Monthly Archives: January 2014

Reaching an agreement: an example of overcoming entrenched disputes. By guest blogger Hayley Crossman

6026050882_4681975221_mYesterday was my MA dissertation recall day at Keele University where I am studying for an MA in Child Care Law and Practice.  It was good to be back with my university colleagues as we are all going through this ‘ordeal’ together and we all seem to be in a mild state of panic.

Sitting around the table we all seemed to be worrying about the same kind of things – How do I start this dissertation? What if I have changed my title? I have no idea where to start! When does this have to be in again?!

It was good to see that I was not the only one who had decided to change the title of my essay but I put this change down to working in an environment where every day brings something new to consider.  For the past few weeks I have been deliberating between various topics but have decided to carry on writing about the issue of contact (although listening to the other suggested topics being mentioned by my colleagues such as, adoption and the 26 week limit, the role of men in the family and domestic violence and child protection did have me verging on the point of changing titles completely).

Attending clients in meetings does open your eyes to the all encompassing reach of ‘family law’ and makes you realise the broad spectrum of issues which family lawyers deal with.  There is the financial side of divorce, the family side of divorce and the putting plans in place prior to marriage – no day will be the same and every client has a different story to tell; our job is to do the best for them in their circumstances.

Going back to my dissertation, I have started to look at some of the data around contact and found that this month Cafcass released their figures for private proceedings and care proceedings demand:

http://www.cafcass.gov.uk/news/2014/january/december-2013-private-law-demand-statistics.aspx

http://www.cafcass.gov.uk/news/2014/january/december-2013-care-demand-statistics.aspx

Unfortunately, there is no absolute breakdown of what the private law demand applications were.  I would be interested to know how many applications were for contact alone and how many of these were from non resident parents and how many were from other family members.  The figures appear to show that in 2013, applications for care proceedings fell whist applications for private law increased although applications in both arenas in December appeared to fall.  The figures do seem to fluctuate though and therefore it cannot be said for certain whether applications are really declining in public law but increasing in private law.

I had thought, following the family justice review and the government response to this,  that removing legal aid from private law proceedings would lead to a decline in the number of couples pursuing cases through the family courts.  The government had hoped that more couples would seek to come to an arrangement through mediation and the use of parenting agreements.  However, there will always be couples who are entrenched in bitter arguments and therefore feel they need to rely on family courts to make an order for contact, residence or prohibited steps orders (amongst other applications). Unfortunately, it is too soon to look at whether withdrawing legal aid is having an effect on the number of cases going through the family courts but the figures which emerge in the future should give us a better indication of this.  I am hoping that more robust data will also be available on the type of applications received by the courts.

I was intrigued to see if parenting agreements or (shared parenting plans) had ever been mentioned in case law – and they had.

Re: Z (Shared Parenting Plan: Publicity) [2006] 1 FLR 405 publicised a case which involved a couple who had been entrenched in bitter arguments for three years.  The father had abducted the child and had served time in prison for this.  Eventually, the parents had been able to reach an agreement as to the sharing the parental involvement with the daughter.  The opinion of the whole court was that the

“shared parenting plan agreed by the parents in this case was to be commended and such an approach could be considered as a basis for discussion and negotiation in future cases.”

Although this case is now nine years old, it could well be reported in future cases to show that not all matters concerning the residence of children need to go through the family courts and that an agreement can be reached even following long periods of family disputes.

I think this may be another area of law to watch in the future.

Photo by zeeweez via Flickr under a Creative Commons license

A quick guide to surrogacy law as it currently stands within England.

8027725497_4050f2e157_mIn furtherance of my blog both yesterday, entitled From Yorkshire to Los Angeles and back again in one blog post and on the 22nd of January, entitled ‘A seven month old baby boy and Surrogacy: Finances and the inconsistencies between policy and law’. I decided to complete a little more in depth research in regard to the current Surrogacy laws in England, which appear to be somewhat of a hot topic at the moment.

The UK Government webpage gives a quick guide as to the rights for surrogate mothers and includes the following information. ‘Surrogates are the legal mother of any child they carry, unless they sign a parental order after they give birth transferring their rights to the intended parents.’ ‘The woman who gives birth is always treated as the legal mother and has the right to keep the child – even if they’re not genetically related. Surrogacy contracts aren’t enforced by UK law, even if a contact has been signed with the intended parents and they’ve paid for any expenses.’ This is obviously extremely controversial with surrogate mothers having the ability to keep the babies they give birth to regardless of the fact that the child may be the genetic child of the intended mother. This results in issues like the one reported by the Daily Mail in their article entitled ‘Surrogate mother says ‘Sorry, but I am keeping your babies.’’. So what about the father’s rights? The government states that ‘the child’s legal father or ‘second parent’ is the surrogate’s husband of civil partner unless legal rights are given to someone else through a parental order or adoption or the surrogate’s husband or civil partner did not give their permission to their wife or partner.’ Thus it would appear that the intended father, who could also be the genetic father of the child, is left in the same position as that of the intended mother. Further the government states that ‘if a surrogate mother has no partner, or they’re unmarried and not in a civil partnership, the child will have no legal father or second parent unless the partner actively gives consent’.

It is illegal in the UK to pay a surrogate beyond the reasonable expenses incurred by the surrogate mother in relation to her pregnancy. The Surrogate also has a right to 52 weeks’ maternity leave and to return to their job after this.

Surrogacy law within the UK has not changed much since the implementation of the Surrogacy Act 1985. Thus Surrogacy law could be considered somewhat outdated and fragmented. Bianca Jackson in her article entitled Surrogacy: A Guide to the Current Law (Part 1) states that surrogacy law is full of contradictions such as the fact that ‘commercial surrogacy is prohibited, but the courts can authorize payments to the surrogate mother; third party non-profit surrogacy organizations can receive remuneration for some services, but not for others. There is no comprehensive legal approach to surrogacy or even consensus about what such an approach would look like. As such, surrogacy law remains a source of confusion to both practitioners and those who engage in surrogacy practices.’

Bianca goes on to explain that, according to the Surrogacy Act, ‘Surrogacy arrangements are not illegal if they are altruistic (i.e. the surrogate mother does not receive payment for carrying the commissioned child). Commercial arrangements for surrogacy are prohibited [s.2(1)]. However, the commissioning parents and/or the surrogate mother are not guilty of an offence if payment beyond reasonable expenses is made [s.2(2)]- though if payment is made, this may have ramifications for the outcome of the application for a parental order. Regardless of whether payment is made to the surrogate mother or not, all surrogacy arrangements are unenforceable [s.1A – inserted by Human Fertilisation and Embryology Act 1990]. It is a criminal offence for a person to advertise that they are looking for a surrogate mother or are willing to act as a surrogate mother [s.3(1)(a)] and the penalty for doing so is a fine and/or up to three months imprisonment [s.4(1)].’ Further in relation to professional bodies, ‘It is a criminal offence for any third party (whether an individual or a professional body) to broker surrogacy agreements between a surrogate mother and commissioning parents for commercial purposes, i.e. for payment [s.2]. It is also a criminal offence for third parties to advertise their willingness to broker a surrogacy arrangement [s.3(1)(a)], as well as for newspapers or periodicals to carry said advertisements [s.3(2)]. The penalty for any of the above offences is a fine and/or up to three months imprisonment [s.4(1)].’

The Human Fertilisation and Embryology Act 1990 and 2008 both further add to the Surrogacy Act. The Human Fertilisation and Embryology Acts above regulate what can and cannot be done with embryo’s and gametes. Bianca goes on to explain the intricacies of the above Act in relation to the legal definitions of parentage and the transfer of parental responsibility and legal parenthood, which make for interesting reading.

Of further relevance in the area is the Human Fertilisation and Embryology (Parental Orders) Regulation 2010 which inserted s.1 of the Adoption and Children Act 2002 into s.54 of the HFEA 2008. Part 13 of the Family Procedure Rules 2010 also offers integral guidance on s.54 of the HFEA 2008. Links to all of the above acts, regulations and articles can be found below.

Obviously the above is a simplified summary of current surrogacy laws and anyone wishing to take part in the surrogacy process should visit the Human Fertilisation & Embryology Authority’s website which is listed below and contact a lawyer with specialist knowledge of surrogacy law.

Further information on surrogacy and support throughout the surrogacy process can be found via the links below:

Surrogacy Act 1985: http://www.legislation.gov.uk/ukpga/1985/49

The Human Fertilisation and Embryology Act 1990: http://www.legislation.gov.uk/ukpga/1990/37/contents

The Human Fertilisation and Embryology Act 2008: http://www.legislation.gov.uk/ukpga/2008/22/contents

Human Fertilisation and Embryology (Parental Orders) Regulation 2010: http://www.legislation.gov.uk/uksi/2010/985/contents/made.

Adoption and Children Act 2002: http://www.legislation.gov.uk/ukpga/2002/38/section/1Surrogacy Act 1985: http://www.legislation.gov.uk/ukpga/1985/49

Part 13 of the Family Procedure Rules 2010: http://www.justice.gov.uk/courts/procedure-rules/family/parts/part_13

‘From Yorkshire to Los Angeles and back again in one blog post’: http://www.stowefamilylawllp.com/2014/01/29/from-yorkshire-to-los-angeles-and-back-again-in-one-blog-post/

‘A seven month old baby boy and Surrogacy: Finances and the inconsistencies between policy and law’: http://www.stowefamilylawllp.com/2014/01/22/a-seven-month-old-baby-boy-and-surrogacy-finances-and-the-inconsistencies-between-policy-and-law/

Bianca Jackson’s article entitled Surrogacy: A Guide to the Current Law (Part 1): http://www.familylawweek.co.uk/site.aspx?i=ed127038

Surrogacy UK, Common Questions Answered: http://www.surrogacyuk.org/intended_parents/your-questions-answered

Human Fertilisation & Embryology Authority: http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html

Daily Mail article entitled ‘Surrogate mother says ‘Sorry, but I am keeping your babies.’’: http://www.dailymail.co.uk/femail/article-423125/Surrogate-mother-says-Sorry-Im-keeping-babies.html

Photo by _-0-_ via Flickr under a Creative Commons license

From Yorkshire to Los Angeles and back again in one blog post.

9796886936_82b716639c_mJust recently I have been checking out a number of other blogs written by trainees, paralegals and interns across the world in regard to their time working for a variety of law firms. Of recent I was pointed in the direction of a blog written by Andrew Powell who is currently completing an internship at Vorzimer Masserman, a law firm in Los Angeles, as part of the Pegasus Scholarship. We all dream of warmer climes so it would appear that Andrew has landed on his feet in this respect. As I read the blog a number of interesting things jumped out at me and I thought it would make an interesting blog post to compare the experiences Andrew is gaining in Hollywood to the realities of working in the legal profession within the UK.

Vorzimer Masserman appear to be a law firm not unlike Stowe Family Law LLP in that they are highly specialised within the area of family law. Andrew obviously experienced the nerves anyone would get starting at a new firm, but he also had to deal with an alien city. I have visited Los Angeles myself and I can vouch for the fact that it is a little overwhelming on arrival and very different to any city in the UK. Andrew thus threw himself in at the deep end and in order to get used to the city hired a car and went for a drive, something I would have to commend him for. I think I would start with a walk, at least then there is less chance I would cause an accident.

On his first day at the law firm Andrew spent the morning trying to decide what to wear, every job you start has a slightly different dress code and you always want to make a good impression. Here in the UK white collar workers, including those who work within law firms and chambers, are expected to dress, well, in white collar, that is to say in a suit. So Andrew was a little surprised, and I have to say I would be too, to find that upon turning up at the office suited and booted everyone was dressed casually. He rightly states, however, that it is ‘better to be overdressed than underdressed’. I suppose wearing a suit could be classified as very British and traditional and I have to ask if it could really be classed as overdressed within the full sense of the word. I think Andrew was right to go in a suit and as one of the comments on the blog reads ‘overdressed?… Just very British and Temple. Rock that look.’

Andrew apparently survived week one and his next blog post details his second week in the office. It sounds like he is somewhat living the dream with a welcome lunch and a weekend sailing trip with a new colleague, something that in Los Angeles calls up images of crisp blue waters, refreshing winds and radiant sunshine. However, if we transpose the activity to the UK it instantly conjures up images of choppy angry waters, grey skies, high winds and pouring rain, followed, if you are me, by an intense feeling of travel sickness. I never have found my sea legs, as they say.

Vorzimer Masserman focus a lot of their work in the areas of fertility and surrogacy. Something I have yet to encounter in the UK. It is an area of law that involves a large cross over between family law and contract law, something that Andrew is experiencing first hand. The legal progress in surrogacy involves two stages: ‘1) the contractual phase and 2) securing parental rights.’ With ‘the first phase being largely transactional and broken down into a number of stages: matching the intended parent(s) with a surrogate mother, a process undertaken by a certified surrogacy agency. This entails medical and psychological screening and drafting contracts to be sent to the intended parent(s) – the contracts detail all of the legal rights and obligations of each party to the agreement.’ Like any contract, surrogacy contracts are dependent upon the parties involved and can vary from one party to the next. There is a financial element to the contract and this is generally governed by the surrogacy agency. The second step, securing parental rights, is largely procedural according to Andrew. ‘An interim hearing is listed to name the intended parent(s) as the legal parents of the unborn child (a pre-birth order). Prior to that hearing, lawyers on behalf of the intended parent(s) submit papers to court, usually at a point when the surrogate is 20-25 weeks pregnant so that a hearing can be listed for a pre-birth order to be obtained by the time the surrogate is 30 weeks pregnant. There is an emergency procedure available in the event that the surrogate gives birth before the expected due date.’

The surrogacy cases that Andrew is now becoming involved in, cross the states of America and often go beyond its borders to the UK and Europe. This is a topic that I find extremely interesting and which can be cross compared with a previous blog post of mine entitled ‘A seven month old baby boy and Surrogacy: finances and the inconsistencies between policy and law’, which can be found here: http://www.stowefamilylawllp.com/2014/01/22/a-seven-month-old-baby-boy-and-surrogacy-finances-and-the-inconsistencies-between-policy-and-law/

Andrews’ most recent post talks about Yorkshire Tea, something which I am sure is close to the hearts of many of my readers. It would appear that it is also close to the hearts of Andrew’s new colleagues, with it becoming an ‘anticipated occasion each afternoon’.

I am sure that I will be following Andrew’s blog on a regular basis both for entertainment value and to cross compare life at a Los Angeles law firm to that of a UK law firm. Both of which are excellent places to learn and within both I am sure you gain excellent experiences, even if Andrew gets to gain these experiences in the beautiful Los Angeles whether whilst I get stuck with the rain and cold of Yorkshire. I suppose one good thing about being in the cold of Yorkshire is that I have unlimited access to Yorkshire Tea.

To read Andrew’s blog and to keep up to date with his life in sunny Los Angeles, please visit the below link:

http://wigandgownintinseltown.com/2014/01/27/the-yorkshire-tea-party/

Photo by Miroslav Vajdic via Flickr under a Creative Commons license

Child Abduction, Japan and the 1980 Hague Convention

3963705135_407f5aacfc_mOn Friday the 24th of January 2014 Japan finally signed and ratified the 1980 Hague Child Abduction Convention.  The Government of Japan approved the 1980 Hague Child Abduction for ratification in Tokyo and within a matter of hours the instrument of ratification was deposited by Mr Masaru Tsuji, the Japanese Ambassador to the Netherlands. Japan is the most recent country to join the convention and has become the 91st contracting state. The convention will come into force within Japan on the 1st of April 2014. The signing of the convention appears to be in response to the heavy criticism Japan has received from the United States of America and a number of other western countries. Japan could previously have been compared to the Bermuda Triangle for child abduction with high numbers of children abducted to Japan every year with no following legal authority to return these children to their original jurisdictional country. Ratification comes after years of multi-governmental efforts of diplomacy and international public outcry over Japan’s failure to join the convention which caused numerous parents and children to have nowhere to turn in order to rectify their international abduction disputes.
The 1980 Hague Convention provides a system of co-operation between contracting member states in relation to international child abduction. Its aim is to ensure the immediate return of a child to its original country of habitual residence. Numerous judges across the contracting member states oversee the implementation and continued compliance with the convention; however they have no power to decide custody issues. Once the child is returned to their country of habitual residence the custody issues will then be decided by the court within whose jurisdiction the case falls.  Previous to Japan joining the convention the parents left behind after the abduction of a child to Japan had little or no rights in regard to their child. The parents left behind were often fathers who became a victim of Japans somewhat antediluvian and biased legal system in which the mother of the child was more often than not awarded custody of the child with the father being allowed no access to the child. Japan’s legal system has no concept of joint-custody. Japan was, previous to the 24th January 2014, the only country within the G8 that had not signed the 1980 Hague Convention.

The Convention will however not be retrospective, which means that those parents left behind previous to the enactment of the convention within Japan will have no cause for action under the convention. This obviously remains a high concern and a debated point. With the implementation of the convention Japan will need to establish a Central Authority, which will be made up of international family law experts, domestic violence counsellors and child psychologists. The Central Authority will be in charge of locating children who are the subject of abduction and encouraging the parties involved to try to settle their disputes without the need for litigation. There remains a defence to child abduction, this being refusal to return a child if abuse or domestic violence is feared.

Japan’s signing and ratification of the 1980 Hague Child Abduction Convention may encourage countries who have previously refused to join the convention to do so, these countries including India, Egypt, the Philippines, mainland China and Saudi-Arabia, some of whom are already considering the convention.

Marriages between Japanese citizens and non-Japanese citizens are on the rise with a peak of nearly 9,000 marriages in 2007 between non-Japanese men and Japanese women. In comparison marriages between non-Japanese women and Japanese men only accounted for approximately 2,000 marriages in 2007, with marriages where both parties were of Japanese origin dropping from approximately 4,000 in 1991 to just below 2,000 in 2009; these figures being produced by the Ministry of Health, Labour and Welfare. It therefore follows that child abduction to Japan will rise should these marriages breakdown. Japanese divorces are more often than not resolved on paper without the need for litigation; however the element of child abduction, previous to the Hague Convention, often caused Japanese divorces to be greatly extended.

In October 2012 the Children’s Rights Council of Japan obtained statistics, from the National Centre for Missing & Exploited Children, which showed that 93% of cases involving the abduction of a child from the USA to Japan remained unresolved after two years, with 44% of these case remaining unresolved for over five years. Further, 76% of closed cases involving child abduction from the USA to Japan resulted in the child never being recovered. The Children’s Rights Council of Japan is not aware of a single recovery from Japan that has resulted from civil legal proceedings, and is only aware of one recovery following the issuance of a criminal warrant against the abductee, this being the case of Dr. Moises Garcia, which can be found here: http://crcjapan.wordpress.com/2012/06/17/japanese-courts-grant-custody-to-u-s-father-in-moises-garcia-case/ (About the Childrens Rights Council of Japan, http://www.crcjapan.com/)

In conclusion it is therefore undeniable that Japan joining the 1980 Hague Convention is a decisive and commendable step in the right direction. However with the convention being non-retrospective in Japan the step is arguable reduced to a significant shuffle. I see this remaining a debated issue and one of some contention. A further positive point is arguably the increased pressure that now applies to those countries that remain non-compliant with the convention.

Articles of interest in regard to this matter, should you wish to read further are listed below:
Behind Japan’s Ratification of the Hague Abduction Convention by Kamoto Itsuko: http://www.nippon.com/en/currents/d00079/

Japan to finally be compliant with Hague Convention on child abduction in April 2014 by John Hofilena: http://japandailypress.com/japan-to-finally-be-compliant-with-hague-convention-on-child-abduction-in-april-2014-2338345/

Children’s Rights Council of Japan: http://www.crcjapan.com/

Numerous articles on Japanese Child Abduction from the International Association for Parental Child Reunion: http://www.iapcr.org/

Japanese Foreign Ministry’s international child abduction statistics published: http://crcjapan.wordpress.com/2011/06/07/japanese-foreign-ministrys-international-child-abduction-statistics-published/

Transparency and The Publication of Judgements in the Family Court and the Court of Protection.

2588362220_5b8879d958_mAs I sat at my desk today I was surprised to see it beginning to snow outside, it was only for a few minutes and it didn’t stick, but it was snowing all the same. When I left the office to go for lunch I could tell why, it was bitterly cold outside and the sky was threatening to unleash an almighty downpour.  I made a quick dash to the shop for a Sandwich, which I decided to have at my desk in order not to risk being caught out in a snow storm.

Whilst eating my lunch I take a quick read of a guidance note entitled Transparency in the Family Courts, Publication of Judgments, published by Sir James Munby, President of the Family Division. The guidance was issued on the 16th January 2014. The opening paragraph states that the ‘Guidance (together with similar Guidance issued at the same time for the Court of Protection) is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.’ Sir Munby stated that ‘In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).’

It is thought that this guidance is the beginning of a number of changes within the system with the aim of achieving greater transparency within the system. Within the Family division the guidance applies to both the High Court and the County court. In both the Family Courts and the Court of Protection the guidance is focused on both judgments that would ordinarily be published and those that could be considered to publishable. Those that would ordinarily be published include those where the judge concludes that it is in the public interest to publish the case and would take in to account whether or not a request has been made by a party or the media. In the case of Family Court proceedings it would include hearings such as those where allegations of significant physical, emotional or sexual harm, have been determined; those where a final care order has been made or refused; and those where an adoption order has been made or refused. In the case of Court of Protection hearings it would include applications such as those for the giving or withholding of medical treatment; and for the deprivation of liberty. Those that may be considered publishable would in both courts be judge publishable if the judge decides that permission for the judgment to be published should be given and that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication.

Within the Family Court anonymity within the judgement will be decided by the appropriate solicitors but in the Court of Protection, if anonymity is not already present in the case, it will be decided by the judge. According to the guidance, ‘in all cases where permission is given for a judgment to be published, the version of the judgment approved for publication shall be made available, upon payment of any appropriate charge that may be required, to any person who requests a copy’. Further the court shall, in all applicable cases, as soon as reasonably practicable be the full transcribed judgment on the BAILII website.

The full guidance papers on both the Court of Protection and the Family Court can be found through the below links, for those of you interested in reading further.

And on that note I am off home, hopefully the downpour has either passed, or will hold off long enough for me to get back to the warmth of my flat.

Links:

Family Court: http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf

Court of Protection: http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/transparency-in-the-cop.pdf

Photo by Eric E Johnson via Flickr under a Creative Commons license

A seven month old baby boy and Surrogacy: finances and the inconsistencies between policy and law.

444136053_7bc46343e4_mToday has been an interesting day here at the office. I arrived back from Court at around twelve o’clock and then spent the afternoon working on some of the ongoing cases I am involved in. The areas of work I was able to experience this afternoon were particularly enlightening. I really do love my job, the work I do is great because it allows me to constantly challenge myself and to learn.

Last night as I sat eating my dinner I read the case of Re C [2013] EWHC 2408 (Fam). This case concerned a seven month old baby that was conceived following a surrogacy arrangement entered in to through a surrogacy agency in the United States of America.  The Application was for a parental order under s.54 Human Fertilisation and Embryology Act 2008. In this case there had been a number of payments made over a period of time including $85,000 to the respondents in the case (the surrogate and her husband) a large portion of which was said not to reflect expenses; an agency fee which is allowed within America but a portion of which would have been for profit; and a payment of $28,195 for medical treatment which included $6,000 to the egg donor.

Mrs Justice Theis stated that in regard to ‘the s.54 criteria, I can take the criteria set out in s.54 (1) to (7) relatively quickly as there is little issue about them. Firstly, there needs to be a biological connection between C and one of the applicants and that C was carried by a woman who is not one the applicants as a result of the placing in her of an embryo using the gametes of at least one of the applicants.  The letter from Dr. H confirms A’s genetic connection to C and that C was carried by the first respondent, following the placing in her through the IVF procedure an embryo created using the gametes of A. The second matter is the status of applicants’ relationship.   They have been in a relationship for ten years and were married on 29th August 2005.  The third matter is that the application must be issued within six months of C’s birth.  He was born on [a day in] December 2012 and the application was issued in early March 2013, so within six months. The fourth matter is that C should have been in the care of the applicants at the time the application was made and at the time when the court is considering the order, and that at least one of the applicants is domiciled in this jurisdiction.  The applicants assumed C’s care almost immediately following his birth in the United States, and they returned to their home with him in this jurisdiction on 14th February 2013. He remains in their care in the family home.’ (Full judgement as reported on Family Law Weekly, http://www.familylawweek.co.uk/site.aspx?i=ed115568). She went on to state that both the applicants were domiciled in England in that A was born in Yorkshire and his domicile had not changed and that the B, whilst being born in Hong Kong, had lived in England since 1971 and thus her domicile had changed to that of a domicile of choice in England. Further Mrs Justice Theis stated that both the applicants fulfilled the age criteria, being over the age of 18 years.

Following this Mrs Justice Theis dealt with consent. Mrs Justice Theis states that consent was given within the applicable six week time frame; that the notarised document detailing consent in the bundle handed to the court complies with rule 13 of the Family Procedure Rules 2010; and there was also a pre-birth order made in America prior to the original surrogacy agreement. Thus the only fact left to deal with would be that of no money or benefit, other than that required for reasonably incurred expenses, had been made unless authorised by the court under s.54(8) HFEA 2008. Obviously the above figures appear to go against this. However, Mrs Justice Theis dealt with each figure in turn. In relation to the $28,195 for medical treatment minus that for the egg donor, the applicants stated that this was not caught by s.54(8) because should it have been incurred within England it would have equated to a permitted expense, Mrs Justice Theis agreed. In relation to the $6,000 the applicants submitted that this did not fall the ambit of s.54(8) in that the egg donor was not legally the mother of the child under English or American law and if the pregnancy had been unsuccessful s.54(8) would not have been applicable anyway.  Mrs Justice Theis allowed this argument and agreed.

Therefore, Mrs Justice Thesi was left with the $51,200 which fell within the ambit of s.54(8). The court considered the figure in its totality as it was impossible to separate any reasonable agency fees from the amount. The issues to be considered were whether or not the sum paid was disproportionate to reasonable expenses; the applicants had acted in good faith and without moral taint; and if the applicants had been party to any attempt to defraud the authorities. Mrs Justice Theis came to the conclusion, after consideration of the factors that the sums paid were not disproportionate to the reasonable expenses. She states that ‘they did not overbear the will of the surrogate and were not of such a level to be an affront to public policy. They were payments permitted in the jurisdiction in which they were made, and are not too dissimilar to payments made in similar cases.’ (Full judgement as reported on Family Law Weekly, http://www.familylawweek.co.uk/site.aspx?i=ed115568)

Finally, Mrs Justice Theis considered the welfare of the child under s.1(4) Adoption and Children Act 2002 (ACA 2002). The Courts paramount consideration here is the long term welfare of the child. The Parental Order Report stated that ‘C is living in a home environment where he is cherished and loved. There are no concerns that he is at risk… and, in my view, it is in his best interest to remain…’ Mrs Justice Theis, after considering the welfare checklist, came to the judgement that ‘C’s lifelong security and stability can only be met by the making of a parental order which will secure his relationship with the applicants long term and that is the order which I am going to make.’ (Full judgement as reported on Family Law Weekly, http://www.familylawweek.co.uk/site.aspx?i=ed115568)

In making her decision Mrs Justice Theis authorised one of the highest amounts ever paid to a surrogate. In coming to her judgement Mrs Justice Theis for the first time bridge the gap and cleared the fog between egg donation and surrogacy law and policy within the UK.

For the full case report please visit: http://www.familylawweek.co.uk/site.aspx?i=ed115568

Photo by Pamela Machado via Flickr under a Creative Commons license

Changes in Child Maintenance Calculations and how they affect you.

2342578485_528c342f0a_mOkay, so let’s talk Child Maintenance. There are a number of the initial questions a Client has when instructing a solicitor to deal with their child matter and whilst these questions vary from case to case most will include: Will I get custody of my child?; Can we arrange contact with my child?; What rights do I have in relation to my child?; and there is one question that will more than likely crop up: ‘how much child maintenance do I have to pay?’. For those of you that don’t know, child maintenance is a sum that the parent who does not care for the child on a daily basis has to pay to the parent who has day-to-day care of the child. If the parents of a child cannot come to an agreement with regard to maintenance they may be able to get maintenance arranged. Previously, this was arranged by the Child Support Agency, however as of the Child Maintenance and Other Payments Act 2008 a new scheme of maintenance was provided for. This Scheme was introduced in December 2012 and replaced both of the existing means of calculating child maintenance: Child Support Agency (CSA) schemes of 1993 and 2003. The Child Maintenance Scheme 2012 was introduced by the Child Maintenance Calculation Regulations 2012. Those currently under the old calculation schemes will be transferred over to the new scheme, unless they can come to private arrangements. This process will hopefully be completed by the 31st December 2017.

The previous two schemes calculated maintenance on the non-resident parents’ net-income; however the new scheme calculates maintenance on the non-resident parents gross-income, as supplied to them by the HMRC. Net-income is your income following deductions such as tax and national insurance. Your gross-income is the income you receive prior to the said deductions. For those of you interested in how the old schemes worked and how maintenance was calculated, please visit the below websites:  http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@benefits/documents/digitalasset/dg_198872.pdf and http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@benefits/documents/digitalasset/dg_198849.pdf.

The 2012 Scheme means child maintenance is no longer administered by the CSA, but is administered by an entirely new body: The Child Maintenance Service and will be worked out in the following way:

1. The individual’s gross income information is received from the HMRC and reviewed yearly to ensure the correct amount of child maintenance is paid.
2. The CMS check for factors that could affect the income figure, such as contributions to private pensions.
3. The CMS then take the correct gross income figure and apply one of the four child maintenance rates:

• Basic applicable if the weekly income is between £200 and £800; or Basic Plus applicable if the weekly income is between £800 and £3,000;

• Reduced applicable if the weekly income is between £100.01 and £199.99;

• Flat applicable if the weekly income below £100 or if the paying parent is receiving certain benefits;

• Nil if the weekly income below £10.

4. The CMS will then look at how many children the non-paying parent is responsible for both with the resident-parent and any other children, such as children with a new partner. They will also check to see if there are any private arrangements between the parents that need to be taken into account.

5. The CMS will then take the child maintenance rate from number three above and use this to work out a weekly figure based on the gross weekly income from number two above. The number of qualifying children in number four above is then taken into account.

6. Finally the maintenance amount will be reduced in accordance with the amount of nights the child or children spend with the non-resident parent.

The above Basic, Basic Plus and Reduced rates are based on a formula found within legislation. The flat rate is currently £10.

The number of children for which the non-resident parent is responsible will alter the percentage that will be deducted from their gross income to pay maintenance. For example if the non-resident parent qualifies for the Basic rate band the percentage of their gross income to be paid in maintenance will be: 12% for one child, 16% for two children, and 19% for three or more children.

It is now possible for the non-resident to get reductions in their child maintenance on the ground of costs of contact, this includes the cost of fuel or train travel they outlay in order to collect the child. This is in addition to reductions for shared care.

The fact that the HMRC is now responsible for informing the CMS as to the appropriate gross income will result in there being a greater reduction in the need for searching beyond the declared income. Previously the CSA have often needed to conduct investigations in to the salary of a non-resident parent. These investigations were often costly and sometimes fruitless. However, all is not lost if the resident parent believes the non-resident parent is not declaring all of their income to the HMRC, because they may be able to ask the HMRC to perform investigations of its own. Further where the non-resident parent has what is called ‘unearned income’ of more the £2,500 per annum, such as income received from rent, dividends or interest, this income can be taken into account via variation.

From the 25th of November 2013 the new scheme was opened to all new applicants and thus it is now applicable to anyone starting a new child maintenance claim. The new scheme, whilst appearing to initially disadvantage the non-resident parent by calculating on the higher gross-income figure, will in fact simplify the process and create a fairer outcome for those paying maintenance. One final point on the matter is to remind those considering child maintenance that it is completely separate and apart from an individual’s claim for spousal maintenance.

For an approximate calculation of child maintenance please visit: https://www.gov.uk/calculate-your-child-maintenance

For further information on the new scheme please visit: http://www.adviceguide.org.uk/wales/relationships_w/relationships_children_and_young_people_e/relationships_child_maintenance/relationships_child_maintenance_2012_scheme/relationships_child_maintenance_eligibility_and_rules/the_2012_child_maintenance_scheme_who_can_get_maintenance.htm

Habitual Residence: Children and Parents.

UntitledWith my first Professional Skills Course completed yesterday I came back to the office today well and truly exhausted. The Course, Financial and Business Skills, operated over three days and culminated in an extremely time constrained exam. By the end of the exam my arm was aching, my head was sore and I was ready for bed. I am told this is the most difficult of all the Professional Skills Courses that you have to take as part of your training contract; however everyone I have spoken to opted to do three non-examinable electives. I, on the other hand, have opted to do the Higher Rights of Audience course which comes with the happy edition of three exams at the end.

In other news upon my return to the office this morning I began to work on an ongoing child matter, which raises the question of jurisdiction. In this particular case the question surrounds habitual residence. Article 3 of the council regulation (EC) No 2201/2003 of 27th November 2003 governs jurisdiction and covers habitual residence. In addition on the 9th of September 2013 the Supreme Court handed down judgement in the landmark case of A (Children) (AP) [2013] UKSC 60. The Court stated that the correct test was the European test for habitual residence of a child set out in both the cases of A (Case C-523/07) [2010] Fam 42, and Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22. This test seeks to identify “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. The case went on to state that “habitual residence is a question of fact and there can be no rule that a child automatically takes the habitual residence of its parents. However, the social and family environment of a young child is shared with its carers; therefore the integration of those persons also requires assessment.” This leaves the area somewhat unresolved.

In marches the case of LC (Children) (No 2) [2013] EWCA Civ 1058. The Judgement in this case was handed down on the 15th January 2014. The Supreme Court ruled that a child can have a separate and distinct habitual residence from that of the parent with whom they live. This cased revolved around four children aged 4, 8, 10 and 13 years. The children’s father is a British national, whilst their mother is a Spanish national. All four children had lived in England until the summer of 2012 when the relationship between the mother and father broke down. At this point the mother took all four children to live in Spain. The Children lived in Spain for four months before visiting their father in England over the Christmas holidays. The father did not return the children to Spain following their visit claiming that the children had expressed a desperate wish to remain living in England. The mother then applied to the High Court for return of the Children. The father resisted this application, stating that the Children had never been habitually resident in Spain and that they did not wish to return. The High Court found in the mother’s favour and ordered that they be returned to Spain. The father and the three eldest children separately appealed against this decision to the Court of Appeal. The Court of Appeal held that the eldest child should remain in England and the case should be remitted back to the High Court in order to consider the return of the younger three children to Spain. This would cause them to be separated from their elder sibling. The judgement from the Court of Appeal can be found here: LC (Children) [2013] EWCA Civ 1058.

The Court of Appeal in making their judgement didn’t consider whether the High Court was correct in its finding that all four children had lost their habitual residence in England and had gained habitual residence in Spain during the four months that they had lived there. With the High Court deciding that the children had gained habitual resident in Spain during these four months, the mother could use EU legislation to seek the return of the eldest child notwithstanding the Court of Appeal decision.  The father and the eldest child again appealed this time to the Supreme Court on the grounds that the High Court had been wrong to find that the children had lost their habitual residence in England during the four months they spent in Spain. The Supreme Court set aside the High Court’s decision in a landmark ruling that stated that a child’s ‘state of mind’ is a relevant factor in deciding where there habitual residence lies, thus by implication stating that it is possible for a child to a different habitual residence from that of the parent with whom they live.

Marilyn Stowe also covered the matter in her blog, the article can be found here: http://www.marilynstowe.co.uk/2014/01/15/supreme-court-says-children-can-have-legal-residence-separate-from-their-parents/

Family Law Week reported on the case and their report can be read here: http://www.familylawweek.co.uk/site.aspx?i=ed126775

Full judgement in the case of LC (Children) (No 2) [2013] EWCA Civ 1058 can be found here: http://www.familylawweek.co.uk/site.aspx?i=ed126774

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Who we are

The Stowe Family Law trainee blog has been going for a couple of months now, so it’s about time we talk a little bit more about our three aspiring solicitors and contributors Zoe, Becca and Hayley.

Hayley Crossman

Our newest contributor Hayley Crossman studied Spanish at the University of Leeds. She also spent a year in Alcala de Henares on the outskirts of Madrid where she studied Spanish language , literature and modules in Spanish law. Hayley then went on to complete her Graduate Diploma in Law at the College of Law in York and is currently studying for her Masters in Childcare Law and Practice at Keele University. Hayley gained an interest in family law whilst working for the Children’s Workforce Development Council and the private family law team at the Department for Education. And when not working, she’s out training for her next marathon or baking.

Zoe thumbnail

Zoe White graduated from the University of London with a BA in English Literature in 2010, and went on to the University of Glasgow for an MA. She was then awarded a Graduate Diploma in Law (with a distinction) from the University of Staffordshire and followed to complete her Legal Practice Course at BPP Law School in Manchester (with a distinction in Family Law). While studying for her Graduate Diploma in Law she wrote a paper on An evaluation of the system of child protection in the UK in light of cases such as ‘Baby P’ and ‘Climbie’.

And when Zoe isn’t at the office she’s reading a book, enjoying a long run or working on her martial arts skills.

Becca123

Becca Shenkin read law at the University of Leeds. As well as working, she is currently studying for the Legal Practice Course at the University of Law in Manchester. Outside of work and university, Becca volunteers for an organisation which helps children whose parents are going through a divorce, allowing her to see the effects of divorce on children. As part of her LPC she is also able to undertake pro bono work at the Legal Advice Clinic.

Mediation- yay or nay?

cakeThe Children and Families Bill 2013, which is aimed to be completed this year, has recently been modified. The government has stated that they are introducing major changes which are designed to ensure that future separating parents and couples will first consider using mediation to resolve the issues surrounding divorce and separation; rather than going to court.

The Family Justice Minister, Simon Hughes said that “mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontation and stressful experience of going to court.”

The proposed new law seeks to change the process so that a person who wants to apply for a court order about a children or financial matter must first attend a mediation information and assessment meeting (MIAM).

Mediation is the process of an impartial third person assisting couples considering divorce to make arrangements, communicate better, reduce conflict and reach their own joint decisions.

Mediation, on the whole, is a good step forward.  Mediation encourages couples to attempt to settle their disputes as amicably as possible, outside of the adversarial process.

However, I am going to play devil’s advocate (as that’s what we aspiring lawyers like to do best). Is mediation a miracle solution? I suggest not. Robert Dingwall completed a study where he compared those who had attended mediation and those who had not about how they felt about the process. Those who completed mediation were “quite positive” about their experience. This contrasts with those who used a solicitor who were “more positive” and “attached great value” to having a partisan to help them during negotiations.

Yet, mediation can arguably deal with issues surrounding divorce in the least damaging a way as possible for children. And at the end of the day, when children are involved, it is their best interests that should be taken into account.

One main criticism of mediation was that it was unfair to use in a situation where there had been allegations of domestic violence. However, in the new proposals by the government, exemptions will apply where there is evidence of domestic abuse.

Mediation is also a cheaper option than going to court and so the government believes it should be encouraged. So as the title of this blog says: mediation, yay or nay? Evidently the government thinks “yay.” However, mediation is not for everyone and so it will be interesting to see how the new reforms work in practice.

But before I go, I just want to update you all on a very recent case about a woman who sued her solicitors for failing to advise her that divorce would end her marriage. I must say (reluctantly) that I first came across this news on the daily mail (I know, I know- guilty as charged) and did not think it was in fact actually true. But behold, it is. The case, Mulcahy v Castles Solicitors [2013] EWCA Civ 1686, was about a claim against the firm of solicitors on the basis that the claimant should have been advised to pursue judicial separation proceedings and not divorce proceedings. The claim was rejected.  For further information on the case: http://www.familylawweek.co.uk/site.aspx?i=ed126709. For everybody’s benefit I am just going to clarify that, yes, if a couple do divorce their marriage ends as well.

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