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The Experts: The Times launches its new law blog

Today The Times has launched its new law blog: The Experts. Legal Editor Frances Gibb describes it as:

A blog in which our team of top-name lawyers will give regular comment on the news and developments – from criminal to family, commercial to human rights.

The lineup includes:

  • Shami Chakrabarti, Director of Liberty
  • Judge Stephen Gerlis, District Judge at Barnet County Court
  • Stephen Parkinson, head of criminal and regulatory law at Kingsley Napley
  • Mark Stephens, media, IP and human rights partner at FSI
  • Tony Williams, legal management expert at Jomati Consultants

I am delighted to have been asked to provide the family law commentary.

The Law section on The Times’ website contains a wealth of legal news and information – far more than appears in the newspaper – and has established itself as a useful resource for lawyers, students and clients alike. For the benefit of those who do not subscribe, however, my Times posts will also be published on this blog. My latest contribution to The Experts is below.

The Experts: Should babies be the subject of contracts?

Marilyn Stowe

A game of catch-up is taking place between family law and modern family life.

In the 1960s, the traditional family unit consisted of mum, dad and two children. Today, there can be three or even four parents: biological parents, adoptive parents, step-parents and so on. The law has to keep abreast of these developments but the results are far from perfect. Why? Because we aren’t robots and powerful emotions can take over.

Take surrogacy. It’s perfectly legal, provided it isn’t a commercial arrangement. But if something goes wrong, it can become a legal and emotional minefield. One recent case in the news concerns a couple known as Mr and Mrs W who couldn’t have a child together. They entered into an arrangement with a surrogate mother who conceived a daughter, T, using Mr W’s sperm. As the birth date drew near, the surrogate mother changed her mind. She decided to keep the child.

Within a week of T’s birth, Mr W applied for a residence application. He was too late. In the months that elapsed between the application and the hearing, the bond between mother and child developed.

Earlier this year the case was heard before Mr Justice Baker, who made a residence order in favour of the mother. He criticised Mr and Mrs W for their “alarming lack of insight” as to the importance of the child’s relationship with her mother, noting:

“I am satisfied that the mother would foster contact and a close relationship between T and her father. I am less confident that Mr and Mrs W would respect the relationship between T and her mother were they to be granted residence.”

The couple subsequently relinquished their contact rights, saying it would be too difficult emotionally, and are now protesting about having to pay child support. They are furious with the surrogate, as well they might be, but a baby should never be the subject of a contract.

Now we have a child growing up without its father. Why? Because the parents’ plans didn’t work out. What of the child? Do they really think that she will never know of them, never discover what happened? How will this child cope in the future?

A “baby contract” went badly wrong, and nobody comes out of it looking good. If Mr and Mrs W cannot put that child’s needs before their own, however, I think the judge has made the right decision.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known family law solicitors and divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. ObiterJ says:

    I am delighted to read of your participation in this venture. I am also particularly pleased that you will be posting your items on this blog. The Times paywall is extremely irritating !

    Some 15 years ago I did a course on “Law and Medical Ethics.” It was an interesting course which I did entirely voluntarily and, as part of the “assessment”, I did an essay on Surrogacy. Unfortunately, I cannot find it just now but I recall that it was Mr Justice Latey who warned about the issues people need to consider before going down the “primrose path” of surrogacy. Never was a truer statement made. Interestingly, I think that one of the first recorded surrogacy arrangements is referred to in the Bible.

    Genesis Chapter 16 – “Now Sarai Abram’s wife bare him no chidren: and she had an handmaid, an Egyptian, whose name was Hagar. And Sarai said unto Abram, Behold now, the LORD hath restrained me from bearing: I pray thee, go in unto my maid; it may be that I may obtain children by her.”

    It appears that Hagar did conceive and had to flee from her mistress Sarai. An angel persuaded Hagar to return to Sarai. A son Ishmael was born.

    Hagar’s story is told here.

    The huge problem is that the commissioning parents can have no real interest in how the woman who carries the child will feel. The commissioning parents might even see the surrogate as a mere pawn to be used in their desire for a child. An age-old problem and one to which law does not, and maybe cannot, have an answer. Judges faced with these decisions can only do their best by applying, yet again, the point that the child’s welfare shall be the courts paramount consideration.

  2. Marilyn Stowe says:

    Thank you for your very wise words. Most grateful.

  3. JamesB says:

    I agree with the Judge (and you) on the residency decision.

    I disagree on the lack of discretion and the maintenance awarded. The Monty Pyton song – every sperm is sacred – cannot be that right.

    As per the embroylogy act, a child has no right to a father, therefore the child maintenance awarded in this case is clearly wrong.

    The catch up required is clearly that there should be judges discretion on child maintenance awards. Not having this and having such mandatory punitive award is clearly unfair and bringing the law into disrepute. I agree with the couple in question on that, if nothing else.

  4. Tulsa Divorce Attorneys says:

    That’s great news! We need more quality family law blogs.

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