Brussels II, surrogacy reform and more

Family Law|November 4th 2016

A week in family law

The government has decided to opt in to a European Commission proposal to repeal and replace the Brussels IIA regulation. The regulation establishes rules to decide which EU Member State’s courts can determine divorce and other matrimonial matters, and parental responsibility matters such as residence and contact, and how orders arising from these cases can be recognised and enforced in another Member State. Minister of State for Courts and Justice Sir Oliver Heald said that notwithstanding the result of the EU referendum vote, it was in the UK’s interests to opt into the proposal. The government, he said, “wants to avoid the risk that, if the new regulation comes into force before the UK’s exit, and the UK has not opted in to the regulation, the existing regulation will no longer apply to the UK because it might be deemed inoperable. This might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a member state.”

A surrogacy case has come to a ‘juddering halt’ because a surrogate mother has refused to give her permission to parental orders being made in favour of the biological parents.  In Re AB (Surrogacy: Consent) the High Court ruled that it cannot award legal parenthood to the biological parents of twins born through a UK surrogacy arrangement, because the surrogate who carried them has refused to give her permission, as required under the present law. The case has been adjourned at the request of the biological parents, in the hope that the surrogate changes her mind. The case has led to renewed calls for the law on surrogacy to be reformed and, indeed, the Law Commission has recently announced that surrogacy may be included in their next programme of law reform.

The Court of Appeal has heard an appeal by heterosexual couple Rebecca Steinfeld and Charles Keidan against a judgment dismissing their application for judicial review of the Government’s ban on different-sex civil partnerships. The couple seek the right to a civil partnership, arguing that the present law discriminates against them because it gives gay couples the option of marriage or a civil partnership, but denies the latter to heterosexual couples. Keidan told the Observer:

“A civil partnership would reflect who we are. It’s a modern social contract that doesn’t have the associations of marriage but would give the protection that we and other cohabiting couples crave.”

The judgment of the Court of Appeal is expected to be handed down at a later date. I may be wrong, but I can’t see the appeal succeeding, as I think this is really a matter for parliament. Whatever, I hope the couple eventually get what they are seeking, one way or the other.

Perhaps the biggest talking point amongst family lawyers this week has been the case Re X (A Child), in which the President of the Family Division handed down his third judgment on Wednesday. The case concerns care proceedings in relation to a child who was born in 2012. Shortly after the child was born social services raised concerns and the care proceedings were instituted. In the course of those proceedings the family court found at a fact-finding hearing that the parents had caused a number of injuries to the child. A care order was made, and the child was subsequently adopted. The birth parents were later charged with child cruelty, but after expert evidence was given the prosecution was abandoned and the parents were acquitted. They then sought to appeal against the family court’s findings, essentially on the ground that there was fresh evidence now available. The local authority conceded that the facts should be re-considered, and therefore applied for a re-hearing of the fact-finding. However, the parents have since notified the court that they wish to withdraw from the re-hearing, saying that they did not think it would be right to remove the child from the adoptive parents. Notwithstanding this, the President decided that the re-hearing should go ahead, as he felt that it was in the child’s interests, and the public interest, that “the truth” was ascertained.

And finally, the big baseball story of the week was not that the Chicago Cubs won the World Series for the first time in 108 years, but rather that a divorcing couple went to court to argue over ownership of tickets to one of the World Series games. The husband had the tickets, which had been bought before the divorce proceedings began, and the wife submitted an ‘emergency petition for World Series tickets’ to the court. I wonder what one of our senior judiciary would think upon receipt of such a petition…

Have a good weekend.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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