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Samantha Bangham’s Week in Cases 7 June 2013

Date:7 JUN 2013
Law Reporter

Samantha Bangham - Family Law Reporter This week brought with it an opportunity for a day out of glorious Bristol to attend the Family Law Reception at the Inner Temple. As ever, it was a very pleasant occasion which enabled Jordans’ staff to meet with a number of the family law contributors, authors and supporters. Back in Bristol a fresh batch of cases was awaiting my return, amongst which, two more instalments of the long-running Tchenquiz-Imerman v Imerman saga.

Few of you will have failed to notice the heavily contested financial remedy proceedings in the Tchenguiz-Imerman v Imerman divorce. This particular judgment, [2012] EWHC 4277 (Fam), [2013] FLR forthcoming, dealt with the issue of joining the husband’s adult children to the proceedings, who were beneficiaries under a number of family trusts, of which the wife sought a variation in order to satisfy her claim. The husband and wife were not beneficiaries under the discretionary trusts which now held a total of £130m worth of assets. The wife put forward a claim, including for assets under the trusts which she submitted were post-nuptial settlements, on the basis of the sharing principle. The trustees, supported by the beneficiaries, had previously applied and were granted approval to not take part in proceedings by the Royal Court of Jersey and the East Caribbean Supreme Court. The husband’s adult children now sought to be joined as parties to the financial proceedings in order to contest the wife’s application. The judge found that the beneficiaries, after supporting the stance of the trustees, now placed themselves in the unattractive position of seeking to be joined themselves. That course was, no doubt, founded on an assumption that enforcement of any order of the English court would be made more difficult if the trustees did not participate. However, for the purposes of FPR 9.26B it was desirable for the adult beneficiaries to be joined as parties to the proceedings which would clearly assist with the investigation and resolution of matters and it would be consistent with the overriding objective. From the court’s perspective it would have been preferable for the trustees to be joined but as they had declined to participate, to join the beneficiaries was the second best course.

As if one judgment from this case wasn’t enough, we also have [2012] EWHC 4047 (Fam), [2013] FLR forthcoming, which concerned the wife’s application for disclosure by the husband of information that he asserted was subject to privilege. The wife claimed that the information contained in certain communications was relevant to the two central issues of whether specific family trusts were nuptial and whether the assets of those trusts were available or likely to be available to the husband. The judge directed the wife to provide a list of communications she sought disclosure of including the company names and dates involved. The claim for privilege would follow the practice as set out in the CPR in that insofar as a claim for privilege was made in respect of any document or class of documents, or a part of a document, then it had to be stated in writing that there was such a right and the grounds on which that right was claimed. Those grounds had to be sufficient to enable the wife to determine whether the right might, or could, be challenged.

Moving on to the field of international adoption, the judgment in Re Z and Z (Recognition of Brazilian Adoption Order) [2013] EWHC 747 (Fam), [2013] FLR forthcoming highlighted the Brazilian mother’s difficulty in bringing her two adopted Brazilian children to the UK where she had been living for some time. The adoption orders were granted 5 years previously in Brazil but the children were denied entry clearance into the UK due to the immigration rules requiring that the adoption was recognised in the UK or was a de facto adoption where the parents had assumed parental responsibility for the children and had lived abroad with them for 18 months. The Brazilian adoption order was not an overseas adoption as specified in Reg 3 of the Adoption Designation of Overseas Adoptions Order 1973 and, therefore, was not an adoption as defined in s 66 of the Adoption and Children Act 2002. The family thereafter were forced to maintain two homes, travelling between Brazil and the UK. The children were eventually brought to the UK as lawful visitors and applications were made for indefinite leave to remain as the mother’s de facto adopted children. At the time of the adoption, although names of the mother and father were initially registered on the adoption orders and birth certificates, the father’s name was subsequently removed in order to comply with Brazilian law which made the father, as a British national, ineligible to adopt. In considering s 57 of the Family Law Act 1986 the habitual residence requirement, while at the outer limits of the court’s discretion on the facts, in particular in relation to physical presence, was satisfied. The mother had intended to make her primary residence in the UK but was effectively stranded when the children were refused entry to the jurisdiction. She had in fact spent only 25% of the previous 12-month period in the UK but she did not have the voluntary freedom of movement to be able to move between the two homes. In addition the UK family home was established for a considerable period prior to the mother being in Brazil and the father remained there while the mother was abroad. The Brazilian adoption was lawfully obtained and valid. The proceedings gave paramount consideration to the children’s best interests and the process was very similar to domestic adoption arrangements in this jurisdiction and there were no public policy reasons why a declaration should not be granted.

Continuing the international theme, J v G (Parental Orders) [2013] EWHC 1432 (Fam), [2013] FLR forthcoming, determined the male civil partners’ application for parental orders in respect of twins born to a surrogate identified with the assistance of the British Surrogacy Centre of California. The American surrogate became pregnant using sperm from one of the men and a donor egg. The men paid her in total $56,750 including $53,000 as a pregnancy compensation fee plus an inconvenience fee for the embryo transfer and an allowance for incidental expenses. The men were awarded paternity orders by the California court prior to the birth enabling them to be named on the US birth certificates. Following the birth the children remained in the full-time care of the men, US passports were obtained and they were permitted a 6-month visitor’s visa enabling entry to the UK while applications for British citizenship were made. The men now sought a parental order pursuant to s 54 of the Human Fertilisation and Embryology Act 2008. On the facts of the case the payments involved were not so disproportionate to the expenses reasonably incurred that the granting of the order would be an affront to public policy nor were they of such a level so as to overbear the will of the surrogate. The men had acted in good faith throughout, had taken all proper steps to comply with the legal parentage requirements in the UK and the USA. In the circumstances the court would exercise its discretion pursuant to s 54(8) of the HFEA 2008 and authorise the payments made other than for reasonably incurred expenses. The paramount consideration of the court was the welfare of the children. The respondents, being the surrogate and her husband, had provided their consent to the orders, were unwilling to care for the children and as a matter of Californian law, were not their legal parents. The judge concluded that only the parental orders would provide the lifelong security and stability that the children’s welfare required.

Hot off the press - I am reliably informed that the judgment in Petrodel v Prest will be handed down by the Supreme Court on Wednesday 12 June 2013, at 9.45am. Full coverage will be available at www.familylaw.co.uk.

And so, another varied week of cases draws to a close. Now time to enjoy the summer … too early for Pimms?

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.