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PSL Essential Update – July 2016

Date:1 AUG 2016

We’ve reached the end of another month, with the news dominated by political wrangling after the Brexit vote, and changes at government level. So keep up to date with what’s been happening in the world of family law with our roundup of the month’s legal news.


Surrogacy has been frequently in the news of late – the legal news, at any rate – with a number of judgments being published which deal with the perils and pitfalls of surrogacy arrangements both in the UK and abroad.  This month has seen publication of the judgment in Re Z (Surrogacy Agreements: Child Arrangement Orders) [2016] EWFC 34. The outcome of this case was that a child arrangements order was made providing for the child to remain living with the surrogate mother, with limited contact with the commissioning parents. The judge noted that the commissioning parents had shown an inability to understand the importance of the child’s continuing relationship with his mother and to promote and support it. The commission parents were considered to have shown a disregard for the surrogate mother and her feelings, with the surrogacy agreement having been signed during the first meeting between the parties and the commissioning parents failing to take time to ensure that she understood the agreement. In this case, not only did the surrogate mother not consent to the making of a parental order, it was questionable whether she had a full understanding of the process at any stage.

Criticism of cuts

The government has been criticised widely by the profession for its restrictions on access to justice, from the legal aid cuts to the greatly increasing levels of fees charged in the courts and tribunals. This month the United Nations has stepped in, adding its own criticism and specifically recommending that the UK government review its cuts to legal aid, describing them as excessively limiting the ability of people to seek a fair outcome through the courts, particularly for already disadvantaged and marginalised groups.

Shake-ups in power

It remains to be seen whether Theresa May’s new government and in particular controversial new Justice Secretary and Lord Chancellor Liz Truss will make any moves to address the UN’s criticism of the legal aid cuts.

And the legal world saw its own changes at the top this month when Robert Bourns took over as Law Society President, with Joe Egan taking over as Vice President. Family Lawyer Christina Blacklaws was elected as Deputy Vice President, meaning she will take office as the President of the Law Society in 2018.

Guidance on Financial Needs

The Family Justice Council published its ‘Guidance on Financial Needs on Divorce’ at the beginning of the month. This followed the Law Commission consultation on Matrimonial Property, Needs and Agreements published in February 2014. In contrast to the guidance released for Litigants in Person (Sorting out Finances on Divorce) earlier this year, this guidance is addressed primarily at courts and legal advisers.

The guidance sets out the Law Commission’s overall objective (to meet needs to enable a transition to independence to the extent that is possible in the circumstances) and then examines the justification for meeting needs through financial remedies.

As the guidance itself notes, it is not intended to change the law. Its purpose is to disseminate information about the ways in which the courts’ discretion is currently exercised, and to encourage the consistent use of that discretion in a particular way and (if possible) with a particular objective.

Big money

Judgment was published in the case of Juffali v Juffali [2016] EWHC 1684 (Fam)  this month. The wife had been married to the extremely wealthy Saudi husband for 12 years. Following his pronouncement of talaq in Saudi Arabia, she applied for financial remedies for herself and her 13-year-old daughter pursuant to Part III of the Matrimonial and Family Proceedings Act 1984.

The husband, who was terminally ill, initially defended the application on the basis of diplomatic immunity but that claim was rejected by the Court of Appeal and thereafter he withdrew his challenge to the jurisdiction of the English court.

Roberts J held that it was entirely reasonable for the court to make an award in favour of the wife since she had received no provision from the Saudi court and the family’s connections with this jurisdiction were strong.

The claim was dealt with on a needs basis rather than a full sharing basis. The wife’s claim in respect of her personal requirements was noted to be inflated and unnecessary in the context of an adequate provision for her reasonable needs. However, the husband’s proposal was neither appropriate nor reasonable in the circumstances of this case.

Roberts J awarded the wife overall £62.3m.

Declarations  of Parentage

This month saw another case in the saga of fertility clinics’ procedures.  Previously the President has heard a number of such cases where there have been discrepancies in procedure requiring legal intervention to resolve. This month saw the judgment in Re Human Fertilisation and Embryology Act 2008 (Case M) [2016] EWHC 1572 (Fam) in which the President granted a declaration of parenthood, despite the procedural anomalies. Happily in this case, the President noted that “… in contrast to the clinics in some of the other cases, the clinic here has behaved throughout in an appropriately supportive and responsible manner.”

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