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A week (or so) in family law: Parental orders, legal aid and more

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February 12, 2024

First things first: Happy New Year!

OK, having got that out of the way, on to the latest family law news. Well, there is not much, actually. For obvious reasons the Xmas/New Year break is usually pretty thin on family law news, and the break just gone was no exception. However, there was one significant piece of news, along with an important debate about the future of legal aid.

The significant piece of news was that the Human Fertilisation and Embryology Act 2008 has been amended to provide that single parents who have had a child born through surrogacy are now able to apply for a parental order. To explain, under the law surrogate mothers and their spouses remain the legal parents of any children. Accordingly, the parents with whom the child is to grow up (i.e. the parents who commissioned the child from the surrogate mother) must apply for a parental order, which transfers the status of parenthood to them. However, until now a parental order could only be applied for by two people, in a relationship akin to a marriage. This situation was declared incompatible with the Human Rights Act by the then President of the Family Division Sir James Munby in a case in 2016, in which a single man was refused a parental order. The amendment to the law remedies the incompatibility. For further information about the amendment and its effect, see this post by Bethan Cleal, who is a solicitor in Stowe Family Law’s Winchester office, and a specialist in domestic and international surrogacy arrangements.

The legal aid debate was sparked by The Guardian newspaper, which ran a series of articles on the topic of the legal aid cuts during the period between Xmas and the New Year. The articles were clearly intended to coincide with the government’s review of the effects of the cuts, and included this account of the experience of a mother, who believes that a lack of legal aid led to her ending up in prison, deprived her of a life with her children, and rendered her homeless. It is hoped that the review, which is due any day now, will recommend that legal aid be reinstated, at least for early advice in family matters. No doubt the authors of the articles hoped that they might encourage the government to make such a recommendation, by making it clear just how damaging the cuts have been, creating a two-tier system for those who can afford legal representation and those who cannot, and even leaving many people effectively without a legal remedy. Of course, the articles didn’t tell us anything we lawyers didn’t know already, but hopefully they will at least have spread the message, thereby putting pressure on the government to take action to at least put right the worst effects of the cuts.

Moving on, I suppose I should mention one piece of ‘news’ that has occupied a few column-inches in the newspapers over the last week: the media has once again engaged in the annual event that is ‘Divorce Day’. I am not going to rehearse here the arguments as to whether ‘Divorce Day’ is a real or manufactured phenomenon, as in a sense it doesn’t matter: either you are involved in divorce proceedings now, or you are not. And if you are, I have set out my three top tips to help you get through, in this post.

And finally, the Law Society Gazette has reported that a former police officer who has set up a venture linking the public with McKenzie friends has said that it is an ‘irrebuttable truth’ that family law does not need lawyers. I knew I was wasting my time when I did all that training, studying all that law and reading all those cases…

Have a good first weekend of 2019.

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, with his content now supporting our divorce lawyers and child custody lawyers

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