Category: Children

On the face of it, the father’s two objections to the mother’s application for the return of their son to Turkey in the recent case K (A child : Hague Child Abduction Convention) seemed to have some merit. However, the court still ordered the return.

The background facts of the case were, briefly, that the mother is Turkish and the father has dual Turkish/British nationality. The parties met in Turkey in 2006 and married in 2007. Their son, ‘K’, was born in Turkey in 2007 and was eleven years old when the mother’s application was heard by Mr Darren Howe QC in the High Court last July (as with many child abduction cases, the report of the judgment was only published much later (last week on Bailii in this instance), possibly to ensure that the return had taken place before the publication).

The parents first separated in 2016, but there was then a reconciliation. The father left Turkey in October 2016 and relocated to England. There was some dispute as to whether he relocated with the intention of the remaining family members joining him, but this was not a matter upon which the judge had to adjudicate.

The mother and K remained in Turkey. By April 2017 the marriage had finally broken down.

In September 2017 the mother arranged for a paternal family member to collect K from Turkey and take him to England for an agreed holiday with his father. K flew to England on the 9^th of September and was due to be with the father for a week. That was then extended for a second week, and K was to return by no later than the 23^rd of September.

I will not go into the detail of what happened next, but suffice to say that K was not returned to Turkey. In March 2018 the mother made an application under the Hague Convention for his summary return (she claimed that she had not made the application earlier, as it was not until January 2018 that she knew of the Convention).

The father accepted that K was habitually resident in Turkey prior to September 2017, and that his retention of K in England was wrongful within the meaning of the Convention. However, he raised two defences to the mother’s application:

1. That the mother had acquiesced in the father’s retention of K in England. In particular, the father relied upon an email sent to him by the mother on the 23^rd of September 2017 in which she said, amongst other things, that if K really wanted to stay in England, that he could, and that “I will allow you to take K.”
2. That K objected to a return to Turkey, and had attained an age and degree of maturity at which it is appropriate to take account of his views (this latter point was accepted by both parents). The court had appointed a Cafcass officer to ascertain K’s views, and the officer reported that K indicated that he did not want to return to Turkey, giving as his reasons the political situation in Turkey, that he would get a better job in England and that the schools were better here.

All in all, it might appear at first glance that these defences were quite strong. However, the judge did not find them to be made out.

As to the acquiescence defence, he found that the mother had not at any time acquiesced in the father’s retention of K in England. The context of the mother’s email had to be considered. At that time she had not been allowed by the father to speak with K on the telephone. She did not know of her rights under the Convention and was desperately putting forward proposals in an attempt to arrange telephone contact. In any event there was never a concluded agreement regarding K remaining in England, as there never was any contact.

As to K’s wishes, the judge accepted the Cafcass officer’s view that he had been influenced by his father. However, more than that he found that K’s presentation of his wishes amounted to no more than a preference or a wish, and did not reach the threshold of an objection.

Accordingly, the judge made an order directing that K be returned to Turkey forthwith.

The message, I think, from this case is clear. If you are going to succeed with a defence to a Hague Convention application, then your defence really needs to be watertight. The rationale behind the Convention is that a child should normally be returned to its ‘home’ country, and it is for the courts of that country to make decisions about future arrangements for that child. That is what should happen, and only in clear cases will a return not be ordered.

You can read the full judgment here.

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Modern technology can throw up all sorts of new conundrums for the law to grapple with. IVF treatment, for example, has raised the possibility of a child being conceived without the permission of either one of its natural parents. We have seen cases of this before, such as where a widow has sought to use her dead husband’s frozen sperm to conceive a child, or even where a woman has wanted to use her late daughter’s frozen eggs to give birth to her own grandchild.

But what if the child is conceived as a result of a deception? What if a mother conceived a child via IVF after deceiving the IVF clinic into believing that the father consented, when she knew he did not? Would the father then be liable for the costs of the child’s upbringing?

This was the situation in the recent Court of Appeal case ARB v IVF Hammersmith & Another.

The facts of the case were as follows. In 2008 the parents, who were in a relationship, attended an IVF clinic for the purpose of investigating and subsequently undergoing fertility treatment. As part of that treatment a number of embryos were created using the mother’s eggs and the father’s sperm. One of those embryos was implanted into the mother, and she subsequently gave birth to a healthy boy, in the autumn of 2008. Five other embryos were frozen, with the parents’ consent, to await the possibility that they would decide to undergo further treatment.

However, following the birth of the son the parents’ relationship deteriorated, and they separated in July 2010.

Despite this, the mother attended the clinic again in 2010, with a view to using one of the frozen embryos to have another child. In the course of this process a consent form was required to be signed by both parents, confirming that they consented to the procedure. The form was completed by the mother in October 2010. However, the father did not consent – his signature on the form had been forged by the mother.

The procedure went ahead and the mother gave birth to another child, a daughter, in 2011. Family court proceedings took place in relation to the children, and an order was made “confirming parental responsibility and shared residence in respect of both children.”

The father issued proceedings against the clinic for breach of contract, seeking damages for the cost of the daughter’s upbringing. As neither breach of contract nor the law of tort, which was also referred to in the case, is a family law matter, I will not go into the details. Suffice to say that the High Court found that the clinic had committed a breach of contract by thawing and implanting the embryo. However, the judge held that the father could not recover damages for the cost of the daughter’s upbringing, for reasons of legal policy.

The father appealed, to the Court of Appeal.

The primary question for the Court of Appeal to answer was whether the legal policy objection to the father recovering damages for the cost of the child’s upbringing applied. The reasoning behind the policy is essentially twofold: firstly, that it is inherently impossible to quantify how much it costs to bring up a child, and secondly that it is morally unacceptable to regard a child as a financial liability.

Giving the leading judgment of the Court of Appeal, Lady Justice Nicola Davies DBE found that the legal policy did apply. Again, I will not go into the legal details, but those two essential reasons behind the policy were applicable here: that it was not possible to calculate the father’s loss for breach of contract, and that it was morally unacceptable to regard a child as a financial liability. In any event, as Lady Davies said, the father had accepted his share of responsibility for his daughter’s upbringing, and wished to treat her in the same way as his other children.

Having found that the policy did apply, Lady Davies dismissed the appeal. Lord Justice David Richards and Lady Justice King DBE gave concurring judgments.

If you wish you can read the full report of the case here.

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Late last year we worked with the University of Winchester’s brightest law students to submit articles for our blog. This was a chance for them to be published online and boost their online profiles. We received some strong submissions but, in the end, we narrowed the field down and this article, written by Alex May is the winning entry.

Naming a baby

What should we call our baby? The first question for every new set of parents when they discover the amazing news of being pregnant. However, many parents will not know the laws involved in naming their new baby. In most circumstances, the chosen name would not endure any legal consequences.

What is the law in England & Wales?

So, what is the law on baby names in the UK? The short answer… there is not any.

Superman… Gandhi… Arsenal… Bear… they have all been accepted as baby names in Britain.

Registrations of births in England and Wales are made under the Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987, however, the legislation does not set out any guidance on what parents may name their child.

So, how do our relaxed and non-existent naming regulations compare against other countries on an international stage? In Britain, third parties can only become involved in the baby naming process in extreme cases, as long as a name is not offensive and fits in the box on the form it will be accepted. How can this be right when that name becomes a child’s label until they are of a riper age to make a change?

In the age of social media, bullying is now not only practice within schools, but cyber-bullying occurs far too often leaving children isolated and alone, it should then be questioned as to why Britain has little regulation on something that could define a child’s early life from the day they are born.

It must then be said that the judgement of Lady Justice King in Re C (Children) (Child in Care: Choice of Forename) should become an efficient and well use practice to regulate this area. She looked in relation to the child’s sense of identity and self-worth and to her day-to-day life as a child. The name, in this case, would potentially expose the child to treatment which goes far beyond acceptable teasing and therefore she ruled against it.

This judgement demonstrates exactly where the law should develop to, there should be more weight put on the child’s welfare over paternal rights, it should be the child’s future that should decide the acceptance of a name, not the parents right to call their child anything they want.

The law internationally

When compared with the international stage, Britain’s naming laws demonstrate a need for reform. In New Zealand the Births, Deaths and Marriages Registration Act of 1995 s.18 states that it is undesirable in the public interest for a person to bear a name or combination of names if it might cause offence to a reasonable person or it is unreasonably long; or it is without adequate justification.

In contrast, Sweden’s Naming Act 1982 s.34 a first name may not be accepted as being liable to offend or likely to cause discomfort to the person who is to bear it or name which, for some other reason, is obviously not suitable as a first name.

France, the most child friendly naming laws, states in their Civil Code of Persons Chapter 2, Section 1, Article 57 Where first names or one of them, alone or combined appears to be contrary to the welfare of the child the officer of civil status shall give notice thereof to the government procurator without delay [or…] refer the matter to the family causes judge. Where the judge considers that the first name is not consonant with the welfare of the child… he shall order its removal from the registers of civil status.

The need for reform

Subsequently, when looking at Britain on a global scale our stance on baby naming laws is weak and should be reformed. New Zealand is the closest to Britain in terms of its requirements, the welfare of the child is not mentioned at all, but they still have legislation. Sweden and France have the most child-friendly laws and Britain should follow suit, or at the very minimum pass legislation clarifying our exact stance on baby names.

A baby name is one of the most important things in the start of a child’s life as it will be their name for at least 16 years until they can choose to change it by deed poll, but during those first years a child will enter education and be exposed to playground teasing, and an obscure and unique name could lead a child to receive teasing far beyond what is acceptable.

Quintessentially, if something as simple as a stronger emphasis on the welfare of the child eradicates the celebrity-led culture of ‘I want my baby to be different and have a unique name’ then reform should occur. As a unique name may be welcomed by the parents, but in terms of the welfare of the child, some names could have a massive impact on their baby’s future.

The post I shall name him Superman: An international comparison of baby naming law reform by Alex May appeared first on Stowe Family Law.

I’ve said it
here before, but quite often a large part of the job of a judge is simply to
decide which party is telling the truth. And so it was in the child abduction
case AH v AMH F (Summary return of child
to Sudan), decided by Her Honour Judge Hillier in the High Court last
October, but only recently reported on the Bailii website. The case is also
interesting for other reasons, including the weight to be given to the wishes
of the child.

Before
proceeding, I should explain something for the benefit of those who are
familiar with the principles used to decide child abduction cases involving
countries that are signatories to the Hague Convention on Child Abduction. This
case was a ‘non Convention’ case, as Sudan is not a signatory to the Convention,
and when deciding whether or not to order the summary return of a child to a
non-Convention country, the court does not operate by the principles laid down
in the Convention. In particular, the court must follow the principle that the
welfare of the child is its ‘paramount consideration’ (Hague convention cases
are one of the few types of children cases in which this ‘paramountcy
principle’ does not apply).

The case
concerned ‘B’, a boy aged ten, who has both British and Sudanese Nationality.
His mother is a Sudanese National, and his father is a British National, of
Sudanese descent. They married in Sudan in 2007 and B is their only child. B
was born in Sudan, but he and the mother lived for a short period with the
father in the UK. The parents separated and the mother applied to the English court
for permission to relocate permanently with B to the Sudan. The application was
granted, and B and the mother returned to Sudan in September 2009.

It was
agreed that B would return to England to see his father during the summer
holidays once he had reached the age of six. He came to the UK in 2016, but was
retained by his father at the end of the agreed period, and as a result the
mother did not agree to him coming in 2017. She did, however, agree to him
coming to England in March last year (when the school holidays began in Sudan),
although the exact circumstances were disputed by the parents.

The father
maintained that he had no particular intention to keep B here, until he asked
him what he wanted to do. He gave B the option of staying here and getting a
better education and healthcare. B had told him that he wanted to stay here. He
suggested that the mother had indicated that she didn’t mind whether B was
educated in Sudan or England.

The mother’s
version of events was that she agreed for B to stay in England with his father,
but only until the school was due to start again in Sudan, in July. She had
never indicated that she agreed to B remaining in England. The father told her
in April that he did not intend to return B to Sudan, and enrolled B in an
English school, without asking her.

The mother
applied for the summary return of B to Sudan.

Judge
Hillier did not accept the father’s evidence. She found that he had lied about
several things, and had had no intention at all of returning B to Sudan when he
collected him at the end of March. On the other hand, the mother had been
truthful, and Judge Hillier accepted her version of events.

As to B’s
welfare, she found that this would be best served by his returning to Sudan. He
had a much stronger connection with that country, having lived there for the
vast majority of his life. B had indicated a preference to remain in this
country, but Judge Hillier, who had met him, found that he was clearly too
immature for her to give very significant weight to his views, and that he had
been significantly affected by his father, saying what his father wanted him to
say.

Judge
Hillier also expressed concern about the father’s behaviour, which she said demonstrated
his complete lack of insight into his son’s needs. In her assessment, she said, B will
have suffered emotional damage by his father’s unilateral actions, because it was
not a planned consensual move. She found that the mother was able to meet all
of B’s physical, emotional and health needs, whereas the father seemed “absolutely
unable to comprehend his son’s emotional needs”, and therefore could not meet
them.

Accordingly,
Judge Hillier ordered that B should immediately be returned to Sudan.

You can read
the full judgment here.

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As of today, single parents who have had a child born through surrogacy are able to apply for a parental order in the UK, as the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 comes into force. This means that they will be able to be recognised as their child’s legal parent and will extinguish any rights and responsibilities their surrogate had.

This is fantastic news, both for those single parents who decided to go through surrogacy before the law change with the knowledge that they would remain in limbo in terms of their parental status until/if the law ever changed, but also for those single parents who haven’t yet been able to find a surrogate due to the legal difficulties and uncertainty, to whom the door will now be open.

For those single parents who already have a child born through surrogacy, it is important to know that there is now a six-month period in which they can apply for a parental order. This will only remain open until early July 2019, and while it may be possible to apply following this, the application will likely be more complex, and so I would encourage all those who have had a child through surrogacy in the past, whether in the UK or overseas to act now.

We are looking forward to supporting many single parents who have either already had a child through surrogacy or those who are currently planning their surrogacy journey.

If you have any questions at all, or would like to get started, please do get in touch with me at Bethan.cleal@stowefamilylaw.co.uk or on 01962 850408.

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