I rejoined the Stowe Family Law London office last week at a very exciting time for the firm.
Having spent time practicing commercial litigation and dispute resolution in the millions and even billions of pounds, I am excited to return to legal life as a family lawyer.
But having been away from family law, what did I discover during my first week? First and foremost that I enjoyed meeting real people. Most commercial lawyers will not often meet a ‘client’ when representing companies battling each other over the definition of such abstract concerns as strict contractual liability. But this week I got to meet people in need, with problems that are less clear cut and where the approach to the case can shape and define the outcome. Clients are looking for competent direction from a family lawyer who understands their needs and wants to sort them out as soon as possible – and of course, as cost effectively as possible.
I was also impressed by the complexity of the issues I came across. Perhaps working from central London that is to be expected. But calls were coming in from across the world, as well as from people living and working nearer to home. There were all kinds of enquiries – from potential relocations of children to and from the UK, to financial issues and both pre- and postnuptial agreements. Men and women whose lives had become tangled together and were looking for legal solutions to the issues they now faced. Some of them knew what they wanted wasn’t going to work and I agreed with them. There is no point in sending people down blind alleys on a point of principle. Others, however, didn’t realise that they did have legal options, and were surprised when I told them that actually, yes they did.
Take this situation. I was consulted by a client who is in a same sex relationship. The relationship had become strained. Both of them had wanted children but neither had wanted to marry the other or enter into a civil partnership as they both recognised that it might end badly. They wanted to preserve their individual wealth. They kept their own homes, and spent time with the other as it suited them.
My client’s partner finally decided to have a child. She became pregnant via a sperm donor in a UK-licensed clinic. She told my client only when she was three months pregnant. The child was born. Fast forward three years and here she was discussing the now terminal breakdown of the relationship and wanting to know her legal position in relation to a child she had taught to call her “Mum 2.” There was no biological relationship and no legal relationship. Did she have any entitlement to be recognised as a parent, because as far as she was concerned, that was exactly what she was – and, she believed, the child did too.
Women in a same sex relationship can legally be registered as the parents of a child. However there are strict conditions. If a child is born to a married/civil partnered same sex couple then both mothers or fathers are legally the parents of the child if it was conceived in a clinic after their legal relationship began. If they are unmarried, both must consent to the treatment in a UK clinic (as opposed to an overseas clinic) and sign the relevant forms. Otherwise a partner can only be recognised as a parent of the child if she adopts him or her, irrespective of whether they are married or not (but they must be in a settled relationship). And in this case, the birth mother had not informed her about her pregnancy and refused to agree to adoption. So nothing was possible there.
But that wasn’t the end of the story. There was also the issue of ‘parental responsibility’ to consider. This is defined in law as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has” – make of that what you will. This would normally apply automatically if the parties married or entered a civil partnership. They can also enter into a parental responsibility agreement and lodge it at First Avenue House in London.
Now, under Section 12 of the Children’s Act 1989, even though there is no legal or biological relationship the client can make an application for a child arrangements order and ask the court for the child to either live with her or spend time with her. In such circumstances the court must grant parental responsibility if the child lives with the person applying. Alternatively the Court may grant parental responsibility for the period of time the child spends with them.
This only became possible recently following an amendment to the law introduced by the Children and Families Act 2014. Such an application can also be made by a ‘psychological’ parent who has no biological or legal relationship to the children with whom he is living.
A ‘psychological’ parent is essentially defined in paragraph 2A of the Children Act 1989 section 12 as:
“(a)a person who is not the parent or guardian of the child concerned … a person with whom the child is to spend time or otherwise have contact, but
(b)… not named in the order as a person with whom the child is to live.”
It’s fascinating stuff. I decided to feature this particular case because it’s a complex area of law that should be better known. But ultimately what’s so fascinating about family law is that the legal answer may not be immediately obvious and the ultimate solution may turn out to be something entirely different. Watch this space.
Read more about applying for parental responsibility here.