Parental alienation, a surrogacy appeal and… the Duke of Windsor

Family Law|November 24th 2017


I’m sure I’ve said it before, but you really never know what you are going to find amongst the family law reports. Certainly, you would not expect the late Duke of Windsor, aka the abdicated King Edward VIII, to be the subject matter of a recent judgment. I therefore did a double-take the other day when I came across the case Re His Royal Highness the Duke of Windsor (Deceased) on Bailii. Yes, it really was about the Duke of Windsor. In the case Sir James Munby ruled that the seals on the envelope containing the Duke’s will and codicil can be broken, so that copies of the will and codicil can be provided to Oliver Urquhart Irvine, the librarian and assistant keeper of the Queen’s Archives, for research purposes. Giving his judgment, Sir James said that it would be ‘absurd’ to deny the Royal Archives copies of the will and codicil of someone “who was born a royal prince, died a royal duke and was in his time His Majesty the King”. He ordered that one copy of the contents of the envelope be delivered to Irvine and the documents then be resealed. It was probably not the most important case Sir James has dealt with this year, but certainly different.

Parents who try to turn their children against the other parent could lose the children, under a new process to deal with parental alienation being trialled by Cafcass. The process will involve alienating parents being offered a 12-week intense ‘positive parenting’ programme, designed to help them put themselves in their child’s position, and give them skills to break their patterns of behaviour. However, if the alienating parent continues to perpetuate the abuse then they could have their child removed from them and placed with the other parent, and in extreme cases the alienating parent could even have their contact with their child stopped. I give my thoughts on the new process in this post.

The Court of Appeal has dismissed an appeal by a surrogate mother and her husband against an order limiting the role that they should play in the life of a child she gave birth to. The facts of the case were that the mother agreed to carry the child on behalf of a male same-sex couple, the embryo having been created from the couple’s sperm and a donor egg from a Spanish egg donor. Unfortunately, the surrogacy arrangement broke down and the mother and her husband indicated that they would not hand over the child to the couple. The couple then commenced legal proceedings, and Mrs Justice Theis ordered that the child should live with them. The mother and the husband did not appeal against that decision, but did appeal against orders made by Mrs Justice Theis limiting their contact with the child and the exercise of their parental responsibility in relation to the child. They argued, for example, that Mrs Justice Theis should have striven to provide the child with two homes and four parents. The Court of Appeal did not agree, finding that Mrs Justice Theis had taken a conventional welfare approach to an unconventional family structure – her decisions about where the child should live and about the role that should be played by the other family were ones that she was entitled to reach on the evidence before her. An interesting case demonstrating, as Mrs Justice Theis said in her judgment, the consequences of our not having in this country a properly supported and regulated framework to underpin arrangements of this kind.

A husband has failed in an attempt to have his wife’s solicitor barred from acting for her in divorce proceedings on the basis of a conflict of interests. The husband had arranged for his representative to consult no fewer than six firms of solicitors, allegedly with the sole intention of deciding which firm he should instruct. When the wife subsequently instructed one of those firms the husband applied to the court for an order barring them from acting for her, as confidential information about him had been passed to the firm, and there was therefore a conflict of interests. However, the High Court held that the husband had his representative consult the solicitor at least in part so that the solicitor would be ‘conflicted out’ of representing the wife. In any event, there was no conflict of interests, as no confidential or privileged material relevant to the divorce proceedings was communicated to the firm. Well, it seemed like a good idea…

Enjoy your 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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