FAMILY/CHILDREN: An Introduction to London (Firms)

Family and children law in the UK continues to see a considerable volume of reported cases, with several themes emerging.

Court Proceedings, Non-Court Dispute Resolution, and the Impact of Child Welfare and Domestic Abuse on Fact-Finding Hearings

Despite the prevalence of non-court dispute resolution processes (NCDR), take-up of these options has been limited and many cases continue to end up in front of a judge or magistrate. This may be due to barriers to mediation and other NCDR, such as domestic violence and coercive and controlling behaviour (CCB), being a feature of the case.

Many of the reported decisions over the past year focus on parenting relationships and the welfare of children involving alleged or proven abuse or CCB and/or alleged parental alienation. This has impacted upon the court’s approach to fact-finding hearings and prompted the development of a considerable body of jurisprudence, following decisions in 2022 on this topic. During 2023, there were three decisions in F v M [2023], managed by Hayden J at High Court level, which involved very serious findings of CCB against the father. First, the issue of indirect contact was considered (in the end the father accepted an order that did not give him indirect contact). Second, the judge looked at the removal of parental responsibility acquired by marriage. Third, the judge gave thought to Section 91A of the Children Act, the revised version of Section 91(14) as introduced by Section 67 of the Domestic Abuse Act 2021. This section includes a lower, statutory threshold for the deployment of a Section 91(14) prohibition, which is that the child concerned, or another individual, would be put at risk of harm. Hayden J described this new provision as “transformative”. Practitioners can expect to see a significant rise in the use of this section now that the threshold for an order has been lowered.

The introduction of Sections 65 and 66 of the Domestic Abuse Act 2021 in July 2022 brought in the long-awaited prohibition on cross-examination by perpetrators of victims in family and civil proceedings. Qualified legal representatives (QLRs) – court-appointed representatives – may now conduct the cross-examination. There currently remains a shortage of trained QLRs and this is likely to have a delaying effect on some proceedings.

Further examples of cases involving domestic abuse include K v F [2023] EWHC 680 (Fam) in which Cobb J heard an appeal from a judgment in which findings were made against a father including physical abuse and controlling behaviours and that his drug and alcohol use placed the mother and children at risk of harm. The appeal was dismissed.

One of the most prominent cases of the year involved the use of experts in Re C (“Parental alienation”; Instruction of experts) [2023] EWHC. The appeal, in relation to a refusal of a mother’s application to reopen findings of fact, involved criticism of the judge’s decision to allow evidence from an expert who held herself out to be a psychologist but who was not qualified to give diagnoses. After the Association of Clinical Psychologists (ACP) intervened in the case, M’s appeal was dismissed because the appeal court held that the findings were those of an experienced family judge and not based upon the analysis and conclusions of the expert. The President of the Family Division, Sir Andrew McFarlane, commented that the term psychologist is “open-house” in nature and therefore “potentially confusing”. However, he felt it was a matter for the profession and, ultimately, Parliament whether a tighter regime should be imposed. What may be of further interest to practitioners is the judge’s emphasis on the ACP’s submission that “parental alienation” is not a syndrome capable of being diagnosed but “a process” by which children are manipulated Their submission was that these were matters of fact rather than expert evidence. The President commented that most judges regard the label of parental alienation as unhelpful as the court’s focus should be “the identification of ‘alienating behaviour’”.

Surrogacy Reform 

Elsewhere, the Law Commission of England and Wales and the Scottish Law Commission published their long-awaited surrogacy law reform proposals, “Building families through surrogacy: a new law”, on 29 March 2023. The government’s interim response was published on 8 November. Maria Caulfield confirmed that the government would not be taking the proposals forward due to a lack of parliamentary time. The government is working on its full response, which is due by 29 March 2024. The proposals provide for a new pathway to legal parenthood from birth for intended parents who satisfy certain criteria and safeguards. Importantly, they recommend that the court be permitted to veto a surrogate’s lack of consent where the child’s lifelong welfare requires it, bringing surrogacy law into line with adoption law.

An important case dealing with the question of a surrogate’s consent was seen in 2023: in Re C (Surrogacy consent) (Rev 1) [2023] EWCA Civ 16, the Court of Appeal set aside a parental order as it found that the surrogate’s consent was not given unconditionally. The court underlined the significance of that element of the statute (Section 54(6) of the Human Fertilisation and Embryology Act (HFEA) 2008) which it could not “read down”, in contrast to previous decisions in relation to other aspects of Section 54.

In March 2023, Mrs Justice Theis DBE delivered judgment in X & Anor v Z & Ors [2023] EWFC 41, which considered the question of domicile in Section 54 (4)(b) of HFEA 2008. Both applicants in the case were American and had entered into a surrogacy arrangement with a British surrogate. The question of fact that the court had to determine on the balance of probabilities was whether at least one of the applicants had a British domicile of choice at the time the application was made and at the time the order was made. The judge found that both applicants were domiciled in the UK at the requisite times but noted that it was a finely balanced decision.

In July 2023, Theis J delivered judgment in A v B & Ors [2023] EWHC 1680 (Fam). This case had complex facts involving embryos created in the US using donor eggs, the birth of a child “X” to “A” in a co-parenting relationship with “B”, the subsequent conception of another child “Y” with a surrogate using the same batch of embryos which, under US law, belonged to B. The two children “X” and “Y” were genetic full siblings, but the conception of Y did not involve A, with B entering into a surrogacy arrangement with Mr and Mrs G as a sole parent. Having acknowledged that she would not be a legal parent to Y, shortly before Y’s birth A changed her position and applied for wardship, a parental order and also an application under Section 10(9) of the Children Act for permission to apply for a Section 8 “lives with” child arrangements order on the basis that it was in Y’s best interests that she be considered his mother, just as she was in law for X.

Ultimately, A applied to withdraw her applications for wardship and for a parental order but pursued her applications under the Children Act. The judge gave permission for A to withdraw her applications for wardship and a parental order. The judge refused to give A leave to make Section 8 orders, commenting that A had limited, if any, recognition of the difference in circumstances and consequences of the conceptions of X and Y saying that her application was wholly unrealistic.

In November 2023, Theis J handed down another important surrogacy judgment. In Re H (Surrogacy: Stepparent adoption) [2023] EWFC 214, the same-sex male intended fathers decided to apply for an adoption order instead of a parental order, for which they fully satisfied the criteria. Their reason was that one of the fathers had Italian citizenship and they wanted their daughter to be able to be recognised as Italian and to apply for an Italian passport. They were advised that Italy would not recognise the Parental Order as it relates to surrogacy, which is illegal in Italy, but it would, however, recognise a step-parent adoption.

November 2023 also brought another Theis J decision in respect of the importance of clinics completing the correct legal parentage forms: X and Z (Declaration of Parentage) [2023] EWFC 217. An unmarried couple had conceived in a clinic using donor sperm and, for the man to be the legal parent, the correct HFEA forms needed to be signed before embryo transfer. Following an audit from the clinic they discovered that Form PP (the proposed second parent’s form to consent to being a legal parent where donor sperm is used and he is not married to his partner) was not on the file, although Form WP (the woman’s form consenting to her unmarried partner being a legal parent) was. The application was decided on the papers, the first time such an application for a declaration of parentage has been dealt with without a hearing. The judge was able to make the declaration as she could rely on the various other forms that the parties had completed during their treatment, which satisfied the notice requirements in Section 36-37 of HFEA 2008.