Family Law

Family Law Newsletter #0506.12.17

Leeds Christmas Dinner for Care Leavers 2017

Spire Barristers is again supporting the Leeds Christmas Dinner. The Christmas Dinner is an annual project founded by the poet Lemn Sissay MBE for communities to provide a Christmas Day for up to 50 care leavers aged between 16 and 25. This is the THIRD year a Christmas Dinner has been held in Leeds.

Find out how you can help this year.

Case Updates

A Local Authority v B (Children) [2017] EWCA Civ 1635

Court of Appeal: McFarlane LJ (judgment), Thirlwall LJ and Moylan LJ.

The appellant local authority (‘LA’) appealed against a circuit judge’s orders in the family court in care proceedings to place a child (‘B’) with her paternal grandmother (‘G’). The proceedings related to two children, a boy aged nine and a girl aged 21 months.

B and her nine-year-old brother had lived with their parents until intervention led to their removal and placement in foster care due to the abusive nature and inadequacy of parenting. A fact-finding hearing took place and both parents made significant concessions with regard to factual allegations made against them. It was accepted that the boy had been physically abused and it was agreed that he would be made the subject of a care order. B’s position remained in dispute.

On the basis of the findings the LA favoured adoption. The parents and G proposed that B should be placed with G and G was assessed. The assessment identified significant concerns arising from G’s failure to understand the risk to the children posed by their parents. At the hearing, the judge indicated that the issue was between placement with G or adoption. He formed the view that the hearing should be conducted with G being examined first and that he would form a view of her first. The LA challenged the overall fairness of the hearing.

The LA submitted that the cross examination of G had been interrupted by the judge on several occasions and that the Guardian had not had the opportunity to cross-examine her. It argued that the hearing had been on the wrong side of robust case management and the judge had made an early indication that he had closed his mind to the issues arising in the case. It contended that the judge had failed to put himself in a position where he could properly assess B’s welfare interests.

McFarlane LJ, in the handing down of judgment, stated that despite the detailed fact-finding, it was apparent that G had not seen the list of concessions that had been made by the parents until the morning of the hearing. Her understanding of what had gone on in the past had not been properly assessed.

The judge had intervened in robust terms and was unnecessarily adversarial. His intervention indicated that he had formed a positive view of G. The judge interjected to belittle the LA’s presentation of the case and to announce a positive view of G saying that the LA was making no inroads into his view of G.

Although the judge had indicated that he would listen to G’s evidence in full including cross-examination, the Guardian’s view was not put to G or to the judge. Overall the process failed to properly engage adequately with the issues relating to B’s welfare.

There was an inexplicable failure to go through the fact-finding with G to find out how life was for the children before they were removed. The judge made up his mind at an early stage of G’s examination in chief and he made that plain. He was influenced by G and unchecked by any other source. What was needed was a proper evaluation of B’s best interests. The judge’s determination was set aside and the welfare issues remitted to the family division.

Appeal allowed.


H (A Child – Surrogacy Breakdown) [2017] EWCA Civ 1798

Court of Appeal: McFarlane LJ (judgment), Holroyde LJ and Peter Jackson LJ.

A and B were a male same-sex couple; C and D were a heterosexual married couple. The couples entered into a surrogacy agreement in respect of the child known as H. The relationship between the two couples broke down when the surrogate was seven months pregnant. The surrogate couple decided that they would keep the baby. At birth, they registered the baby with their choice of name. The male couple issued proceedings.

An interim child arrangements order gave the male couple parental responsibility and directed that H was to live with them for part of the time. At the final hearing, Theis J took a conventional welfare approach to the unconventional family structure. She concluded that the child’s needs would best be met by the male couple and that H should live with them full-time.

Theis J criticised the surrogate couple’s conduct during the late stages of pregnancy and post-birth and considered that they had deliberately hindered the male couple’s efforts to establish a relationship with H. She was satisfied that the male couple would promote the child’s relationship with the surrogate couple and ordered contact six times per year.

In appealing, C and D submitted that Theis J had effectively made a parental order and should have striven to provide the child with two homes and four parents. They considered her criticism unjustified and contended that she had treated the case as a “surrogacy gone wrong” rather than a case to be approached on normal principles. The core arguments of their appeal are set out at paragraph 22 of the Court of Appeal’s judgment. The CoA specifically addressed each of those core arguments at paragraph 25 of their judgment with ultimately dismissing the appeal.

First, was the order equivalent to the making of a parental order? The CoA rejected this argument. A parental order was transformative. It left the surrogate with no rights and would not provide for ongoing contact.

Secondly, were having two homes and four parents in the child’s best interests? The CoA answered no. The child’s guardian had advised that it was not. Even without such advice, it would have been obvious that the child needed one secure home base and one couple who could be clearly identified as parents. It was necessary, proportionate, and inevitable that there would be a radical reduction in the amount of time spent in one of the homes. Theis J had accepted the guardian’s contact recommendations, but could not have been criticised had she chosen a lower level of contact. She had repeatedly acknowledged the love felt by all four adults for the child, but had been clear that one of the couples was better placed than the other to negotiate future challenges. That was an important finding which had been open to her on the evidence.

Finally, had Theis J been right to adopt a conventional welfare approach to an unconventional family structure? Yes. The law did not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures. Each case contained different considerations, which the court had to analyse and carefully weigh. The usual welfare principle applied with full force in such cases; the more unusual the facts, the greater the need to keep the child at the heart of the decision.

It was not helpful to draw an analogy with a conventional case of separated parents. The range of family situations was never-ending and the difficult task of identifying the right solution for a particular child was not helped by imposing a template forged in an entirely different context. The instant case involved an experienced surrogate with prior experience, yet arrangements had still gone wrong and triggered a harrowing experience for all concerned. That was the consequence of entering into an arrangement which as not underpinned by a properly supported and regulated framework.

Appeal dismissed.