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A reminder of why surrogacy law in the UK needs updating by Bethan Carr

I was delighted to hear this week that US TV personality, Andy Cohen has had a little boy with the assistance of a surrogate in the United States.

This is wonderful news but does highlight the stark differences between surrogacy law in the UK and in the US.

Surrogacy in the US

Andy Cohen will have been recognised as the legal parent of his son from birth; in the first instance, he will have signed a surrogacy agreement with his surrogate before embryo transfer took place.

They would both have had US attorneys representing them, and the agreement will have set out their respective legal positions, each parties rights, roles and responsibilities both during and after the pregnancy.

He will then have gone through a largely administrative court process and been granted either a pre or a post-birth court order. The effect of these birth orders is clarity: they would have assigned parentage to Andy Cohen and removed any rights/obligations the surrogate has in relation to the child she is carrying.

The result of all this being that when Andy’s surrogate gave birth, everyone will have been aware and fully understanding of the fact that Andy was the legal father of his son, and he would have received a birth certificate with his sole name on.

Surrogacy in the UK

By comparison, if Andy Cohen had been a UK intended parent and chosen to go through surrogacy in the UK, he would more than likely have had a much longer wait to find a surrogate. There is a huge shortage of surrogates in the UK and it can take some intended parents years to find someone who is willing and able to help them.

Once Andy had found a surrogate, he would have had the option to enter into a surrogacy agreement, however, unlike in the US, this is not a legally binding document. They are not enforceable, and it is also illegal for a third party, like a solicitor, to negotiate a surrogacy agreement for payment.

This means that surrogacy agreements in the UK are largely based on trust, and leaves many intended parents and surrogates feeling worried about a future disagreement or issues further down the line.

There is then the tricky issue of the birth in the UK; my advice to intended parents is to always have an early conversation with your surrogate’s maternity hospital to ensure they are aware of the background and will be able to facilitate you attending the birth with your surrogate. However, this is not always possible, and hospitals can find it hard to know how to deal with surrogate births as they are often unsure of the legalities which surround this.

The UK legal position is that at birth, the surrogate will be recognised as the legal mother and if she is married, her spouse will be recognised as the child’s second legal parent. If Andy’s baby had been born to a UK surrogate, and his surrogate was married, he would not have been recognised as the legal father immediately from birth and may have had difficulty leaving the hospital with his child. There have been previous stories in the news about hospitals requiring intended parents and surrogates to do a ‘handover’ in the car park as opposed to on hospital property, which can be very distressing and disappointing for all those involved.

Andy would then have been faced with the prospect of applying for a parental order to be recognised as his son’s legal father. While this is not an overly complex process, it is very different to the administrative process we see in the US. It also can take some time, with 6 to 12 months from application to final order not being uncommon. This means that Andy would be left in a limbo period, in which he is caring for his biological son, but with no legal relationship between the two of them, potentially causing difficulties if any medical treatment is required.

Until recently too, he would not have even been able to apply for a parental order, with the law only changing to allow single parents in the UK to apply from early January 2019.

The legal system in the UK needs to change, and I hope that we will soon see a system which offers more protection and clarity to both intended parents and surrogates.

Considering surrogacy? Get in touch

In the meantime, our surrogacy team at Stowe Family Law would be very happy to assist UK intended parents considering surrogacy either in the UK or overseas. We have a wealth of experience and would be delighted to support you with your journey.

You can find out more information on our surrogacy service page, which can be found here or alternatively, please do contact me at Bethan.Carr@Stowefamilylaw.co.uk or call me on 01962 850 408.

The post A reminder of why surrogacy law in the UK needs updating by Bethan Carr appeared first on Stowe Family Law.


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Author: Bethan Carr

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A public health approach to family justice

I was interested to read the other day that the Nuffield Family Justice Observatory has published a report which explores what a ‘public health approach’ to family justice would look like. A new approach to family justice? That sounded interesting. Intrigued, I downloaded and eagerly read the report.

I’m not sure that I am that much wiser. Despite the report being entitled ‘What could a public health approach to family justice look like?’, I have struggled to find a clear answer (in defence of the report’s author I always struggle to read papers of an ‘academic’ nature, so perhaps it is just me!). Still, the following seems to be the gist of the idea.

The first thing to note is that the idea relates to private law children disputes, rather than to the entire family justice system, although the report indicates that it could also relate to public law matters (i.e. cases where the state intervenes in the upbringing of a child).

The central point of the idea seems to be early intervention. In other words, identify those cases where children are at risk of harm as a result of family breakdown. As I understand it this would be done by health professionals and schools flagging up cases (I’m not sure that schools would appreciate such an extra burden being placed upon them), and by Cafcass getting involved in cases earlier.

Once a child at risk of harm is identified, then the appropriate help would be made available, including if appropriate relationship help to prevent family breakdown at all, and help with parenting issues. Other types of help might be to address domestic abuse issues, or to address other problems within the family, such as mental health issues and substance abuse.

In this way, cases could be ‘caught’ before they reach the court system. But where court intervention is appropriate, the idea is that high-risk cases be ‘fast-tracked’, for example by having a time limit placed upon them.

To give just a little bit more detail, the report says that:

“Effective mechanisms for assessment and referral need to be complemented by the availability of a range of services and interventions that have been shown to be effective.  These can range from primary prevention interventions that seek to: prevent problems identified early from escalating; ‘universal’ information and education programmes to promote wellbeing, or tackle underlying causes at source; and restorative or therapeutic interventions that seek to reduce harm once it is experienced.”

The report mentions a couple of programmes that already exist (the Separated Parents Information Programme and the Domestic Abuse Perpetrator Programme), and other programmes in development: a pilot of a more intensive co-parenting programme for parents with more entrenched issues, and a Co-Parent Hub in partnership with the OnePlusOne relationship charity offering online resources to help couples improve their ability to co-parent effectively following separation.

The report concludes that “the family justice system already has, or is starting to build, the essential building blocks that would be needed for a public health approach”. However:

“…even in the health arena we are still learning what an effective approach to developing evidence-based public health interventions in complex systems (which surely include the family justice) needs to look like given the difficulties of randomising trials in whole populations.  The emerging thinking is that we need to be better at asking how an intervention contributes to improving a system, rather than just asking whether it works to fix a specific problem, to make better use of ‘natural experiments’, and to focus on longer term outcomes to which a system contributes.  The answers to these questions require investment in data, and better dialogue to understand how the different parts of the wider system can better connect, suggesting the Nuffield Family Justice Observatory has started down the right track.”

OK, that lost me in the first sentence, but the author seems to be saying that more work needs to be done to determine exactly how a public health approach to family justice should operate.

So what do I think? Well, I’m all for anything that may help to avoid or reduce the adverse effect of family breakdown upon children, and I don’t want to put a damper on this, but I have to say that that I am a little sceptical, in two ways. Firstly, that such a system could actually identify many children at risk in advance of cases going to court, and secondly because the system would require the input of substantial public funds which (as I think the author acknowledges) are likely to be difficult to prise out of government, particularly in these times of austerity.

You can read the full report here.

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Author: John Bolch

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The Perito Moreno Glacier

The face of the Perito Moreno glacier in December 2004

Breaking the ice rules

When I travel, I usually make a conscious effort to avoid having specific expectations. I plan out an itinerary, but I try to maintain a sense of equanimity about the experiences ahead. I like to be surprised—and I like to be able to experience new things in my own way, on my own terms. This sort of attitude has not only saved me some disappointment, it’s also helped me to approach fairly commonplace sights and events with a sense of wonder and delight. As a result—and frankly, without much effort—I found myself feeling neutral, perhaps even a bit blasé, about the prospect of visiting a glacier in Patagonia when we went there back in 2004. I’ve seen ice; what could this be other than a great quantity of it? I expected to be cold, so I packed appropriate clothing. I expected scenic vistas, so I packed my camera. And that was about as far as I thought about it.

Size Matters

The trip to the Perito Moreno glacier took us more than an hour by bus from the town of El Calafate, Argentina. When we rounded a corner on a mountain road and I got my first glimpse of the glacier, I thought, “Wow. That’s really big.” Later, from a much different angle, I realized what a tiny slice of one corner of one end of this glacier I’d seen earlier, and I was overwhelmed at the scale of what I was seeing. As glaciers go, I am told, this is not even one of the larger ones. Yowza. Even though I took dozens of pictures, including some panoramic shots, there is simply no way to capture how big this thing looks in person. No wide-angle lens could do it justice, because it’s not only impossibly wide but tall and long as well. Short of climbing a mountain or flying high overhead, you can’t take in the whole thing at once. So, yes: a lot of ice…but that doesn’t begin to tell the story.

We took a boat across the lake into which the glacier drains, then hiked along the shore to a point near the face of the glacier. There, we were outfitted with crampons for a 90-minute hike on the glacier itself. After about five minutes of climbing on the steep ice, our guides mentioned that it would become much more strenuous from here on, and two members of our group decided to turn back. The rest of us got a good workout, some extraordinary views, and a few surprises.

Like all glaciers, this one begins high in the mountains—in this case, the Andes, which separate Argentina from Chile. At the source, snowfall is nearly constant, and the weight of all this snow compresses the lower layers into virtually solid ice. As the snowfall continues, gravity pushes the thick mass of ice outward—downhill in this case. So a glacier is basically the same as a river, except that the water is frozen. This river moves quite slowly—about one meter per day—from its source roughly 30km (19 miles) away. As it descends, it encounters higher air temperatures and begins to melt. Some glaciers melt into the ocean; this one melts into a lake. The end of the glacier is a sheer wall of ice about 5km (3 miles) long and standing 60m (200 feet) above the water’s surface. When pieces fall off—a process known as calving—they make a tremendous roar and splash.

Stand and Deliver

The Perito Moreno glacier also has several unique features. For one thing, it is, at the moment (according to some experts, at least) the only glacier in the world in a state of equilibrium—neither advancing nor retreating. Retreating is the norm, due to global warming—numerous glaciers have disappeared in recent decades, and many others are shrinking rapidly. The Perito Moreno glacier, however, advances at the same rate ice breaks off, and has done so for many years.

Another unusual characteristic is that this glacier empties into a lake right at the point where two branches connect through a fairly narrow channel. From time to time, the glacier’s face reaches all the way to the outcropping of land on the other side of the channel—sealing it off to create, in effect, two separate lakes. As the glacier continues to melt, the water level in one of the lakes rises at a faster rate than the other, causing significant flooding. Eventually, the warm water melts enough of the ice that an underwater tunnel forms between the lakes; as the tunnel expands, the water levels equalize. Before long, the tunnel becomes more of an underpass for a giant ice bridge; when this inevitably collapses, it’s a spectacular sight. (The last such collapse occurred on March 13, 2018, and the previous several were in 2016, 2012, 2008, 2006, and 2004.) The glacier then advances to block the channel again, and when we visited in December 2004, a small tunnel had recently formed and the water from the higher lake was still rushing into the lower one.

It’s a Floor That’s Also a Dessert

Hiking on a glacier is like hiking on a giant snow cone—the surface is rough, and gloves are mandatory, as you could seriously lacerate your hand if you fell. Although we were not hiking close to the face of the glacier, our guides were careful to point out that the structure was not reliably stable. We had to steer clear of numerous fissures and holes, some of them filled with water and shining with a beautiful but eerie blue glow. We noticed a thin layer of dark sediment on the ice; the guide said this was sand and dust carried by the wind, and that the water itself was the purest you’d find anywhere. This made sense; after all, the ice came from snow that fell many years ago and would not have contained any airborne pollutants—and the ice would have been an inhospitable environment for most microorganisms. “You can drink it,” the guide said. We exchanged puzzled looks at the notion that we could actually drink the glacier on which we were currently standing. I took off my gloves and tried a few sips—incredibly delicious. They should bottle this stuff, eh? Then I noticed that the picture on the bottle of water in my hand looked suspiciously like the mountains directly in front of us. Ah.

Just before we went around the last wall of ice on our way off the glacier, the guide said there was a special treat waiting for us. They’d set up a little table on the ice with complimentary glasses of Scotch for everyone—on the rocks, of course. Yes, those rocks. We didn’t even mind the blatant product placement—it was a delightful treat. We left tired, sweaty, sunburned, and satisfied. And to think: all I had been expecting was a lot of ice!

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on February 21, 2005.


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Author: Joe Kissell

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National Frozen Yogurt Day

Menchie's frozen yogurt with fruit

I like to think we run a tight ship here at Interesting Thing of the Day. We have a master spreadsheet of national/international/world/galactic whatever days (some official, most not), carefully compiled by our staff using a proprietary method that sometimes involves up to a full minute of casual web searching per day. So when the spreadsheet says National Frozen Yogurt Day is on February 6, well, that’s what we put on the site. Except…I could have sworn we already celebrated it back on (checks notes) yep, June 3 of last year. We reasonably jumped to the conclusion that this celebration was supposed to happen in June because said date appeared on a bunch of different calendar sites. However, as further research has shown, the evidence weighs more strongly in favor of today, given that such authoritative sources as the International Frozen Yogurt Association, Yogurtland, and TCBY all say it is. And because lots of FroYo shops are giving out free or discounted frozen yogurt today.

All of which means we are inadvertently responsible for eating—and encouraging the rest of you to eat—frozen yogurt on a day that was not appropriately sanctioned.

Well, I feel just terrible about that, as you can imagine. How will I ever deal with the guilt and shame? Well, I’ll tell you how: I’m going to drown my sorrows in a big ‘ol bowl of frozen dairy product with lots of toppings. I might even have to add an extra cherry in penance.

And, fair warning: this isn’t the last time you’ll read about an ambiguous “holiday” date here—indeed, it’s not even the last time you’ll read about it this month. I just hope there’s enough frozen yogurt to get us through all this uncertainty.

Image credit: Menchie’s Frozen Yogurt [CC BY-SA 3.0], from Wikimedia Commons


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Author: Joe Kissell

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In re marriage of Anka and Yeager

(California Court of Appeal) – Affirmed monetary sanctions against a family law attorney for disclosing information contained in a confidential child custody evaluation report. However, reversed the order for sanctions against the client.


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After the decision is made: navigating your emotional well-being by Lee Lam

In this instalment of Stowe guests, we are joined again by Lee Lam who runs a business consultancy and personal coaching business. Lee works with a variety of different clients, personal and business, as an advisor, consultant and coach through four key programmes.

Lee Lam works with the Stowe office in Esher and today joins us with a follow-up to her article on how to make the decision to move on from a relationship with advice on how to help your emotional well-being once the decision has been made.

A lot of focus is put on your decision, deciding if the relationship can be saved and if not, are you strong enough to do what needs to be done. After that point, there is a void between something finishing and something starting, and you feel in limbo both practically and emotionally. You receive a lot of support or opinions from others but how do you respond?

No-one has the right to know anything

Curiosity about your situation can show as concern or support but you have the right to tell others only what you want them to know. No matter how close they are to you, only you will know the details and it is worth remembering, so you don’t feel overly emotionally exposed. It is important to find your genuine sources of support – these are the ones who don’t ask questions but sit and listen.

Keep your internal self-talk consistent

There will be times when you question your decision – when it gets too hard, or too complex. If you assume that you made the best decision you could at that time, then when you feel yourself wobble, you can bring it back down to the consistent thread of reasoning. Why did I make the decision? What were the circumstances that led me there? Have they changed in a way that makes me want to rethink my decision? This self-talk should not force you to keep to the decision but rather offer you a few questions that check that your decision holds. This is different to panicking and wanting to retreat into the safety of what you knew. This is about calming your self-doubt enough to feel confident that it is still the right decision to make.

What do you want your children to see?

You are a critical role model to your children and during separation this becomes important. They look to the two of you for how to act and behave and how to interpret what is happening in the context of their self-identity. The questions that you are asking of yourselves are the ones that they are asking and finding a way to explore the answers honestly and authentically will help them feel their way. Conversely, seeing yourself as a role model for your children can also help you gain some clarity and confidence over the situation. You find that you have far more resilience and capacity for strength than you may have realised.

Are you triggering other people?

There is always a ripple effect when a change to the status quo happens to your families or friend circles. Because it is forcing a change that others may not want to accept, they try to influence you through guilt. They ask why you are putting yourself /partner /children /family through this. They question whether your relationship was really bad and could it have been salvaged. They ask things that you have been asking yourself and so you can’t dismiss or answer it. But their response is about them, not you. It may be contrary to their beliefs around relationships, marriage or parenting.

Everyone has the right to an opinion, but when that opinion becomes a judgement that is not healthy. It may have shone a light on their own relationship that they are unwilling to acknowledge. If this is someone who you relied on, this is hard. But it is not healthy for you to be around them until they have recognised that the situation is not going to change and that your decision doesn’t have to impact their choices (unless they want it to).

Finding consistency in both your choices and your boundaries helps you and those around you adjust to your new future.

The post After the decision is made: navigating your emotional well-being by Lee Lam appeared first on Stowe Family Law.


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Author: Stowe Family Law

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Wife fails to prevent arbitration award being put into effect

Since 2012 parties to financial remedy proceedings have had the option of having the dispute dealt with in arbitration, rather than by the court (arbitration was subsequently extended to include dealing with children disputes). There are a number of reasons why they may choose arbitration, for example that it is quicker than having the court deal with the matter, as we will see in a moment. However, arbitration does, of course, rely on the critical fact that the parties agree to be bound by the arbitrator’s award, as obviously arbitration would be a pointless exercise if the award was not binding. To ensure that the award can be enforced, it is usually made into a court order.

But what if one of the parties is not happy with the arbitrator’s award?

This was the situation in the recent case BC v BG, in which the wife was seeking an order that an arbitral award not be made into a court order.

I don’t need to go into much detail regarding the background facts in BC v BG. Briefly, the parties started cohabiting in 1998, had two children in 2000 and 2001 and married in 2006. They separated in 2016 and the children live with the wife. Divorce proceedings were issued, and the husband made a financial remedies application in November 2016. The application was listed for hearing in February 2018, but the hearing was ineffective because the case could not be accommodated by the court. It was re-listed for the 10th to the 12th of July, but that hearing was also ineffective, because the judge was unavailable due to sickness. Not wanting to wait several more months for a new hearing date, the parties agreed to go to arbitration.

The arbitration took place on the 11th and 12th of July, and the arbitrator made his final arbitration award on the 2nd of August. He divided the net capital 60:40 in the wife’s favour (in part because the parties, who both needed to rehouse themselves, had unequal mortgage capacities), awarded maintenance to the wife, and made a pension sharing order (which was in the terms agreed by the parties).

The wife was not happy with the award, and so didn’t want it to be made into a court order. She put forward four arguments in support of her case:

  1. That the maintenance award, which was for the maintenance to be reduced over time, meant that she would not be able to raise a mortgage. This was not accepted by the judge – the parties knew that such an award was possible, and in any event it did not necessarily mean that the wife would be unable to raise a mortgage.
  2. That the husband had failed to disclose that his pension contributions were voluntary, not obligatory. In relation to this, the judge found that even if the husband had made this disclosure, it was unlikely that the overall outcome would have been materially different.
  3. That the arbitrator fell into error in his application of the law, by failing to attach proper weight to a declaration of trust that the parties had entered into prior to the marriage, stating that the former matrimonial home was owned as to 58% by the wife, and 42% by the husband. Without going into the technical detail of this, the judge found that the arbitrator had not fallen into error, as the declaration of trust, which had been entered into five years prior to the marriage, was not a pre-nuptial agreement purporting to deal with the division of the parties’ capital upon the breakdown of their marriage.
  4. That the arbitrator fell into error by failing to take into account excessive spending and debts incurred by the husband, as alleged by the wife. The judge did not agree, accepting the arbitrator’s view that these debts did not represent wanton and reckless dissipation of assets by the husband.

In the circumstances the judge held that the wife had failed to satisfy the court that it should not make an order giving effect to the award. The husband was entitled to an order giving effect to the award.

Further to this, and acting as a warning to anyone considering not accepting an arbitral award, the judge made an order that the wife pay the husband’s costs of her application, in addition to her own costs, which amounted to some £21,000.

You can read the full judgment here, and if you require further information regarding arbitration in family cases, see here.

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Author: John Bolch