Hollie Orgee, Irwin MitchellLucie French, St Philips Chambers
YRes West Midlands Children Law Update, 14 April 2016 at St Ives Chambers
Children law matters seem to be particularly at the forefront of people's minds at the moment. After all, if it can happen to Madonna and Guy Ritchie (featuring the Midlands' own MacDonald J), it can happen to us all. On that basis, the sixth annual YRes West Midlands Children Law Update came at the perfect time.
As always, there was an excellent turnout for the event - in fact, it completely sold out! We put this down to the fantastic speakers: Jeremy Weston QC of St Ives Chambers, and Elizabeth McGrath QC of St Philip's Chambers (although no doubt ticket sales were improved by the prospect of St Ives' sausage rolls!).
Attendees were treated to a whistle-stop tour of the recent key cases in both private and public law.
Elizabeth McGrath QC began the seminar discussing developments in private law children matters. Liz firstly explored with us the recent case of Re B (A Child) (Habitual Residence: Inherent Jurisdiction)  UKSC 4,  1 FLR 561
, which concerned a British child removed from the UK to Pakistan by her biological mother. The issue was one of jurisdiction arising out of the question of where the child could be said to be habitually resident. Delivered by the Supreme Court, the judgment marks a shift towards a child-centred approach in relocation cases when determining at which moment the child loses (or gains) habitual residence.
In fact, Liz explains that the courts are now recommending a detailed analysis of all of the facts relevant for the establishment of a child's habitual residence. We were told that Lord Wilson drew the conclusion that the intention of the removing or abducting parent no longer solely determines the loss (or acquisition) of a child's habitual residence. The courts are moving away from Shah
, towards a test which takes into account: the duration of habitual residence; regularity; and conditions and connections of that child, among other things. The Supreme Court counselled in favour of making a list of relevant factors for and against and weighing the case in this way.
In the present case, the points for the disengagement of the child were that the child was removed by her biological mother; she knew she was going to live in Pakistan; she had cultural heritage in Pakistan; and the respondent mother had believed that they would have a better life in Pakistan and had gone to live there 2 months before to look at where they would live etc. The points against the disengagement from the UK were that the child had lived in the UK for 5 years; spoke English and little Urdu; the appellant was the second-most important person in the child's life; they had no knowledge of the removal; and the child had emotional links to the appellant.
In essence, the list against the child's disengagement with the UK was longer; therefore, the court decided that the child was habitually resident in the UK. Liz advised that this was a useful case when advising in others where habitual residence was an issue.
Liz then addressed another relocation case, this time involving internal relocation: Re C (Internal Relocation)  EWCA Civ 1305
,  FLR forthcoming. The court specifically considered the principles to be applied, and the differences as against the court's approach to external/internal relocation.
The mother was currently living with the child in a flat paid for by the father in London, but wanted to relocate to Cumbria where she was from originally. In the first instance, the Recorder made a child arrangements order alternating the child's residence between Cumbria and London.
The father appealed unsuccessfully. The Court of Appeal held that the welfare principle dictates the results in internal relocation cases, just as in external relocation. They said the approach in K v K (Relocation: Shared Care Arrangement)  EWCA Civ 793,  2 FLR 880
applied equally to internal relocation cases and it is necessary to include a careful examination of the parent's wishes and interests.
The court upheld the Recorder's use of the factors indicated in Payne v Payne  EWCA Civ 166,  1 FLR 1052
, where it was of assistance as part of the analysis before determining what was in the child's best interests. Payne
factors were not regarded as prescriptive, but more of a checklist of factors which will need to be weighed when determining the best interests of the child.
Child arrangement orders: supervised contact in principle
Liz then went on to discuss child arrangements orders and the case of Re S (A Child): (Child Arrangements Order: Effect of Long-Term Supervised Contact on Welfare)  EWCA Civ 689
. This was a particularly important case with regards to where the welfare of a child demanded contact with supervision on a long-term basis. The facts of the case were as follows: the father had convictions for downloading pornographic images of adolescent girls. A risk assessment within proceedings identified the father as posing a significant risk to female minors, but a small risk to his son. In the first instance, the judge ordered indirect contact only. On appeal, King LJ (giving the judgment of the Court of Appeal) held that his application had been refused on the basis of a principled objection to long-term supervision contract, but that this was fatally flawed. She noted that, as in Public Law proceedings, there were cases where the welfare of the child demanded contact with supervision on a long-term basis.
Liz then turned to some updates with regards to surrogacy. The matter of H v S (Disputed Surrogacy Agreement)  EWFC 36,  1 FLR 723
concerned a one-year-old child conceived following an arrangement with the fathers, who were in a same sex relationship, and the mother, who was a close friend. The fathers contended that it was agreed that they would raise the child and the mother would play an active role, but the mother argued that it was agreed she would raise the child and the father's partner would play no role in the child's life. The judge found that the mother had made choices about the child's life without consultation, and she had disparaged the men to the child. A child arrangements order was made for the child to live with the fathers (granting parental responsibility to the father's partner). The judge also ordered supervised contact with the mother. It was found that the mother had deliberately misled the men in order to conceive a child for herself, but this was not the aim of the pregnancy and not why the agreement was entered into.Re G (Human Fertilisation and Embryology Act 2008)  EWHC 729 (Fam)
concerned an administrative mistake at an IVF clinic (surprisingly - and worryingly - we were told that this was not uncommon!). A mix-up at the clinic led to the biological mother and the gestational mother signing the wrong forms. The effect of this was that the gestational mother was the twins' legal parent, but the biological mother was not. The President ruled that the biological mother was entitled to the relief sought of a declaration pursuant to s 55 of the Family Law Act that she was, in accordance with s 43 of the 2008 Act, the legal parent of the children.