Neutral Citation Number: [2017] EWCA Civ 228
Case No: B4/2016/2922

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MS JUSTICE RUSSELL
ZC15P00907 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/04/2017

Before :

LADY JUSTICE BLACK
and
LORD JUSTICE FLAUX
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	RE M (child)		

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Miss Elizabeth Isaacs QC & Miss Marisa Allman (instructed by Baxter Harries Solicitors) for the Appellant
Miss Deirdre Fottrell QC & Mr Richard Jones (instructed by Ison Harrison Solicitors) for the 1st Respondent
Mr Seamus Kearney (instructed by CAFCASS) for the Child’s Guardian

Hearing date : 2nd March 2017
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Judgment Approved
Lady Justice Black: 
1.	This appeal is against orders made on 30 June 2016 by Ms Justice Russell in relation to a 20 month old boy, Z. Russell J ordered that Z should live with his mother (X) and her partner (P) and should spend time with his father (A) and his father’s partner (B) every two months. P acquired parental responsibility by virtue of the judge’s order. She refused to grant parental responsibility to B. The appeal is brought by A and B. What they seek to gain from it is an order that Z should live with them and that B should have parental responsibility for him. 
2.	Russell J’s judgment (neutral citation [2016] EWFC 34) is to be found on www.bailii.org. For ease of cross-reference, I have used the same initials for those featuring in the case as did Russell J. 
3.	The history of the matter is complex. The essential features are as follows. A and B are a homosexual couple in a civil partnership. They are the fathers of twins, who were born in 2013 as a result of a surrogacy arrangement with a woman to whom I will refer as V. A is the biological father of the twins, V carried the babies during their gestation, and a parental order was made in favour of A and B in January 2014. A and B are no longer in contact with V, their relationship with her having broken down. 
4.	A and B wished to have further children using the gametes of the woman who had donated the eggs for the conception of the twins and sought a different surrogate to help them in the process. They were introduced to X through a Facebook surrogacy site run or administered by W and others to provide a forum for the introduction of potential surrogates and commissioning parents. A very full account of the events from this point up to the birth of Z is contained in Russell J’s judgment and, as it is readily available to be read with this judgment, it is unnecessary for me to go into anything like the detail that she provided. The basic chronology of the surrogacy arrangement is that following the introduction through the Facebook site, the parties met briefly face to face in March 2014 for the signing of the agreement, and in October 2014 A and X travelled to Cyprus for the transfer of two embryos to X. Although initially the process was successful, one of the foetuses miscarried in December 2014, leaving only Z. X, encouraged by W, told A and B that she had miscarried both foetuses. Dealing with this at §74 of her judgment, the judge characterised W as “manipulative” and “duplicitous”, and X as “easily led”. In late May 2015, W told A and B that X was in fact still pregnant; they still wished to be parents to the baby. Z was born at the end of June 2015. It being apparent that X was not prepared to let A and B look after Z, they had made an application to court for orders requiring that. This was the beginning of the litigation that ultimately came before Russell J in the spring of 2016. Throughout the litigation, Z lived with X but, from late July 2015, he regularly spent time with A and B too. 
5.	X and her partner, P, have an older child, a boy, who was six years old by the time of Russell J’s judgment. The boy is on the autistic spectrum and there were some difficulties with his school attendance which were addressed with X and P during the proceedings. X herself has learning difficulties and has been described as a vulnerable young woman; she had the assistance of an intermediary during the hearing before Russell J. A very thorough investigation of her family and social history was carried out in the course of the proceedings and her parenting ability was thoroughly investigated. X and P have limited financial resources but the judge said (§45) that “the guardian has described the atmosphere in their home as loving and joyful” and appears to have accepted that herself from her own observations of X, P, and P’s sister, who all gave evidence before her (§115). The judge’s assessment of X and P can be found set out (inter alia) at §§45 to 49 and §§102 to 107 of her judgment. She did not dismiss the difficulties that X had had with her older son but found that X had accepted the deficits in her parenting and taken advice, with resulting improvements in the boy’s school attendance and behaviour. She found that X was caring for Z at more than an acceptable level, including ensuring that Z, who has an enlarged head and is under the care of a consultant neurosurgeon, has the necessary medical help. She was also impressed with P who she found to be clearly committed to Z. 
6.	In contrast to her relatively benign assessment of X and P, the judge was very critical of A and B throughout her judgment. I will not touch on all aspects of this here, confining myself to some examples. Russell J found A and B to be in a much more secure position socially and economically than X. The picture that emerges from the judgment is that they were by far the dominant partners in the surrogacy arrangement. The judge was heavily critical of the way in which they treated X, in relation to whom the judge considered they had failed to show consideration, concern and respect. The surrogacy agreement between the parties was entered into with little planning or preparation. At §55, the judge noted that A and B did not discuss with X her understanding about the legal rights and status of the three of them, and that they had not informed themselves of what professional support might be available to assist in successful surrogacy arrangements, and she gave her view that the sums offered by them as compensation for “contingencies” such as hysterectomy were wholly inadequate. She concluded the paragraph with the observation that “[t]heir approach to X was, at the very least, potentially exploitative and they did little or nothing to ameliorate it”. Another aspect of the treatment of X that attracted particular criticism was the failure of A and B to tell X of the difficulties that they had encountered in their surrogacy arrangement with V. The judge found them to be “dismissive of the considerable positive contribution to their lives” that V had made (§34). She considered that their negative view of V mirrored their negative and critical view of X, and she saw similarities in their approach to X and to V (§38). There was also criticism in relation to the way things were handled during X’s trip to Cyprus in October 2014, the judge describing A’s behaviour towards X during it as “crass”. She said that from that time, X’s relationship with A and B deteriorated and X began increasingly to see herself as being used, which the judge considered “entirely predictable”, noting that it was from then that X started to look for a way out of the arrangement. She found it “striking” that A and B did not seem able to see how vulnerable X was (§71), whereas the guardian and those she spoke to during her enquiries had commented on X’s vulnerability. 
7.	The judge commented on the difficulties in communication that there had been between A, B and X, contrasting the approach of A and B unfavourably to that of X. She said:
“109. There have been persistent difficulties in communication between the applicants and X which they have shown little appetite to improve and which along with calling Z by a different name when he is with them, give me cause to doubt their ability to be flexible and open with Z as he grows up. In contrast X regularly texts and communicates with the applicants and sends pictures frequently while they have sent a few pictures; within weeks of the final hearing. Again, in contrast, there is a willingness of X, as she told the guardian, for Z to take the applicants’ family names and to recognise the genetic link. Both X and P in their oral evidence volunteered that they were willing and could foresee circumstances in which all the adults would spend time with each other.  X spoke positively about B and honestly acknowledged that she did not know A well enough; although that is largely a matter of his own choosing. P said he was willing to spend time with the applicants and accepted the importance of their role in Z’s life.”
8.	The judge received expert evidence that it was important to take care of Z’s “identity needs” and that the place of X in Z’s life was crucial to his sense of identity (see for example §100). The evidence was that he would need to see a functioning relationship between his parents, and the guardian’s view was that “the main risk to Z’s lifelong welfare [was] around his identity needs” (§112). The guardian was not confident that if Z were placed with A and B, his contact with X would be given the priority that his best interests required and the judge shared the guardian’s pessimism. She found (§93) that there was a significant risk that if Z were to be placed with A and B, once the proceedings were concluded their personal sense of grievance and negative view about X would prevent them from promoting and supporting Z in having a positive relationship with her. She gave examples in the judgment of A and B’s dismissive attitude to X’s role in matters and their difficulty in accepting that X was Z’s mother and had an importance in his life (see for example §76). At §113 she found that “should Z live with [A and B] X’s role in his life is more likely to be devalued and diminished which will be damaging to his welfare, emotional needs and development”. Her view was that “in stark contrast”, X had been “able to move on” (§94). She had been relieved when A and B found out that her pregnancy had continued and recognised the importance of A and B in Z’s life (§98). Unlike A and B who had been critical of X’s parenting, X had said little by way of criticism of A and B’s parenting (§105). She and P had adjusted to the idea that Z has four parents and accepted it, whereas the judge found that A and B seemed to maintain some kind of hierarchy between the parents (§107). 
9.	When she came to set out her conclusions about the question of where Z should live, in a final summary commencing at §115, the judge said that she had adopted the guardian’s analysis of the case, having commented earlier that the guardian had carried out “a most thorough and wide-ranging investigation and assessment” (§89). The difference between the two possible placements for Z was not in relation to physical surroundings or care in the judge’s view, but in the warmth of the two families, as to which her findings about X were much more favourable than her findings about A and B (see §§115 and 116). The judge found that A and B tended towards insularity and also that they were unable to put Z first, as shown by their inability to overcome their antipathy towards the guardian (§116).  The core of the judge’s reasoning in deciding that Z should live with X is perhaps revealed in §117 where she said:
“117. I have concluded for the reasons set out in the discussion above that it is in Z’s best interests to remain living with X as she is better placed to meet his emotional needs. She is, quite apparently, more emotionally available and has a greater instinctive understanding of his emotional needs. Over and above this she is the parent who is much more likely and able to be able to treat both the applicants in an open and generous way and to enable Z to develop a good relationship with A, B and his siblings and so to allow him to develop a wider and a more positive sense of his own identity.”
10.	Also important in the judge’s reasoning is §114, in which she dealt with Z’s genetic ties and the implications of them for her decision:
“114.	The genetic tie. The relevance of the genetic tie is something which must be considered; Z is a full genetic sibling of the twins, he is genetically related to A, but not to B. Z has lived with X and has a bond with her as his de facto and gestational parent; she has provided him with loving, gentle and careful care and they are undoubtedly strongly attached to one and other. The relevance of the genetic tie is factual as well as legal but it is only one factor which has to be balanced against others in the decision making process, it is not a “trump card” which defeats all other considerations. The paramount consideration remains Z’s welfare and there is little doubt that separation from X would impact on him to his detriment.  Such a detrimental move from what is his warm, happy and loving home cannot be justified or driven by the fact of the genetic relationship with his biological siblings which does not have primacy; and, in any case, Z will know and have an opportunity to share his life with his genetic father and siblings, both now and in the future.”
11.	The judge made provision for contact to take place one weekend in every eight weeks with A and B, on the basis that Z would visit them on each of the days of the weekend but not stay overnight. There is no appeal against this aspect of her decision, which will regulate the position if the appeal in relation to Z’s residence fails. 
12.	The judge considered it necessary for P to have parental responsibility for Z and proper that A would also have parental responsibility, but she did not think there was the same need in relation to B. Very sensibly, X conceded during the appeal hearing that B should, in fact, have been granted parental responsibility. That accords with my view of Z’s best interests and I would therefore allow the appeal in relation to the judge’s decision on B’s parental responsibility and substitute an order in his favour.
The grounds of appeal
13.	There were originally five grounds of appeal. The fifth ground related to parental responsibility for B and it is not necessary to say any more about that. The first ground can be dealt with very shortly as well, for different reasons. It involved a complaint that the judge had made findings about the appellants’ behaviour in relation to V when she had indicated that she would not be doing so and had not afforded them an opportunity to test the evidence in cross-examination. Once the sequence of events at the hearing was apparent from the transcript of the relevant part of it, it was clear that this ground was untenable and Ms Isaacs QC (who, with Ms Allman, represented the appellants on the appeal) wisely abandoned it during argument. 
14.	The three grounds of appeal that remain are that the judge failed to direct herself properly about the standard of proof in relation to the factual dispute about the nature of the appellants’ relationship with V (Ground 2), failed to give herself a Lucas direction in the light of her finding that the appellants had deliberately lied about their relationship with V (Ground 3), and failed to address the long term welfare decisions about Z in a holistic way and to carry out a proper balancing exercise when engaging in the welfare analysis of Z’s needs (Ground 4). Of these remaining grounds, Ms Isaacs’ concentration in argument was upon Ground 4.
Ground 2
15.	I turn first to Ground 2. I do not accept that it is necessary for every judgment to include a self-direction on the standard of proof to be applied in making findings of fact. There can be no doubt that Russell J was well aware of it. Our attention was not drawn to anything in the judgment which suggested otherwise. 
16.	The appellants complained that the judge failed to remind herself that findings of fact must be based on evidence and not on speculation and failed to give her reasons for preferring the account given by X and by V over that given by the appellants. Their argument was that if the adverse findings about them were without a sound foundation, this fed into the welfare analysis which was based upon the factual background as found. 
17.	If the appellants were correct in suggesting that the judge’s factual findings were without proper foundation, then this might, of course, have implications for the soundness of her welfare analysis. However, I am not persuaded that her factual findings were in any way shaky or that there was a lack of explanation for them in the judgment. It is clear that the judge had, quite rightly, been much influenced by the oral evidence that she heard from all of the witnesses, and that she based much of her conclusions upon what she drew from what A and B said themselves or from impressions that she formed during their evidence. In relation to V, for example, she said that it was abundantly clear from their evidence that A and B knew very little about her (§33), that in his oral evidence B was unable to demonstrate any understanding or empathy for her (§34), that A and B gave inherently contradictory evidence about why they ultimately fell out with V (§36) and their evidence about the break lacked credibility (§37), and that A in oral evidence displayed no understanding or insight about how V might have felt (§37). These are the sorts of assessments which judges routinely carry out as a necessary part of their judicial function when hearing a case. They involve considering what a witness says, and evaluating how he or she presents, in the light of the evidence as a whole and of the judge’s experience of people and how they feel and behave. The conclusions – or findings – reached as a result of this process are not readily overturned by an appeal court as this court, the House of Lords and the Supreme Court have observed on too many occasions for the point to require labouring in this judgment. It follows that I would reject Ground 2.
Ground 3
18.	Ground 3 raises the question of a Lucas direction. I have found it difficult, however, to see precisely what bearing a Lucas direction would have had upon the course of this case. A helpful discussion of R v Lucas [1981] QB 720 in the context of a family case can be found in Re H-C (Children) [2016] EWCA 139. A Lucas direction is frequently given in criminal cases to warn the jury that a lie cannot automatically be taken as support for the prosecution case. In considering its relevance in the present case, I start by rejecting the notion that it is always necessary for a judge expressly to include such a direction to himself in his or her judgment. He or she will have the Lucas approach in mind but a judgment will not be vulnerable to appeal simply because no specific reference is made to it. 
19.	Secondly, I do not see how a Lucas direction would really have assisted Russell J in this case. The appellants invite attention to the fact that the judge made a number of findings about their credibility, finding for example that they had deliberately failed to tell either X, or the parental order reporter in the proceedings relating to the twins, of their difficulties in their relationship with V.  As put in counsel’s skeleton argument, their complaint was that the judge gave significantly more prominence in her decision to their lies than to X’s lie about the pregnancy having ended in miscarriage, which they considered to be unfair. Lucas comes into that argument, I think, because, in the appellants’ submission, the judge looked at what was behind X’s lies but did not examine the explanations for their own untruthfulness, leading to X being treated more favourably than they were. The Lucas point was developed to some extent in oral submissions, with the submission being made that the judge inappropriately relied on the lies that she found had been told about the situation with V to support findings that the appellants had lied about aspects of their conduct towards X, and/or that they were unsuitable to care for Z. 
20.	I do not accept that the judge erred as the appellants suggested. What I see when I read the judgment as a whole is a conventional assessment made by the judge on all the evidence before her, with significant weight being placed on what all the witnesses said, whether in writing or orally, and on the way in which A, B, X and P came across in the witness box. There are plentiful instances of the judge drawing conclusions from what A and B themselves said, seen against the backdrop of the rest of the evidence, for example §34 about B being unable to demonstrate understanding or empathy for V, §35 about both A and B describing V negatively, §37 about why they broke from V, §38 to the effect that their negative view of V was mirrored by their negative and critical view of X as set out in their written evidence, and §43 about their failure to accept fault on their part. At no point in the judgment did the judge appear to use their untruthfulness about one matter as establishing that they lied about another. She considered each matter as she went along, in the light of the evidence that was relevant to it. When she came to make her ultimate assessment of whether it was in Z’s best interests to live with A and B or with X and P, it was broadly based, with careful consideration of the material factors, as I will explain in dealing with Ground 4. In my view, it has not been shown to be in any way flawed by the judge’s approach to the lies which she found A and B had told. 
Ground 4
21.	Ground 4 concerns the judge’s approach to her welfare decision and was Ms Isaacs’ principal focus in oral submissions. In their skeleton argument, counsel for the appellants invited particular attention to §30 of Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882 in which Ryder LJ said that it is not only necessary to consider the competing proposals on their own merits, but also to consider the options side by side in a comparative evaluation. They argued that Russell J’s consideration of the welfare issues was unbalanced and incomplete because the merits of each option for Z were not analysed in a “comparative and measured way”. It was submitted that the judge ignored or gave insufficient weight to the many positive characteristics of the appellants and ignored or gave insufficient weight to X’s negative characteristics. In the appellants’ submission, the judge identified only one positive factor in relation to them (their capacity to care physically for Z) but at least 18 positive factors in relation to X. In particular, she failed to refer to their positive care of the twins. Further, they submitted, she failed to give weight to the likely effect on Z of not being brought up with his biological siblings, the twins, or to explain adequately why she did not give primacy to the genetic relationship with the twins and with A. She also failed to consider ways in which the short term damage that may be caused to Z by moving him to live with A and B might be ameliorated by the long term benefits of living with his biological father, step-father and siblings. And, in addition, she failed, in the appellants’ submission, to give consideration to Z’s particular characteristic as a child born by surrogacy as a full sibling to the appellants’ other two children, following careful planning on their part. They complained that the judge gave no indication in her judgment of the way in which this particular issue would be of relevance to Z’s later psychological and emotional development or might affect him throughout his life. They questioned the weight that the judge gave to the way in which, according to her findings, A and B treated V and X, submitting that there was no obligation on A and B to continue a relationship with either surrogate mother and that the shortcomings in their relationship with X should not therefore have been elevated to the position that the judge gave them.  
22.	The judge dealt with the relevant law at §§84-88 of her judgment. It was not her statement of it that the appellants criticised, but the way in which she in fact approached the question of Z’s genetic parentage and her welfare analysis more generally. In my view, however, a careful consideration of the judgment does not bear out their criticisms. It is important to read the judgment as a whole, because the judge made material findings as she went along which feed into the section beginning at §101 in which she looked at “the abilities of both X (and P) and A (and B) to provide a secure, loving and safe home in which Z can best ‘mature into a happy and balanced adult and …achieve his fullest potential as a human’” (the italics are the judge’s, denoting that she was quoting from one of the authorities that she had cited in §88). The judge said expressly (and correctly) that she did not consider it necessary to rehearse all the evidence in the case (§101). She noted the quantity of information accumulated by the guardian about the parenting styles of the parties and said that she relied on the guardian’s report, but not in isolation, making it clear that she had also evaluated the evidence for herself. She was entitled to place weight on the guardian’s view as part of her evaluation in this way. It assisted in directing her to what she, like the guardian, considered was the critical aspect of the case, namely the ability of the parties to be flexible, positive and co-operative (§101) and to look after Z’s emotional welfare (§110), including particularly his  “identity needs” (§112). 
23.	It is not uncommon that one particular feature of a case ultimately proves decisive of the outcome and the judge cannot be faulted for concluding, on the evidence in this case, that the significant difference between the two options here lay in the way in which the parties would meet Z’s emotional needs. There is no doubt that Z would need sensitive help in understanding his family history, including proper respect being shown for the role of X in his life. Of central importance for the judge’s decision was that, as X was no longer prepared to consent to a parental order in relation to Z, her role in his life would not only be historical; it would need to continue into the future. The judge gave plenty of examples throughout her judgment of why she concluded that A and B would not be as well able as X to deal with this aspect of matters. In my view, she was entitled to rely upon the evidence about the failure of their relationship with V, and their attitude towards that, as part of her evaluation of how they would approach X and her continuing role in Z’s life if they were caring for Z. As I have said, Ms Isaacs complained that the judge failed to take into account that there was no obligation on the appellants to maintain any contact with V because it had been a surrogacy arrangement; they hoped that it would turn out differently but it did not. This is, I think, to overlook what was actually concerning the judge, which was the attitude of the appellants towards V, including what they said about her during the hearing, which led her to say that there was no evidence that they had reflected on what had gone wrong and their role in that failure. That was relevant to the prognosis for their relationship with X, as to which there were, of course, further worrying indicators in the material before the judge. X’s lie about the miscarriage was certainly also relevant to the prognosis for the future, but the judge had analysed the reason for that, explained that X had been relieved when the dishonesty had been discovered, and gone on to detail the positive aspects of X’s present attitude towards A and B and their continuing role in Z’s life. 
24.	A good example of the sort of material that led the judge to place reliance on X to look after Z’s emotional needs in future and not upon A and B can be found in §109 of the judgment which I set out in full at §7 above. It is worth also quoting the judge’s §113 as it serves to encapsulate her view about the issue of the appellants’ attitude towards X:
“113. In their evidence and in the submissions to this court the applicants, particularly A, continued to struggle to accept X as Z’s mother, some 9 months after his birth and despite the concerns being raised in the guardian’s reports. In their evidence they did not give any recognition of the warmth and of the attachment that is there in the bond that Z has with the woman who carried and gave birth to him. I can only conclude that should Z live with them X’s role in his life is more likely to be devalued and diminished which will be damaging to his welfare, emotional needs and development.” 
25.	The judge did not ignore the other features of the case in focusing on emotional issues. There was no need for her to recite the welfare checklist and go through each factor in turn. What matters is that it should be clear from her judgment, as in my view it is, that she had the relevant matters in mind. Russell J’s view was that both households were able to provide for Z’s physical needs (§101). It was inevitable that, in accepting this, she should deal specifically with aspects of X’s parenting ability, because that had been called into question during the proceedings and, as the judge said at §103, the appellants did not seem able to acknowledge that X was caring well for Z.  The judge therefore needed to explain why she accepted the assessment of the guardian, and the observation of the health visitor, that X was, in fact, doing so and, in explaining, she was bound to refer to good features of X’s care.  X, on the other hand, said little by way of criticism of the appellants. Nevertheless, the judge herself, relying on her own observations and the guardian’s analysis, did consider the nature of life in A and B’s household, perceiving there to be a difference between the two families in relation to what she termed “warmth” (§115) and relying also on misgivings that the guardian had about the ability of A and B to look after the needs of three small children (§116). Nothing said in argument undermined this assessment of the judge’s.   
26.	The judge undoubtedly paid proper attention to the genetic tie, giving it specific consideration at §114. She set it in the context of the fact that Z had lived with X from birth and “has a bond with her as his de facto and gestational parent”. She rightly observed that the genetic tie was a factor to be balanced against the others in the decision making process but not a trump card, welfare being the paramount consideration. She was entitled to put weight on the fact that separation from X would have a detrimental impact on Z and to conclude, as she did, that in this particular case the genetic considerations did not justify a move. I do not accept that this was a conclusion that was fatally flawed by any failure to balance short term harm against long term gain. As should be apparent from what I have said already, emotional welfare was a very significant factor in the case, and I have no doubt that the judge was looking at the whole picture in relation to that when she said that the move could not be justified.  Furthermore, it is quite clear that she was in no way ignoring the importance of the genetic links with A and his siblings. She had been careful to look at X’s attitude to A and B and was able to assure herself that Z would know and have the opportunity to share his life with his genetic father and siblings, now and in the future (§114). Z needed to have both A and B and also X in his life, and it was X that the judge thought would be most able to secure this. In §117, which I quoted at §9 above, it can be seen that she laid particular emphasis on X being the parent who is more able and more likely to treat A and B in an open and generous way and to enable Z to develop a good relationship with A, B and his siblings, and so to allow him to develop a wider and more positive sense of his own identity. As to the fact that Z was born of a surrogacy arrangement initiated by A and B, that is a matter of which the judge was acutely aware, having devoted quite a lot of her judgment to considering the nature of the arrangement. It was only one of the circumstances of the case and could contribute to the decision only in so far as it had a relevance to decisions about Z’s welfare. On the particular facts of this case, it was not a feature which could have swayed the judge from the welfare conclusion that she reached. 
27.	So, for all these reasons, I am not persuaded that there is anything in Ground 4. The judge’s welfare analysis was, in my view, a proper consideration of the realistic options for Z, in which she weighed and balanced all the relevant factors in relation to A and B on the one hand and X and P on the other, and reached a decision on the basis of what was in Z’s overall best interests.
Conclusion
28.	I would therefore dismiss the appeal from Russell J’s orders except in relation to parental responsibility, in respect of which I would allow the appeal and substitute an order giving B parental responsibility for Z. 
Lord Justice Flaux:
29.	I agree: