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Just another day in the family court

Sometimes it seems that there is no escape from family law news and new family law judgments. On Saturday I came across three new cases on the Bailii website, disturbing the peace of my weekend. Still, they did take my mind off another abysmal performance by the England cricket team.

Two of the judgments, both handed down on Friday, had a connection with one another (apart from the fact that they were both handed down by Mrs Justice Theis DBE), and I wanted to mention them here as examples of the different and challenging decisions with which our family courts are faced in the twenty-first century.

The first case was AB v CD (Surrogacy: Time Limit and Consent) [2015]EWFC 12. As that title indicates, this was another surrogacy case which raised issues relating to the time limit for applying for a parental order and the consent of the surrogate mother to the making of the order. As Mrs Justice Theis said at the beginning of her judgment:

“This case raises, once again, difficult questions regarding the law of surrogacy, particularly ones involving surrogacy arrangements made in another jurisdiction. The consequences of what I have to decide is of fundamental importance to the parties and the children, as it concerns orders which determine who the legal parents of these young children are.”

As she went on to say, the case highlights once again the need for those undertaking surrogacy arrangements abroad to take specialist advice:

“Commissioning parents should, at the very least, get an outline of the relevant legal steps they need to take to ensure their position and, more importantly that of any child born as a result of the arrangement, is protected. The cost of that advice is likely to be a minimal expense in the context of the large sums spent on the surrogacy arrangement overall.”

Thankfully, Mrs Justice Theis found that she was able to make parental orders in respect of the twin children, despite the issues raised by the case.

As to the time limit, the application was made more than three years after the birth of the children, whereas it should have been made within six months of their birth. However, Mrs Justice Theis followed the decision of the President last year in Re X, in which he decided that in certain circumstances a parental order can be made even when it is applied for long after the expiry of the time limit. All well and good, although as I have said here before, ignoring a clear statutory limit in this way does make me a little uneasy.

As to the consent of the surrogate mother, this could not be obtained as she lives in India and had not had notice of the application. However, Mrs Justice Theis concluded that her consent was not required, on the grounds that she could not be found after all efforts to locate her had been unsuccessful.

Moving on to the second case, this was X v Y v St Bartholomew’s Hospital Centre for Reproductive Medicine (Assisted Reproduction: Parent) [2015] EWFC 13. The case concerned an unmarried couple who had sought the assistance of a fertility clinic to conceive a child.

A child was conceived when the woman in the relationship became pregnant through the use of donor sperm. The child was born in August 2013 and the couple believed that they were legally her parents. However, it subsequently came to light that certain formalities had not been followed, particularly by the clinic, as a result of which it was not clear that the woman’s partner was legally the child’s father.

The woman’s partner therefore had to apply to the court for a declaration that he was the child’s father. Happily, and without going into the complex technicalities, Mrs Justice Theis was able to make the declaration. However, she made a similar point to the one she made in AB v CD: that any person considering fertility treatment should ensure they are, at the very least, familiar with what legal steps need to be taken prior to any such treatment.

So, two happy endings, but also two cases that demonstrate the diverse nature of cases faced by our family courts, as they grapple with the complexities of modern family life.

Read the judgements here and here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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