urge anyone reading this to also see Ms Justice Russell’s judgment, which sets out a very different picture.

‘The family court’s paramount consideration has always been our daughter’s welfare, as is ours. There are no winners in this case, only what is best for our daughter in the circumstances.’

The men are now seeking child maintenance from Rosanna, even though she has seen her daughter for only 21 hours since Ms Russell’s gagging order seven months ago. Rosanna, meanwhile, is adamant: ‘No child, unless it is in danger — which was not the issue with me — should be removed from its mother.’

Today, she always carries the bib that her daughter was wearing when she breast-fed her for the last time. ‘It smells of the lovely daughter I have lost and brings back memories of our life together,’ says Rosanna.

Nor has she given up the fight to have her daughter returned. Soon, she will take her case to the European Court of Human Rights, arguing that her’s and her daughter’s entitlement to a family life have been destroyed.