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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.

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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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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.

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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

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Jeff Bezos and wife end 25-year marriage

Ending a marriage can be an incredibly difficult decision. One is not only severing a relationship, but they are also cutting their belongings in half. For the most part, divorce means splitting their assets in half. However, when one spouse owns a business, this could further complicate the process. Whether or not a premarital agreement is involved, it is often in one’s best interests to take the time to protect one’s business during the divorce process.

As most are probably aware, Jeff Bezos, the CEO of Amazon, is ending his 25-year marriage. Part of what makes this divorce notable is that Bezos is worth nearly $137 billion, causing some concerns regarding how this divorce will not only impact his wealth, but also the company Amazon as a whole.

It is typical for high asset divorces to have a lot more at stake and for the property division process in particular to be very time consuming and charged; however, in this case, this dissolution could result in Bezos selling stock. This ultimately could impact his control of Amazon. For the most part, his assets are linked to Amazon, making it imperative to understand how division of these assets could affect the company.

It was reported that the couple does not have a prenuptial agreement, meaning that they do not have a marital document that outlines property division. With out without this document, however, it is important for divorcing couples to understand the process and what options they have. While divorce is a challenging time, it is possible to navigate it and get out of it alive.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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Now & the future: working with Stowe by CEO, Charles Hartwell

Now

It was with great pride that, last week, three more of our lawyers were awarded Resolution’s specialist accreditation in complex financial remedies and private children law.

Nine of our lawyers now hold specialist accreditation, which demonstrates expertise in achieving the very best results for their client with a conciliatory approach to avoid costly and hostile court proceedings, where possible. It is our ambition to have the highest number of accredited lawyers in the country with more of our team applying each year.

For me, family law at its base level is about two people – a client, and their lawyer. Trust is the foundation of this relationship. The client must trust their lawyer to advise on what is possible, build and deliver a strategy using the most effective approach, that will deliver the best possible outcome. In turn, the lawyer must trust their client to be totally open and honest at all times and to follow their advice. Without this, the relationship simply won’t work.

As Chief Executive, it is my role to have a clear vision for the future of Stowe and to set, execute, and continually refine the strategy to get us there. My vision centres on the client/lawyer relationship and ensuring that we can deliver the very best advice to our clients as we continue to grow as a firm, without ever compromising on quality.

Our strategy is driven by three objectives:

  • First, to create a compelling proposition that enables us to attract and retain the best specialist family lawyers and support staff in the country.
  • Second, to attract a broad range of clients with circumstances ranging from a relatively simple divorce to highly complex cases (often involving high-net-worth clients with complex business and asset structures and international elements).
  • Third, to have a network of offices throughout the country, accessible for our clients, and with an environment that puts them at ease.

To identify the best lawyers, I established an in-house talent acquisition team. They understand the firm’s culture and, as they know all our current lawyers, have a deep understanding of the type of lawyer that will excel at Stowe. This is critical, especially when opening a new office. In fact, I have taken the decision not to open in locations when the talent team have told me that they have not found the right lawyer.

Once we have identified lawyers that we want on our team, we have a compelling proposition to join us. Naturally, we offer a highly competitive remuneration package, but more importantly, we have the culture and supportive environment that enables our lawyers to flourish; giving them the autonomy and freedom to manage their caseload, supported by the latest technology and surrounded by other excellent lawyers under the supervision of our Senior Partner.

The strength of the firm’s brand attracts a breadth of clients to the firm which complements our lawyers’ natural ability to attract clients through their reputation and personal networks.

I believe that it is critical to invest in our lawyers, whether it is supporting them to specialise in an area of family law (such as children, surrogacy, high net worth, multi-jurisdiction), or enabling them to develop their natural approach, be it through Resolution specialist accreditation, mediation, arbitration, or promoting their advocacy skills. I regularly consult with my Senior Partner on new developments in the law and the services we offer have continued to flourish and expand over the last two years and will continue to do so. We will never be a firm that is content to stand still.

Culturally, we are a hard-working, friendly bunch. There are no silos, no closed doors, and no egos, just a group of like-minded professionals striving to be the best they can be and working tirelessly to get their clients the best result possible with minimal stress, disruption, and cost. We have no other disciplines that compete for investment or budgets, and as I feel it is vital to be a true meritocracy, there are no barriers or quotas to promotion – a lawyer is promoted based on ability and ability alone.

The future

Over the coming years, my focus is to build on the successful office expansion programme that now sees us with 18 offices across England and nearly 70 family lawyers. However, we will only ever recruit lawyers and support staff that have the ability, attitude, and approach that my Senior Partner and I believe is good enough for a client of Stowe Family Law.

This is one of the reasons why I only ever open offices from scratch and will not acquire other practices. The best lawyers will usually be spread across a number of firms in the area.

Our blend of exceptional specialist lawyers and high-quality client care will continue to lead the market. Working to deliver our strategy and aims will be important in the years ahead, and I am confident we will make good progress.

We have invested heavily in recent years in our IT infrastructure to ensure that our lawyers have the ability to work in a flexible way, service the ever-changing needs of our clients, and be at the forefront of the law in a digital era.

In times of market and wider change, our focus on the client/lawyer relationship will remain at the heart of what we do. This and our culture of empowerment and enablement will continue to set us apart from other firms both now and in the future.

Charles Hartwell, CEO

@CharlesHartwell

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Author: Stowe Family Law

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Judicial guidance on the exercise of parental responsibility

When parents need to consult about decisions

The other day on Twitter a well-known family lawyer asked for assistance in identifying a case she could not remember. It was on the subject of parental responsibility. Thinking that the case rang a bell in the depths of my memory, I did a search for it. Unfortunately, after half an hour looking I had not found it, so I gave up. Shortly thereafter, someone far more knowledgeable than myself came up with the answer. I thought it might be instructive to share it with you.

Parental responsibility can be a confusing concept for parents to grapple with (it can also trip up lawyers). Part of the reason for this is that there is no definitive list of all the things that come under the umbrella of ‘parental responsibility’. The statutory definition is not particularly helpful, merely informing us that parental responsibility “means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

So it is very useful when one comes across guidance on the subject, particularly when it is from a senior member of the judiciary. The judge in the case was none other than the late and much lamented Mr Justice Wall (as he then was), subsequently to become the President of the Family Division.

The case was A v A, decided in the High Court back in 2004 (hence the difficulty in recalling it). It related to a private law dispute between the parents concerning their two children, then aged 11 and 9. The parents had separated in 1997, and the mother obtained a residence order in relation to both children in the following year.

In 2002 the father issued an application for a joint residence order and a defined contact order (this, of course, was before the age of the child arrangements order). His complaint was that the mother had been making unilateral decisions about the children’s health and education, and marginalising him from those decisions.

OK, I’m not going to go into the detail of the case itself. Suffice to say that Mr Justice Wall concluded as follows:

“This case has been about control throughout. [The mother] sought to control the children, with seriously adverse consequence for the family. She failed. Control is not what this family needs. What it needs is co-operation. By making a shared residence order the court is making that point. These parents have joint and equal parental responsibility. The residence of the children is shared between them. These facts need to be recognised by an order for shared residence.”

And then we come to the footnote to Mr Justice Wall’s judgment, which was the specific thing that the well-known lawyer was looking for. In it, Mr Justice Wall set out a list (not, of course, comprehensive) of the decisions that a parent might take when exercising parental responsibility, with an explanation of whether those decisions should be taken unilaterally, or jointly with the other parent. Here it is in full:

  1. Decisions that could be taken independently and without any consultation or notification to the other parent:
  • How the children are to spend their time during contact
  • Personal care for the children
  • Activities undertaken
  • Religious and spiritual pursuits
  • Continuance of medicine treatment prescribed by GP
  1. Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account:
  • Medical treatment in an emergency
  • Booking holidays or to take the children abroad in contact time
  • Planned visits to the GP and the reasons for this
  1. Decisions that you would need to both inform and consult the other parent prior to making the decision:
  • Schools the children are to attend, including admissions applications
  • Contact rotas in school holidays
  • Planned medical and dental treatment
  • Stopping medication prescribed for the children
  • Attendance at school functions so they can be planned to avoid meetings wherever possible
  • Age that children should be able to watch videos (i.e. videos recommended for children over 12 and 18)

As I say, this is not a comprehensive list, but I think it does still provide useful guidance for separated parents having difficulties in making decisions relating to their children, despite the years that have passed since the judgment was handed down.

You can read the full judgment here.

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Author: John Bolch