Z (A Child) (No 2)  EWHC 1191 (Fam) 20 May 2016 – read judgment.
The Court of Protection has granted an order for a declaration of incompatibility with Convention rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination.
This case concerned a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother. The surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law.
Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father’s sole parentage of Z. Following that court order he was registered as Z’s father in Minnesota. The father has since returned to this country, bringing Z with him.
The legal effect of this is that the surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in the UK as being his mother. By the same token, whatever his legal rights in Minnesota, the father has no parental responsibility for Z in this country. The only two ways in which the court could secure the permanent transfer of parental responsibility from the surrogate mother to the father is by way of a parental order or an adoption order. The father would obviously far prefer a parental order. Continue reading →
A and others (In the matter of the Human Fertilisation and Embryology Act 2008) – read judgment
This case is best summed up in Sir James Munby’s own words:
This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.
These cumulative cases
must raise questions as to the adequacy if not of the Human Fertilisation and Embryology Authority’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.
X & Anor v Z (Children) & Anor  EWCA Civ 34 – read judgment
The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test.
Factual and legal background
X’s wife had been found murdered. The police took DNA from the crime scene. Some of the DNA belonged to X’s wife and some was found to be X’s. X was tried and convicted of his wife’s murder.
X’s wife had young children and they were taken into the care of the local authority. During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them. He refused to take a DNA test to prove his alleged paternity. The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test. The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so. Continue reading →
M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors  IESC 60 (7 November 2014) – read judgment
The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.
At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.
The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth. Continue reading →
A Local Authority and M (By his litigation friend via the Official Solicitor) v E and A (Respondents)  EWCOP 33 (11 August 2014) – read judgment
It’s been an interesting week for the extreme fringes of maternal care. The papers report a trial where a mother is being prosecuted for administering toxic levels of medication to her daughter for “conditions that never existed” (as the court heard). Let’s see how that pans out.
And now the Court of Protection has published a ruling by Baker J that a a supporter of the discredited doctor Andrew Wakefield embarked on an odyssey of intrusive remedies and responses to her son’s disorder, fabricating claims of damage from immunisation, earning her membership of what science journalist Brian Deer calls the class of “Wakefield mothers.”
On the face of it, the detailed and lengthy judgment concerns the applicant son’s reaction to the MMR vaccination when it was administered in infancy, and whether it was the cause of his autism and a novel bowel disease, the latter being Wakefield’s brainchild. But at the heart of the case lies the phenomenon that we all used to know as Munchausen’s syndrome by proxy.
J M v. The United Kingdom – 37060/06  ECHR 1361 – Read judgment
The European Court of Rights has declared that rules on child maintenance prior to introduction of the Civil Partnership Act discriminated against those in same-sex relationships.
The events happened nearly a decade ago and the law in relation to same-sex couples has greatly altered since, so it will be of limited relevance to those paying child benefit now. Of more interest is the reasoning of the majority in deciding the case under the right to peaceful enjoyment of property rather than the right to family life.
The case summary is based on the Court’s press release, and is followed by my comment.
It should not be forgotten, however, that Sir Nicholas’ speech was to Families Need Fathers (FNF), a fathers’ rights lobby group – see the Wikipedia entry on the movement’s history.
There are two interesting articles on fathers’ rights in this morning’s Observer, the second of which comments on the speech. FNF is, according to the Observer, “at the forefront of a shift in tone in fathers’ rights – away from the notorious stunts of Fathers 4 Justice, which involved grown men dressed as superheroes unfurling banners on public monuments, towards a professional lobbying approach, deploying reasoned argument and concern for the child.”
Update The president of the family courts, Sir Nicholas Wall, has given a wide-ranging speech to Families Needs Fathers. In it he outlined his own vision for change and also sounded a warning that legal aid in family cases may soon be abolished.
On legal aid, he said “you do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished“. This may not come as a surprise to those who have been following the family legal aid tender debacle. But the practical outcome of a reduction or abolition of Legal Aid will be that when cases do come to court, more will have to be accomplished, and faster, before the money runs out. Sir Nicholas suggests some ways of achieving this.
A v (1) East Sussex County Council (2) Chief Constable of Sussex (2010) – Read judgment
The Administrative Court has held that the removal of a baby from her mother due to fears that she was fabricating symptoms was not a breach of human rights. The court did, however, identify ways in which the situation could have been handled less heavy-handedly.
This case involved a claim under the Human Rights Act 1998 for damages for breach of Article 8 of the European Convention. The Claimant was a young mother who had taken her baby into hospital when she was worried he appeared to have episodes when he stopped breathing. The baby was admitted to hospital and the medical assessment was there was nothing wrong with the baby. The paediatrician was concerned that the mother, having reported incidents that were not observed by medical staff, might be suffering from factitious illness, i.e. that she was deliberately fabricating the symptoms. He alerted social services who held a meeting on 29 December.
This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.
A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.
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