Family Law Newsletter – April 2024
newsletter
22/04/2024
Welcome
Family Law Newsletter – April 2024; Articles, news, legislation updates and case updates from Care Proceedings, Private Law and Financial Remedy matters.
Edited by Francesca Massarella and Josie Canham-Williams; news and Case Updates by 2024 Pupil Sarah Hutchinson.
Contributors
News
10 years on – How Cheshire West changed the definition of deprivation of liberty:
READ
Data shows growing trend of applications for DoL orders vastly outnumbering applications to place children in registered secure accommodation:
Case Updates
Y and Z [2024] EWHC 649 (Fam)
IN THE HIGH COURT OF JUSTICE, FAMILY DIVISON BEFORE MRS JUSTICE THEIS DBE
Factual Background:
The case concerns the parental legal status of a child, V, born in 2023. V was conceived by Y and Z, a same sex couple, at a licensed clinic (‘the Clinic’) with donor sperm. V’s birth was registered recording Z as her mother and Y as her second legal parent. It was Y and Z’s intention that they would be joint legal parents. In this case, Y signed Human Fertilisation and Embryology Authority (HFEA) Form WP and Z signed HFEA Form PP which was the wrong way around. After an audit at the Clinic this issue was raised which enabled M to be V’s second legal parent.
It was noted that the applicants had signed all consent forms provided to them and that they believed at the time of the embryo transfer in the summer of 2022 that they had done all required of them to be treated as joint legal parents.
The relevant background of the case is outlined at paragraphs 5 to 8 with details of the administrative evidence at paragraphs 9 to 11 of the judgment.
Following directions made by the court on 6 February 2024 notice was given to the Clinic, the HFEA, the Attorney General and the Secretary of State for Health. None of these sought to be joined as a party.
On 14 March 2024, Theis J directed that the hearing listed on 21 March 2024 could be vacated and the application would b e determined on the papers. This procedure, as detailed in Re D and others (Practice: Declaration of parentage) [2017] EWHC 1782 (Fam) at [10], can be adopted in cases where there is no factual dispute and no other potentially interested parties sought to intervene.
This judgment acknowledges that there has been another recent case of where an audit of an HFEA licensed clinic has discovered that the relevant forms had not been completed, resulting in uncertainty about the parental legal status of a child born to individuals undergoing fertility treatment.
Applicable Law:
The relevant law is set out in s43-44 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) which sets out that HFEA Form WP and HFEA Form PP must be completed giving the licensed clinic notice in writing of the parent’s mutual intention that the non-birth parent be treated as the child’s other legal parent.
Where a doubt has been raised about whether legal parenthood has been established this may be rectified by the court. The relevant principles are set out in Re A and others [2015] EWHC 2602 (Fam) at [50] – [52] whereby an alternative non-HFEA internal clinic consent form was accepted as satisfying the statutory requirements.
More recently, the case of A, B and Bourn Hall Clinic [2021] EWHC 1750 (Fam) at [35] – [36] made it clear that documentation which did not explicitly refer to legal parenthood could suffice. In this case it was accepted by Poole J that documents signed by the applicants, when taken as a whole and in the context of their broad understanding that it was possible for them both to be legal parents, could constitute valid consent to legal parenthood.
Conclusion / Judgment:
Consideration was given to the evidence as a whole to determine what the applicants were consenting to when they consented to treatment. It was noted that documents other than the required HFEA Form can constitute a valid notice. In addition, the court determined that parenthood forms signed at an earlier stage can remain valid and relied on in future cycles of treatment.
The also court gave regard to the principle that the court can correct errors in documentation as stated in Re A (ibid) at [63] “where the mistake is obvious on the face of the document.” Finally, in an appropriate case, the court can read the WP and PP Forms completed by the applicants as if they had been completed the other way around as in Re G [2016] EWHC 729 (Fam) at [15] and [16].
The judge concluded that the WP and PP forms signed by both applicants in May 2021 can be read as validly conferring legal parenthood on Y even though they were signed the wrong way around. It was deemed that this conclusion was fully supported by the other evidence of the clear understanding that both Y and Z would be legal parents of any child conceived. A declaration of parentage was made.
X v Y [2024] EWHC 538 (Fam)
IN THE HIGH COURT OF JUSTICE, FAMILY DIVISON BEFORE MRS JUSTICE KNOWLES
Factual Background:
The case refers to a pre-hearing review in financial remedy proceeding in relation to a 15-year marriage which came to an end on 7 June 2022. The final hearing is due to take place in June 2024. There was separate Children Act proceedings listed in March 2024 relating to the parties’ 11-year-old daughter. Both parties had made open offers to each other in an effort to resolve the financial remedy proceedings. Although the parties participated in an FDR in July 2023, which did not settle their dispute, they never engaged in any form of non-court proceedings prior to issuing proceedings. Knowles J described the failure to do so as “utterly unfathomable”. Further details of the background are at paragraphs 5 and 6.
This judgment notes the changes to the Family Procedure Rules 2010 (“the FPR”), due to come into effect 29 April 2024, which will give added impetus to the court’s duty in being active in considering whether non-court dispute resolution is suitable.
Applicable Law:
There is a duty to consider if non-court dispute resolution is appropriate at every stage in proceedings as mandated in rule 3.3(1) of the FPR. Furthermore, rule 3.3(2) states that the court must take into account whether:
- a MIAM (a family mediation information and assessment meeting) took place;
- a valid MIAM exemption was claimed or mediator’s exemption was confirmed; and
- the parties attempted mediation or another form of non-court dispute resolution and the outcome of that process.
Rule 3.4(1)(b) states that adjournment of proceedings or a hearing in the proceedings for a specified period may be appropriate where the parties agree to participate in non-court dispute resolutions. The court may take directions on application of the parties or of its own initiative.
Whilst the FPR does not, at present, give the court power to require parties to engage in non-court dispute resolution, rule changes on 29 April 2024 will promote the court’s ability to encourage parties to do so where natural gaps in proceedings allow. Additionally, amendments to the cost sanctions the court can impose in financial remedy proceedings will take into account conduct relating to failure either to attend a MIAM or to attend non-court dispute resolution.
In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 the court decided that the Civil Procedure Rules (“the CPR”) did not contain a specific power to oblige litigants to use non-court dispute resolution against their will.
The case of Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ highlighted the court’s general powers to compel parties in civil proceedings to engage in non-court dispute resolution. At [61] a variety of matters which the court may wish to take into account when determining whether or not to exercise its discretion to compel parties to engage in non-court dispute resolution were suggested by the Bar Council. Ultimately, the Court of Appeal concluded that it would be undesirable to endorse such a checklist for judges to operate. However, it held that the court did have the power to compel parties in civil proceedings to engage in non-court dispute resolution and/or stay proceedings to allow for non-court dispute resolution to take place.
conclusion / judgment:
The court considered that the decision in Churchill v Merthyr Tydfil at [61] (ibid) is relevant to family proceedings and noted that the management powers of the CPR mirror the active case management powers in the FPR almost word for word.
The court noted that, while the FPR rule changes due on 29 April 2024 do not go as far as compelling parties to engage on non-court dispute resolution, the court will no longer require the agreement of the parties to an adjournment of proceedings to do so. Additionally, in financial remedy cases, amended rule 28.3(7) will make the failure, without good reason, to engage in non-court dispute resolution a reason to consider departing from the general starting point that there should be no order as to costs.
It was acknowledged by the court that “litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children.” The court went further to say that “family resources should not be expended at the betterment of lawyers” when non-court dispute resolution could and should be used to resolve disputes.
The court noted that, if the new FPR rules were in place, this case would have justified an adjournment of proceedings to encourage engagement in non-court dispute resolution. With the assistance of their legal teams, the parties in this case recognised the benefits of trying to resolve their financial dispute by means of non-court dispute resolution ahead of the financial remedy hearing. Given that the financial remedy hearing is not due to take place until June 2024 it was deemed there was adequate time to do so without any adjournment.
Taking into account the very narrow difference between the parties’ respective open offers, the court concluded it would be to their emotional and financial benefit to use non-court dispute resolution to resolve or narrow the issues between them. The judge urged the parties to engage meaningfully in the process.
