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A week in family law: Another difficult decision, surrogacy reform, and the demise of a Bill

It has been another relatively quiet news week in the world of family law. Here are my picks for the top three news stories that I came across:

I will begin with another reminder of the sad and extremely difficult decisions that regularly face the judges of the Court of Protection. As he said in the opening paragraph of his judgment in the case A Clinical Commissioning Group v P, Mr Justice MacDonald was “concerned with a decision of the utmost gravity”, namely whether the court should consent to the withdrawal of medical treatment for a patient, that would result in her death. The patient, who is in her late 40s, suffered severe brain damage after taking a heroin overdose five years ago, and medical experts diagnosed her as being in either a vegetative or a minimally conscious state. She was being provided with clinically assisted nutrition and hydration. The NHS Clinical Commissioning Group applied to the court for its consent to the withdrawal of the treatment, a course to which the patient’s family agreed. After hearing the evidence, Mr Justice MacDonald was satisfied that it was in the patient’s best interests to consent on her behalf to the withdrawal of the treatment, a step that he acknowledged would result in her death, and that this accorded with her clearly expressed views before she took the overdose. He concluded: “In all the circumstances, I am satisfied that the sanctity of [the patient’s] life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014.” You can read the full report of the judgment here.

Perhaps the biggest news story of the week was the publication yesterday of the Law Commission’s consultation paper on the reform of surrogacy laws. “The laws around surrogacy are outdated and should be improved to better support the child, surrogates and intended parents” say the Commission, which is proposing to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth. This would replace the current system where the intended parents must make an application to the court after the child has been born, and do not become legal parents until the court grants them a parental order. Sir Nicholas Green, Chair of the Law Commission said: “More and more people are turning to surrogacy to have a child and start their family. We therefore need to make sure that the process is meeting the needs of all those involved. However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.” For more information, see this post here yesterday by Bethan Carr, an expert surrogacy lawyer at Stowe Family Law.

And finally, not really news, and certainly not unexpected, but I have just learnt that Baroness Deech’s Divorce (Financial Provision) Bill has apparently stopped its progress through Parliament. The Bill essentially contained three provisions: that pre- or post-nuptial written agreements between the spouses should be treated by the courts as binding, that ‘matrimonial property’ (essentially, all property acquired after the parties were married, save for gifts and inheritances) should be divided equally, and that the duration of spousal maintenance orders should usually be limited to five years. The Bill is/was due to have its second reading in the House of Commons, but no date has been announced for that. Of course, being a Private Members’ Bill, it was always unlikely to be passed, especially as the Government expressed reservations about it at its second reading in the House of Lords in May last year. If the Bill has indeed been ‘scuppered’, at least until the next time that the Baroness seeks to revive it (she has been pressing for it since at least 2014), then there will be many who will not lament its passing. I wrote here last November about the major concerns that eminent family lawyers have expressed about the provisions of the Bill.

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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