Private Law
February 2022

Summary:

The Court of Appeal dismissed a father’s appeal against an interim child arrangements order made by Cohen J which included a variation of the previous nesting arrangement.

Background:

The matter concerned three children (aged 9, 15 and 17 respectively). The parties separated in 2018 but reached an agreement in terms of child arrangements. It was agreed that there would be a nesting pattern of 2:2:5:5 each fortnight during the school term, where each party would vacate the family home for a period of two or five days, leaving the other parent at home with care of the children. The arrangement remained in place until the first Covid-19 lock-down in March 2020 when both parties resumed living full time in the family home.

Financial remedy proceedings were commenced by the mother. At the first appointment, Cohen J described the nesting arrangement as “desperately unsatisfactory” and “not a satisfactory long-term or even mid-term solution”. The mother applied for a child arrangements order on 7th May 2020 along with occupation and non-molestation orders. The previous nesting arrangement was preserved at the first hearing in the private law proceedings and an independent social worker ("ISW") was instructed to advise on what living arrangements were in the children’s best interests.

The ISW who completed the assessment reported that the Father wished for the nesting arrangement to continue to ensure a consistent base for the children in the "only home they have ever known" which best reflected their lives pre-marital breakdown; the Father was opposed to the children spending time in the Mother's home. The Mother did not feel that she was able to sustain the nesting arrangement and that shared living arrangements in two separate households would be in the children's best interests. All three children expressed their wish to remain in the family home with the eldest two children confirming that they did not wish to live with their mother and the younger child being more open to the idea, if she was accompanied by a sibling. The Father's coercive and controlling behaviour was noted by the ISW and concerns raised about the impact of this on the children's relationship with their mother. The ISW recommended that there should be a shared care arrangement such that, over time, the children were able to balance staying between both parents in their separate homes; it was acknowledged that this was not in accordance with the children's wishes but was in their best interests.

The hearing on 9th December proceeded on submissions - the Mother advocated for a change to the interim arrangements from 2:2:5:5 to alternate weeks of 7:7 with the children being introduced to overnight stays with their mother on a gradual and progressive basis. The Father submitted that the report did not make interim recommendations and so it was not appropriate for orders to be made at the hearing. The Father submitted that this would effectively determine the final outcome of the matter based on a report that had not been subject to challenge and that had created an over-simplistic view of the family dynamic, with unfair criticism of the Father.

Cohen J confirmed that cases are not determined by ISW reports but that this report was a valuable resource which provides a holistic picture of everything happening in the children's lives. Cohen J believed that the difficulties associated with the transition to shared care at two residences would be less significant than the ongoing harm to the children's relationship with their mother if there are no changes to the arrangement. Cohen J made further remarks that leaving the matter to be determined in July was plainly contrary to the children's interests. It was ordered that the nesting arrangement would be varied to a 7:7 pattern, with the children staying at their mother's property for two nights, later progressing to three nights, every fortnight.

Appeal Grounds:

The following grounds of appeal were put forward:

1. The judge was wrong to proceed to determine interim arrangements for the children in circumstances where the ordinary principles of fairness and justice could not be met.
2. The judge was not an impartial tribunal.
3. The learned judge was wrong to conclude that it was in the children's interests for the existing arrangements to be changed at all and/or at this stage of the litigation and/or to impose a week on week off arrangement and in circumstances where the children did not support change.

Under the first ground of appeal, it was submitted by the Father that the only material the judge had considered was the ISW report and that this had not been able to be tested under cross-examination, which was fundamentally unfair; the Father submitted that the court had been misled by the report's portrayal of discord and a number of factual matters were simply and unfairly overlooked.

With regards to the second ground of appeal, it was submitted by the Father that the Court had not been impartial as Cohen J had clearly formed a view about the Father and the nesting arrangement at an earlier hearing, without hearing any evidence from the Father.

Under the third ground of appeal, it was submitted that the court had failed to take into account the fact that the parties had chosen to extend the nesting arrangement for three years since the breakdown of the marriage and, until the ISW report, had been in full agreement that the nesting arrangement should continue until summer 2022. It was also submitted that the court had not taken into account the firm and clear views of all three children and that, as the decision went directly against the wishes of the two older children, they should have been given the opportunity to seek legal advice and make representations if they wished to. The Father also submitted that Cohen J had essentially determined one of the ultimate issues at final hearing and that there was no welfare-based reason to do so and there was no urgency requiring immediate change in arrangements.

Decision:

Baker LJ was not persuaded that the court should interfere with the judgement of Cohen J for various reasons. Firstly, evidence at hearings other than final hearings are usually in the form of written statements to the Court (FPR 22.7(1)); the Father had not made an application to cross-examine the ISW and it was agreed that the hearing could proceed by way of submissions, so the process was not unfair.

Secondly, Cohen J had not been biased or had prejudged the issue; although Cohen J expressed clear views at the financial remedy hearing in 2019, he endorsed the continuation of the nesting arrangement on more than one occasion. As well as this, no application for recusal was made at any stage and Baker LJ considered that Cohen J had taken a balanced, objective and child-focused approach in his judgement.

Thirdly, a challenge to the Court's welfare analysis and the weight placed on particular factors is a high hurdle to overcome, which the Father had not reached. The strongest argument in favour of retaining the status quo was the wishes and feelings of the children; Baker LJ confirmed that Cohen J had carefully evaluated the wishes of each child but concluded that their wishes were outweighed by the evidence that extension of this arrangement would be harmful to them. Baker LJ also considered that the court's conclusion was a modest departure from the previous arrangement and was a measured and proportionate approach which should not be interfered with. The Court also did not agree that these interim arrangements determined the issue at final hearing and concluded that the welfare decision reached was not unfair or wrong.

Warby LJ and Asplin LJ agreed with the judgement of Baker LJ and the appeal was dismissed.

Summary:

Knowles J exercised the court’s discretion to make parental orders under s.54 Human Fertilisation and Embryology Act 2008 in respect of three children, despite the applications being made well outside of the statutory six month time limit.

Background:

The application relates to three children: X and Y (now 4 years old) and Z (now 2 years old). All three children were born in the USA under surrogacy arrangements entered into in that jurisdiction. Each of the children are the subject of an application for parental orders under s.54 Human Fertilisation and Embryology Act 2008. The applicants are a married couple TT (a British citizen) and RR (a Danish citizen). The first respondents are Mr and Mrs HH (American citizens) who were surrogates for X and Y. The second respondents are Mr and Mrs JJ (American citizens) who were surrogates for Z.

None of the respondents were present or represented at the hearing, but Knowles J was satisfied that proper notice had been given. The court had the benefit of two reports from a parental order reporter, which recommended the making of parental orders. The key legal issue was that the applications had been made outside of the six month statutory time limit and the court needed to consider whether to exercise the discretion to lawfully make the parental orders.

The applicants, who were resident in Denmark, decided to pursue surrogacy through the USA regulatory framework as they were informed that it would provide legal certainty as to parentage in that jurisdiction at the time of the child's birth. They engaged an established agency and were matched with a married surrogate, HH from Oregon; embryos were created using TT's sperm and eggs from an anonymous donor and two transferred into HH's uterus. The twins were born prematurely and cared for by the applicants while they remained in hospital. A declaratory judgment was obtained in Oregon, recognising the applicants as the twins' legal parents. X and Y hold US citizenship. The applicants returned to Denmark with the twins; they had been advised that the twins were entitled to Danish citizenship through RR's parentage and without raising any difficulty the Danish authorities provided X and Y with Danish passports and confirmed their Danish citizenship.

The applicants then decided to have a third child by surrogacy. They used a surrogate, JJ, in California through the same process as used previously. TT was present when Z was born at full term. RR joined them with X and Y and the family of five returned to Denmark once Z's US passport had been issued. The applicants were recognised as her parents under Californian law pursuant to a pre-birth order.

When the applicants tried to register Z as a Danish citizen in 2019 they were told that Danish law did not recognise the parentage bestowed on them under Danish law and that X and Y had been given citizenship in error; not only was Z not granted Danish citizenship but X and Y's citizenship status was rescinded. The Danish authorities put the applicants on notice that they were considering the deportation of all three children. Fortunately, the applicants were able to register the children as British citizens on 16th December 2020 so that they acquired permanent residence in Denmark just before the UK left the EU on 31st December. Subsequently, after a decision in the Danish Family Court, the children's births were re-registered showing TT as their father and the respective surrogates as their mothers.

Until these issues arose, the applicants were unaware of the existence of parental orders in this jurisdiction and were told that acquiring legal status in the US in respect of all three children would be recognised in Denmark. The applicants obtained legal advice and made their applications as soon as it became apparent that it was necessary to do so. The applicants relocated permanently to the UK in October 2021.

Decision:

Knowles J considered the criteria under s.54 of the Act and was satisfied that all elements of the section were satisfied apart from the compliance with the statutory six month time limit from the birth of the child; the application with respect to Z and the application with respect to X and Y were received by the Court on 15th June 2021 and 16th June 2021 respectively.

Re X (A Child) (Surrogacy:Time Limit) [2015] 1 FLR 249 was referred to by the applicants in their invitation for the court to exercise discretion and extend the time limit. In Re X, Sir James Munby held that s.54(3) did not have the effect of preventing the court from making a parental order merely because the application was out of time and that Parliament could not have intended that a delay in making an application would be a bar to the lifelong benefits of a parental order on the children and parents; Sir James Munby also confirmed that each case would be fact specific.

Knowles J confirmed that she was satisfied that the applicants had been careful and organised in their arrangements and relied on the information they had received when believing that their legal status as parents under US law would be operative in Denmark; Knowles J was of the opinion that the applicants had acted in good faith and were unaware of the necessity to apply for a parental order in this jurisdiction, which was a reasonable oversight given that they lived outside of this jurisdiction at the time the children were born.

Knowles J confirmed that it would be in the interests of all three children for the applicants to be recognised as their legal parents; it was confirmed that the welfare checklist under s.1 Adoption and Children Act 2002 should also be considered and not just the statutory criteria under s.54 of the Human Fertilisation and Embryology Act 2008. When looking at the wider canvas evidence, Knowles J was satisfied that parental orders were necessary to give permanence and security to the children's care arrangements.

It was also confirmed by Knowles J that s.54(3) should not be applied as a straitjacket to prevent the court from making an order which is plainly in the children's interests and so a delay in making an application does not prevent the court from exercising its discretion to make parental order.

Knowles J granted the applications and made parental orders in respect of all three children.

Summary:

An application for a declaration of parentage under s.55A Family Law Act 1996 in respect of a biological father who was deceased.

Background:

The Applicant ("Ruth") was born out of wedlock from an affair between a teenage orthodox Jewish woman ("Constance") and an Irish Catholic man ("Patrick"). The couple did not wish to marry when Constance became pregnant and so she found another man ("Dennis") to marry and stand in as a father for Ruth. Dennis was registered as Ruth's father, notwithstanding that he knew he was not.

Ruth was raised to believe that Dennis was her father for most of her childhood; Dennis informed Ruth when she was 15 that he was not her biological father. Ruth carried the truth about her parentage until she was in her 40's, when she spoke to Constance who confirmed that Patrick was her real father. Ruth contacted Patrick for the first time in 2004 where Patrick immediately acknowledged Ruth as his daughter. Ruth was introduced to Patrick's children and the three have shared a close relationship since. Patrick died in 2008 following major spinal surgery.

Ruth made an application for a declaration of parentage to recognise Patrick as her father in law and to replace Dennis on her birth certificate.

Decision:

Mostyn J confirmed the procedure in terms of who should have been made respondents to the application and confirmed that Ruth was right to join Constance, but that the estate of Patrick should have been made a party rather than Patrick himself (FPR 8.20); it was noted that consideration should have been given to notifying the representative of Dennis' estate (as Dennis' parentage would be in question) but that notifying such a representative at this stage would be a protracted process and pointless exercise as Dennis was well aware that he was not the father of Ruth and anyone would be unlikely to argue otherwise at this stage.

Mostyn J also confirmed that judgement could be given in full without anonymisation, as there were no aspects of the case which indicated that the article 8 right should trump the principle of open justice under article 6 and the general article 10 rights of the public at large. Also, no submissions were made by the parties to oppose this.

The provisions of s.55A Family Law Act 1986 were then considered. Mostyn J confirmed that the court had jurisdiction as Ruth had been domiciled in England and Wales when her application was made. s.55A(3) and (4) of the Act were then considered and it was confirmed that the case fell into an excepted category under subsection (4)(b) as the declaration is to name a person as the parent of the applicant. Mostyn J also considered s.58 of the same Act: "where on an application to a court for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy". It was confirmed that considerations should be had under the civil standard of proof.

Mostyn J considered that, in terms of the evidence required, scientific tests were not required to make a declaration of parentage and that the court can make the determination on the basis of the evidence before the court at that time. Mostyn J confirmed that he had ample evidence in this matter to conclude that it is more likely than not that Patrick was Ruth's true father and that there was no reason at all why it would be manifestly contrary to public policy to make the declaration.

Mostyn J granted Ruth's application and confirmed that, although the court is unable to order that an amendment be made to Ruth's birth certificate, the Registrar of Births and Deaths would likely amend Ruth's birth certificate upon sight of the order.