The twin children were born in England to a surrogate mother. At the date of the hearing they were 3 months old and had spent all of their lives in England. The surrogacy agreement was made in California on 12 February 2001 between a married Californian couple and an English woman. It was agreed that the English surrogate mother would carry embryos nurtured from the egg of an anonymous donor and fertilised by the sperm of the Californian husband.
Consequently, only the husband would have any biological connection with the child. The agreement contemplated that after the necessary medical procedures the surrogate mother would go home to England and only return to California for the birth, at which the husband and wife would be present. The Californian couple would take immediate possession of the child after the birth.
The surrogate mother underwent the necessary treatment in accordance with the agreement. However, it was then discovered that she was carrying twins and this led to a dispute between the parties. The surrogate mother invoked the jurisdiction of the California courts.
On 3 October 2001 a Californian court awarded “joint physical and legal custody of each of the children upon birth” to the Californian couple. The order further stated that the surrogate mother had “no mother-child relationship with either child and no obligations of, nor rights of, a parent-child relationship with either of the children”.
The surrogate mother did not contest this order having returned to England. She subsequently determined to give birth in England and not to return to California. There followed many court applications, inter alia, the mother filed an application to appeal the order of 3 October. The Californian couple issued return proceedings under the Hague Convention, claiming that the twins were being wrongfully retained in the United Kingdom.