FATHER WINS DECLARATION OF PARENTAGE APPLICATION IN SPERM DONOR CASE

Beverley King, Partner and joint Head of the Family Department at Philcox Gray, recently represented the father of a two year old child on a successful application for a Declaration of Parentage and Child Arrangements Order in respect of contact.

The father had been in a relationship with the mother for some years prior to the birth of the child. The couple had been unable to conceive naturally and received IVF treatment, which concluded with the mother conceiving by sperm donation. As far as the father was concerned the clear intention at the time of the treatment was that he would be the legal parent of the child. All of the necessary forms were signed by both parents at the Fertility Clinic. The couple separated soon after the birth of the child and the father’s contact completely broke down when the child was approximately one year of age.

The father made applications to the court for a Declaration of Parentage and a Child Arrangements Order for regular contact. During the course of the proceedings the mother denied that the forms conferring legal parentage on the father had actually been signed by both of them at the Clinic. The mother effectively wanted to “wipe” the father out of the child’s life and was seeking a declaration that he was not the father of the child. The Clinic were very unhelpful during the proceedings and failed to produce important documents which supported the father’s case despite a number of Court Orders to do so . It actually took the Clinic over 6 months  to disclose critically important documents. It was astonishing that the Clinic did not appear to take the court proceedings seriously until a Court Order with a penal notice attached ordered the Medical  Director’s attendance at a court hearing if there was any further failure to produce information and documents.

The relevant forms were in fact never produced but other evidence was produced by the Clinic shortly before a contested hearing and this evidence proved that the forms had been signed. Without a doubt the Clinic’s limited disclosure of documents until the eleventh hour served to prolong the proceedings unnecessarily and increase anxiety for both the mother and father. Once the relevant documents were received from the Clinic, the mother withdrew her opposition to the father having a Declaration of Parentage in his favour. The Court formalised the parties agreement and made a Declaration of Parentage in favour of the father and also made a Child Arrangements Order in respect of contact. The father re-established contact with the child shortly after his second birthday. Contact is going well and the proceedings are continuing in respect of contact arrangements.

This was a very interesting case in a fairly new area of law. There have been recent high profile cases which exposed the administrative incompetence of some Fertility Clinics. The case of Z Fertility Clinic in 2013, brought to the attention of the Human Fertilisation and Embryology Authority  (HFEA) the shortcomings of clinic Z. Following this the HFEA required all 109 Fertility Clinics to audit their legal parenthood  records. A staggering 46 % of Clinics discovered anomalies in their legal parenthood consent forms. In September 2014 the HFEA wrote to all Clinics and advised them to seek legal advice if necessary and to also inform clients and their partners of the anomalies. All Fertility Clinics should therefore have been tightening up their administrative practices and assisting parents where there were  errors with parenthood forms. The case law clearly states that whatever the administrative mistakes of Fertility Clinics with parenthood forms, the Court can rectify them and make Declarations of Parentage .

This  case was the first to deal with an application for a Declaration of Parentage in  the context of a dispute about contact and where there was clear opposition from the biological parent to the Declaration of Parentage being made.  Unfortunately, the father in this case was very much let down by the Fertility Clinic. There is no doubt that the father would have re-established contact with his child months sooner if there had there  been proper disclosure of documents in a timely fashion. The Judge was very critical of the Clinic. She found it “alarming  and shocking” that there was a further case of this nature before the courts where there was “such striking ineptitude” from an organisation which is subject to statutory regulation and statutory monitoring by the HFEA. Clearly the case was not brought to light by the Clinic in their Legal Parenthood Audit and an investigation of this failing is to take place at the instigation of the Chief Inspector of the HFEA.

Not surprisingly, the Clinic did not oppose an order to pay all of the father’s legal costs in respect of his Declaration of Parentage application.

Read the full judgement by clicking here http://www.bailii.org/ew/cases/EWHC/Fam/2015/3601.html

If you need help or advice with any family  matter, please contact us to see if we can assist you.

Mother Granted Permission to Appeal Care and Placement Orders

Philcox Gray represented a mother in her successful application for permission to appeal a care and a placement order made at Newcastle County Court in February 2015 in respect of her son.

It was submitted on behalf of the mother that the judge failed to adopt the approach required in cases concerning placement orders by failing to follow the guidance of the recent case of Re B-S (children) in that the court failed to consider the effect on the child of removal from his mother’s care and did not set out the basis on which it was considered the mother’s future care would be likely to cause significant harm to the child.  The court therefore did not take the proper holistic approach when considering all placement options for the child nor did it properly balance the options of rehabilitation and adoption.

McFarlane LJ granted permission to appeal, noting the proposed appeal enjoyed “a real prospect of success.”

The Local Authority and Children’s Guardian recognised the arguments put forward on behalf of the mother and Lord MacFarlane’s provisional view of the merits of the appeal, they therefore offered no resistance to the appeal and a rehearing was ordered.

Throughout the appeal process the mother was represented by Philcox Gray who instructed Deirdre Fottrell QC of 1GC Chambers.

If you need help or advice with any family matter, please contact us to see if we can assist you.

Legal 500

The Partners and Staff of Philcox Gray are delighted to confirm the inclusion of our firm in the 2015 edition of the Legal 500. Both the family team and the housing team were listed in this year’s rankings. The inclusion of our firm recognises the hard work and commitment of all of the members of our team.

In the family team, Clare Gaskin was singled out for praise. The editorial comment recorded “Philcox Gray & Co has four Children’s Panel members, and two of its team have higher rights of audience in civil proceedings. Clare Gaskin is a ‘passionate practitioner’”

In the housing team the work done was considered to be in the third tier and it was noted that Ruth Camp had particular specialism in possession and housing disrepair.

If there is a housing or family matter with which we can assist you, please do not hesitate to contact us for help from our acclaimed team.

ENFORCEMENT PROCEEDINGS AVOIDED IN FINANCIAL REMEDY UPON DIVORCE

Darren Francis represented a husband in divorce and related financial matters upon the breakdown of his marriage. The main assets of the marriage included the former matrimonial home in the UK and property in the West Indies, the latter of which the husband argued he owned in his sole name due to inheriting the property some 30 years prior to the marriage. Proceedings were particularly fractious, with the wife asserting that the property in the West Indies was used as a family holiday home during the marriage and therefore was a matrimonial asset. At the final hearing, the Court found in the husband’s favour and deemed that the property in the West Indies was indeed a non-matrimonial asset and the wife had no legal or equitable interest in it. The Court ordered immediate sale of the former matrimonial home and the proceeds split so as to rehouse the parties.

The matter was further complicated by the wife’s continued refusal to vacate the former matrimonial home to effect sale. The wife was informed of the husband’s intention to issue enforcement proceedings under rule 9.24 of the Family Procedure Rules 2010, to request the Court to order that she give up possession of the property so that the sale may proceed. In light of this, the wife decided to comply with the original Final Order and the sale is now proceeding, much to the husband’s relief.

If you need help or advice with divorce and associated financial matters, please contact us to see if we can assist you.

FATHER SUCCESSFULLY DEFENDS RIGHT TO PARENT ‘SURROGATE’ CHILD IN THE UK

Re A v B [2015] EWHC 1562 (Fam)

Philcox Gray represented a father of a child on a successful Defence of an application under the Child Abduction and Custody Act 1985 or Article 11 of Counsel Regulation (EC) 2201/2003.

Pauffley LJ gave guidance on what she had described as “an extraordinary dispute”. The mother is a West African national, living in Germany, the father an English national living in London with his wife who is a West African national. Due to significant medical difficulties, the father and wife were unable to conceive a child of their own. The child was conceived in February 2013. The arrangements for this and where the child would live after birth, having lived for four months in Germany, together with the identity of the main carer for the four months following birth, were fiercely contested.

Both parents had rights of custody, the mother under the German Civil Code; the father as a result of the child’s registration of birth in November 2013. The facts between the parties were significantly disputed. The mother’s case was that she would naturally conceive a child with a father who he would see regularly. The father’s case was that there had been an agreement that the child would live with him and his wife in England, seeing the mother during holidays.

Pauffley LJ considered the principles set out by Lady Hale in the Supreme Court in A v A & Another (Children: Habitual Residence) [2013] UKSC 60 and in Mercredi v. Chaffe (Case C-497/10) [2012] Fam 22.

Pauffley LJ determined that the wife did not relinquish her habitual residence when staying in Germany for 4 months to care for the child after birth because habitual residence may exist in a State which is the home of the family unit of which the infant is part, and where he would be but for force majeure.”

The integration was therefore ruled as being with the father and his wife and the intervention of the Convention for swift return could not be applied.

To read the full judgment click here: http://www.bailii.org/ew/cases/EWHC/Fam/2015/1562.html

An interesting article regarding the case can be found on the The Times Online website (subscription required to read in full): http://www.thetimes.co.uk/tto/law/article4467869.ece and also on the Daily Mail: http://www.dailymail.co.uk/news/article-3120189/Husband-got-wife-s-approval-child-African-woman-usual-way-2-000-wins-right-bring-boy-UK.html

At the hearing, the father was represented by Andrew Norton and Marlene Cayoun of 1 Garden Court, instructed by Natasha Slabas, Solicitor at Philcox Gray.

If you need help or advice with any family matter, please contact us to see if we can assist you.

Re J (a child) EWCA Civ 222

Philcox Gray represented a father of a young child on a successful appeal against a Care Order and Placement Order for adoption.

McFarlane LJ gave guidance on the correct approach to be taken to the threshold criteria by local authorities. Aikens’ LJ view was that this case exhibited many of the shortcomings highlighted by the President of the Family Division in the recent case of Re A (a child) [2015] EWFC 11. Aikens LJ provided a clear summary of the fundamental principles underpinning care cases and in particular adoption cases, including:

  • In an adoption case, it is for the local authority to prove the facts on which it relies and, if adoption is ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare;
  • If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove;
  • In attempting to establish that the threshold criteria have been met, the distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised;
  • The local authority must prove that there is the necessary link between the facts upon which it relies and its case on Threshold;
  • The State must not remove children from their parents’ care simply because facts are established of the parents ‘failings’, be it criminality, alcohol and drug abuse, mental illness or disability. The local authority must demonstrate, in the first instance, that a child has suffered or is at risk of suffering significant harm by reason of one or more of those facts.

The case will now be re-heard.

To read the full judgment click here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/222.html

An interesting article regarding the case can be found on the Family Law Week website: http://www.familylawweek.co.uk/site.aspx?i=ed144503   

At the hearing, the father was represented by Daisy Hughes of 1 Garden Court, instructed by Sheila Donn, Partner at Philcox Gray. Sheila Donn was assisted by Darren Francis and Poppy Bourke.

If you need help or advice with any family matter, please contact us to see if we can assist you.

New Study into Legal Aid changes

The Government “does not understand, and has shown little interest in, the knock – on costs of its [Legal Aid] reforms across the public sector”

The Public Accounts Committee has accused the Government of having made cuts to legal aid without understanding the potential consequences of these cuts. Many of its findings will resonate with those who provide social welfare advice.

In its report published today, on the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) the committee said the Ministry of Justice  (MoJ) is on course to make a “significant and rapid reduction” in spending, but has little idea of whether the £300m annual saving is outweighed by additional costs elsewhere.

The committee chair said it was “deeply disturbing” that changes to legal aid had been pushed through on the basis of “no evidence in many areas, and without making good use of the evidence that it did have in other areas”.  Despite lawyers in the social welfare sector having warned the MoJ about the impact of its cuts to civil legal aid and the increased costs they would create elsewhere, it was not the type of evidence they were willing to listen to. The level of spend seems to have been the critical factor in driving cuts in legal aid.

The report found that the changes in Civil Legal Aid had limited access to mediation for family cases. Mediations for family law matters fell by 38% in the year after the reforms, rather than increasing by 74% as the Ministry expected. The short-sightedness of the Government is made clear in these figures. Despite the MoJ knowing that solicitors were the major channel through which people were referred to mediation, they failed to foresee that removing legal aid for solicitors would reduce referrals.  The report recommends that the Ministry should closely monitor the take up of mediation following the changes it made in April 2014, and should take prompt action if this does not increase as expected. The fall in mediation in family law matters contrasts with an increase in the number of contested family cases reaching the courts. The concern caused by these figures, is compounded by the rise in “litigants in person “in the family courts – especially in cases involving children and the rise in contested family cases.

The report said that the complexity of the justice system is preventing people accessing justice, if they are no longer eligible for legal aid. Recent Government proposals for another significant increase in civil Court fees, including applications to suspend an eviction warrant or set aside an order for possession, are likely to further limit access to justice.

Sheila Donn and Beverley King, joint managing Partners at Philcox Gray Solicitors and Mediators believe that Legal Aid makes a significant difference to families and households, to local area economics, and also contributes to significant public savings. Their experience is that early legal advice prevents problems from escalating into unnecessary and expensive litigation.

 Article by: Philcox Gray Solicitors & Mediators

Article Date: 4 February 2015

Couple are rehoused after refusal to help by local authority delayed the return of their child

A young couple were refused accommodation by Greenwich Council after they asked to be housed in order for their son, who was in foster care, to be returned to them. Redbridge Council had removed their son from their care some 2 ½ years earlier, and the Family Court indicated in September 2014 that the child should be returned to his parents once they were in suitable accommodation.

The couple approached Greenwich Council for temporary accommodation, but were told that the Council did not owe them a duty as their son was not part of their household. No accommodation was offered in spite of the fact that the Council was aware, through the care proceedings, that the child was only still in foster care because the couple did not have appropriate accommodation. In this case, the local authority should have accepted the child as part of the household and offered temporary accommodation. Because this did not happen, the child could not be returned to his parents, and their long wait to have him back with them continued.

David Araya represented the couple in relation to the issue of housing. Following a threat of judicial review made to Greenwich Council, and an Interim Supervision Order made by the Family Court, the Council agreed to house the couple and include their son in the household.

Philip Wilkins of Hudgell & Partners acted for the father in the care proceedings, and worked with David to ensure that the issue of housing by Greenwich Council was resolved. Happily, the offer of accommodation came just before Christmas and the family will now be able to work towards being reunited.

If you have been refused temporary accommodation from a local authority, you may be able to challenge this decision. Please contact us to see if we can assist you.

To read the full judgment click here: bailii.org/ew/cases/EWFC/HCJ/2014/775.html

For a comment on the case from a family law perspective, click here:

suesspiciousminds.com/2014/12/24/section-20-drift

For a comment on the case from a housing law perspective, click here:

nearlylegal.co.uk/blog/2014/12/every-possible-obstacle/

HAPPY OUTCOME FOR MOTHER AND BABY

Isabelle Le Gentil represented a young mother within care proceedings.  The mother, who was herself a minor, and her baby had been placed in two mother and baby foster placements pre-proceedings. The placements broke down due to a number of reasons.  The mother had asked the local authority to be moved from the placement.  Mother had explained to the local authority the reasons why the previous foster placements had broken down but the local authority did not seem to accept her reasons and decided to issue care proceedings. The local authority however agreed to move the mother and her baby to another mother and baby foster placement.

The local authority did not issue care proceedings until two months after the mother and her baby moved to the new mother and baby foster placement.   By then it was clear that mother had engaged very well in the current mother and baby foster placement and both mother and baby were settled there.  Mother was happy to remain at the mother and baby foster placement.  The local authority were seeking additional assessments of mother; these were however opposed by both the mother and the children’s guardian.  In light of this, the local authority decided to withdraw their application for a Care Order.

If you need help or advice within a family matter, please contact us to see if we can assist you.