The claimant had several smear tests taken over a four-year span with each being negligently diagnosed by the defendant.

Consequently, by the time the errors were detected, the cervical cancer was too far advanced. Thus, the hospital admitted negligence. If the first smear test taken in 2008 was done correctly then there was a 95% chance of a cure and not developing cancer. A further consequence was that the surgery she needed to take would mean inability to have children. Prior to this surgery, the claimant had eight mature eggs frozen in storage.

The Supreme Court had to address the question whether damages would be payable for the loss of ability to bear her own child.

The area of damages involving surrogacy and other similar issues like wrongful birth are a legal minefield and incredibly complex delving into legal as well as moral issues.

The appeal raised three issues:

1. Can damages to fund surrogacy arrangements using the claimant’s own eggs be recovered?
2. If so, can damages to fund arrangements using donor eggs be recovered?
3. Can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered?

Surrogacy Arrangements Act 1985

The Surrogacy Arrangements Act 1985 (“SAA 1985”) is arguably one of the most controversial laws surrounding medical and family law today. Its clauses speak of a time which opposed surrogacy in the 80’s and unaware of the development it would have in modern society. Surrogacy is a phenomenon in today’s world: celebrities have commercial surrogacies to avoid the consequences of bearing a child for nine months. The complexity of the Act isn’t helped by how it has developed in a relatively piecemeal fashion over time and has been supplemented by the Human Fertilisation and Embryology Act 1990 (“HEFA 1990”) and the 2008 version (“HEFA 2008”).

Nonetheless the point is clear: any contract or arrangement entered into for surrogacy is unenforceable. The woman who has the child on behalf of the commissioning parents is the legal mother when that child is born (s27 HEFA 1990). If the commissioning parents want to become the legal parents, they need to gain a court order that the child is to live with them for the future. Applications are made via s54 and s54A of the HEFA 2008 and cannot be made until after the child is born but before six months after it was born. However, this deadline has arguably been given lip service after the decision by the president of the Family Division in A v C [2016] where orders could be made when a child was 12 or 13.

One of the most important features of the Act is that commercial surrogacy arrangements are banned. The court must be satisfied that no money or other benefit other than expenses which have been reasonably incurred have been given to the applicant or the agreement in general, unless authorised by the court (s54(8) and s54A(7)). Indeed, parliament’s intention was clear here. They didn’t want commercial surrogacy to take place at all but understood some expenses to be incurred for this process. However, the provision leaves the court in a tricky place, especially as Lady Hale points out in paragraph 16: what are they meant to do with a ‘fait accompli’

This is further reinforced by the fact that the Law Commission has yet to find a case which has been refused for exceeding reasonable expenses. An average derived from the Surrogacy UK Working Group on Surrogacy Law Reform found that payments are usually between £12,000-£ 15,000. It would be an unlikely scenario that a judge would take the defiant step to draw the line as to what is reasonable expense given the legal consequences of refusing an order, leaving a child parentless.

The SAA hasn’t been reformed and is still governed by a scathing report by Dame Mary Warnock who described the practice of commercial surrogacy in 1984 as an “intrinsic wrong” and leaves many to become susceptible to exploitation. However, times have moved on since then. Surrogacy is governed in many countries with successful results. Leaving it unregulated allows a greater chance of exploitation than if the government were to take a grip on these matters and provide many with important regulation to end the piecemeal legislation the courts have to interpret. The Act bans third parties from arranging commercial surrogacies and being paid for doing so. However, the HEFA 2008 made slight reforms to this in that reasonable costs could now be recovered.

The issue which XX v Whittington explores is: what happens if the surrogacy takes place elsewhere, not in the UK, where it is lawful for commercial surrogacy? This case is the sequel to Briody v St Helens and Knowsley Area Health Authority decided in 2001 where Hale LJ (as she was then) sat. The facts were, overall, the same. Hale LJ stated that to give damages for a claimant to have commercial surrogacy was indeed, contrary to public policy. Nonetheless, this case was only 15 years after the SAA 1985. It is for this reason that Hale in the current case notices that times have moved on since Briody. There have been developments in the law through case law and statute but also society’s stance has invariably changed and surrogacy is now seen as a genuine way of creating a family. A YouGov survey in 2014 found that more than half (59%) of adults in the UK supported using surrogacy to have children. A significant development.

The first two issues in the appeal were resoundingly dismissed. It was held that the court should ask itself whether it was reasonable to remedy the inability to bear a child through surrogacy depended on probability of success. Unlike in Briody, where there was a 1% chance, the chances for XX were reasonable and she even delayed treatment to harvest eggs. In relation to the second issue, Hale said the law derived in Briody was probably wrong then and certainly now. Briody expressed the view that donor-egg surrogacy arrangements could not be recovered as this is not what the claimant lost. This was rejected. Put simply, this is because there have been changes to what constitutes a family in current times. The baby is as much theirs as if they had carried it themselves (XX v Whittington Hospital NHS Trust [2018], King LJ in the Court of Appeal).

It was a 3:2 majority on the third issue, which is the most controversial point.

It is well-established that the UK courts will not enforce a foreign contract which is contrary to public policy. This is where the analysis differs between the Justices.

Hale drew similarities between UK surrogacy and those conducted in California, with many of the costs claimable in California being able to be claimed in the UK. Further, it is not against the law in this country for commissioning parents to do any of the acts which are prohibited by s2(1) of the SAA 1985. The object of the legislation was not to criminalise the surrogate or commissioning parents. The developments since Briody and the government’s support for other methods of assisted reproduction are now socially acceptable and becoming very frequent methods to make families. It was for these reasons, amongst others, that Hale decided that it is no longer a public policy concern to award damages for costs for a foreign commercial surrogacy. This marks a significant shift from Briody and that the SAA 1985 is perhaps on its last legs with reform imminent.

But it is worth noting the dissenting passage on this third issue by Lord Carnwath (with whom Lord Reed agreed). He notes that there must be an objective of consistency between the civil and criminal law systems and just because another jurisdiction reflects different policy choices, this should not infiltrate the UK’s decision. This principle would be offended if the UK courts were to allow damages to be recovered under civil law but not criminal law. Despite societal reforms and shifting attitudes towards surrogacy, the laws of commercial surrogacy have not changed. Therefore, to allow damages, as has been done in this case, offends this principle.

Regardless of which side of the fence you sit on whether damages should be awarded, the case highlights the importance for the Act to be reformed. The current law does not represent the current stance of society. Further, not only would society benefit, but so will the courts, who have to continuously balance commercial surrogacy laws with the welfare of the child. The latter will almost always prevail.

Callum Reid-Hutchings is a first-class law graduate from Swansea University. He is currently studying the Bar Professional Training Course at City, University of London, and will then commence an LLM at the University of Cambridge.

The post XX v Whittington: Another nail in the coffin for the Surrogacy Act? appeared first on Legal Cheek.

Former head of the Family Division of the High Court, Sir James Munby, has called for the amendment to the current law regarding surrogacy payments. He asserts that “society is moving on and the challenge for lawmakers is what steps, if any, we take to accommodate those changes into our legal framework”. Under UK law, women are banned from advertising themselves as surrogates or receiving payment other than to cover ‘reasonable expenses’. However, Munby argues that the reality is a market does exist in the UK as payments are “dressed up as expenses”.

Currently, the legal rules regarding the regulation of surrogacy are contained in the Surrogacy Arrangements Act 1985. Following the Warnock Committee’s investigation, the government created the regulatory framework which “makes it a criminal offence to be commercially involved in the negotiation of surrogacy arrangements, or to be involved in publicising or advertising surrogacy arrangements”. The act, which Professor Michael Freeman, a lecturer at UCL, contends is “an ill-considered and largely irrelevant panic measure” outlines the requirements which need to be established for a parental order to be granted. Once a parental order is granted by the courts, the surrogate mother is no longer the child’s legal guardian and the child will be under the care of the parents who began the surrogacy arrangements. The entire legal process begins after the event of birth not before. However, there has been recent controversy regarding the payment of surrogates.

The act does not allow any commercial transaction between the surrogate and the future parents, however it does permit reimbursements for ‘expenses’. However, ‘expenses’ is not defined in statute, so courts have had to determine whether the payments being made are adequate. Customary payments have been held to be between £12,000-£20,000. Yet, courts have authorised payments of other values where they have confirmed ‘this has been in the child’s best interests’. But again, the value of expenses is contestable. As Munby stated, “How is a judge supposed to assess whether the £10,000 paid, for example, is a genuine expense?” There needs to be transparency in the law, setting out the legal boundaries of what can constitute payments. While there has been amendments to legislation regarding other fertility treatments due to scientific and technological advances, “British surrogacy law has remained fundamentally unaltered for 30 years”.

Critics of reforming the law and allowing surrogates to receive payment predominantly assert they wish to avoid exploitation of vulnerable women. This is a legitimate concern. By transforming the current UK surrogacy law based on altruism to a commercially regulated environment, this may incentivise women who need money to become surrogates out of necessity. If the law were to change, additional safeguards would need to be inserted to make sure that this doesn’t happen, and that “women understand the risks and implications of what they are doing and give informed consent”. In the US, commercial surrogacy exists. Surrogacy agencies are legal and surrogates “may be compensated around $40,000 in addition to expenses”.

Society’s attitude has changed since the 1980s, in regards to issues such as IVF, surrogacy and same sex couples for example. The law needs to adapt to the societal change around these issues.

In February this year, the Department for Health gave the Law Commission £150,000 “for a three year project which is expected to lead to a rewriting of the Surrogacy Arrangements Act 1985 and the 2008 Human Fertilisation and Embryology Act.” Being done in conjunction with the Scottish Law Commission, it may be eventually possible that surrogates will be entitled to a payment that isn’t put under the umbrella of ‘expenses’. Again, the pitfalls of this must be advanced, it should never be the intention to put those vulnerable at further risk. However, with well regulated safeguards, it is possible that surrogates be compensated. As Munby acknowledges, “surrogates are amazing women who selflessly give up a year or more of their lives to help someone else have a family”, so why should they not be more adequately compensated and remove the fear of parents that they may not be granted the parental order if they are seen to commercially hire a surrogate.

Emma Diack is a postgraduate student at King’s College London studying medical law. She recently completed her undergraduate law degree at the University of Warwick and has a passion to pursue sectors of law ranging from commercial to family.

The post Why we need to reform the archaic law of surrogacy appeared first on Legal Cheek.

The law has traditionally been slow to deal with gendered issues and inequalities that arise within it. One such example is the marital rape exemption that existed in English and Welsh law until 1991. Many law students are appalled to learn that until the exemption was reversed in R v R, one could not be found legally guilty of raping his wife.

Another area of the law that has been slow to evolve is domestic abuse. Despite the fact that one in ten crimes recorded by the police are domestic abuse cases, there was no dedicated offence specifically dealing with it until 2015 with the passing of the Serious Crime Act (SCA).

Section 76 of the SCA 2015 introduces the wordy offence of controlling or coercive behaviour in an intimate or family relationship. This offence essentially seeks to criminalise behaviours, such as manipulation, which are likely to do harm to another party in a domestic situation. The offence is largely considered a reactionary response to the verdict in R v Dhaliwal.

In that case, a woman was psychologically abused by her then partner to the point she decided to commit suicide. The police decided to prosecute the offence under section 20 of the Offences Against the Person Act 1861 (OAPA) relying on psychiatric injury as the basis of the charge. The case failed as the prosecution were not able to prove the victim had a recognised medical condition caused by the defendant. The burden of proof for demonstrating psychiatric injury is generally quite hard to overcome in criminal law, especially when the victim is deceased. The case highlighted the problems of not having a dedicated offence to deal with cases of domestic abuse.

Many feminist jurists were highly critical of the decision. The courts have been willing to expand the scope of the OAPA in cases such as R v Brown and R v Chan Fook. Relaxing the requirements for psychiatric injury could have allowed the courts to tackle the rampant and under-prosecuted issue of domestic abuse under the OAPA.

Parliament has intervened with the section 76 offence under the SCA but the reception so far has been mixed. Commentators have been sceptical of the offence. Nicola Padfield, a barrister and Cambridge academic, notes that the new law is overly complicated and may not be used at all by the police. She further goes on to disapprove of the introduction of new offences instead focusing on making the existing law more efficacious. Some specific problems she highlights are the lack of legal aid for these victims and the fact that the police do not bring forward prosecutions in many domestic abuse cases.

Other commentators have taken a more optimistic approach to the new offence. Charlotte Bishop, a lecturer at Exeter Law School specialising in domestic and sexual violence, argues that the new offence is beneficial as it recognises the harm done in non-physical psychological abuse. She argues the offence could help shift societal and judicial attitudes about psychological abuse which could have long-term benefits for the law. Furthermore, she notes the new offence allows the law to take into consideration the wider context of abuse in an intimate relationship. Prosecuting domestic abuse under the OAPA would mean the domestic context could not be meaningfully considered.

I am personally of the view it would have been preferable to expand the law in the OAPA and avoid creating a new offence. There are already a litany of offences available to the police in prosecuting domestic abuse. The introduction of a new offence further complicates the job of the director of prosecutions. It has also been noted that the OAPA is a living instrument to be adapted to present day conditions. The creation of a new common law doctrine to deal with domestic abuse under the OAPA could allow the courts to shift the law in a way that better deals with such crime. Statute law is rigid and cannot be adapted to novel cases to the extent common law can.

Furthermore, there are systematic issues hampering the prosecution of domestic abusers that cannot be solved with new offences as pointed out by Padfield. The government should devote more resources to legal aid for domestic abuse victims and work on providing more resources such as shelters.

It is too soon to evaluate the effect of the new offence. There has been a successful prosecution of a case materially similar to R v Dhaliwal under section 76 of the SCA. This could suggest the offence is having a positive impact as more domestic abuse victims will be able to seek redress, but more case law is required for a conclusive evaluation of the new offence.

Rodney Dzwairo is a first-year law student at the University of Warwick. He’s an aspiring commercial solicitor.

The post Does the law adequately protect victims of domestic abuse? appeared first on Legal Cheek.

Northern Ireland hit the headlines yesterday. And for once, it was not about Brexit and the hard-soft-cold-but-hot border! Siobhan McLaughlin, a widowed mother of four from County Antrim, has become the centre of a media frenzy. This, after her landmark case was decided by the Supreme Court involving the European Convention on Human Rights, widowed parent’s allowance and a detailed 33-page judgment from the UK’s top court.

McLaughlin’s late partner, John Adams, passed on 28 January 2014. Although unmarried they lived together for 23 years and had four children together. Had they been married, John’s contributions to her would have been enough for McLaughlin to claim a widowed parent’s allowance — a social security benefit granted under section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

McLaughlin applied for the benefit after her partner’s passing but was denied due to the strict wording of the Northern Ireland Act that only granted the benefit to once married widows. McLaughlin appealed. Her case rested on the incompatibility of the Northern Ireland Act and Article 14 of the European Convention of Human Rights (ECHR). It states:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

First her case went before the High Court where the judge agreed with her position. The case was appealed to the Court of Appeal which decided against her. Finally, the case was brought to the Supreme Court which yesterday announced 4:1 (Lord Hodge dissenting) that section 39A of the Northern Ireland Act is incompatible with the ECHR. In the majority judgment four questions were raised:

1. Does the decision of granting or not granting widowed parent’s allowance by a state authority fall within an Article of the ECHR?

The actual decision was irrelevant for this stage. Merely the fact that the state made a positive action to either grant or not grant a benefit brings the case within Article 8 of the ECHR. Denial of a social security benefit is also firmly within Article 1 of Protocol 1 of the ECHR — the protection of property.

2. Has there been a difference in treatment between two persons in analogous situations?

A previous case (Shackell v United Kingdom) went before the European Court of Human Rights in 2000 in which the court held inadmissible a claim by an unmarried woman to widow’s benefit. This was distinguished in the majority decision. The Northern Ireland Act, which McLaughlin applied for the payment under, grants the payment for the benefit of rearing children — the status of marriage plays no role in that as the court found at paragraph 26. Very progressive. So she has been treated differently to those in analogous situations.

3. Is that difference of treatment on the ground of a relevant status?

McLaughlin was treated differently because of her marital status. This counts as an ‘other status’ under Article 14 ECHR.

4. Was the different treatment objectively justified — did denying McLaughlin the payment pursue a ‘legitimate aim’?

Governments within the EU and ECHR framework can pursue legitimate policy aims (don’t let any Brexiteers hear you say that!). Although promoting marriage and civil partnership is a legitimate aim, denying McLaughlin the payment was not a proportionate measure. The benefit exists to allow the continued rearing of children following the death of a parent. Protecting children’s rights trumped the promotion of marriage — and rightly so.

So, with that said, the court concluded: “Children should not suffer this disadvantage because their parents chose not to marry”. Finally, the court held section 39A of the Northern Ireland Act incompatible with the ECHR and the administrative decision will be overturned in due course.

This opens up the progression for non-traditional relationships having access to the legal rights everyone should. The court emphasised that simply not being married and being denied the payment was not the focus. Rather, because McLaughlin and her late husband lived as though married, raised children, and so on, that made the denial by the Northern Irish body discriminatory. But still, this continues a wave of progressive decisions and legal change in the UK.

Conor McCavana is studying law at Murdoch University in Perth, Western Australia. He has aspirations of becoming a corporate lawyer.

The post Benefits for widows case: A progressive decision by the Supreme Court appeared first on Legal Cheek.

In the recent instalment of Owens v Owens, the Supreme Court ruled that Tini Owens must remain married to her husband Hugh Owens.

This is a decision that was eagerly awaited and one that will undoubtedly, come as a massive blow to Mrs Owens, who despite three years of trying to legally leave the marriage, will remain trapped in an unhappy and loveless marriage.

In the United Kingdom, if a husband or wife wishes to begin divorce proceedings, they must prove that their marriage has irretrievably broken down by establishing one of the five facts found within the Matrimonial Causes Act 1973. These include adultery, unreasonable behaviour, desertion, two years separation and five years separation.

In her petition, which has now been unsuccessful on three counts, Mrs Owens had sought to rely on section 1(2)(b) of the Act on the basis that her husband had behaved in such a way that she could not be reasonably expected to live with him. Mrs Owens alleged that her husband often prioritised his work over family life; that he treated her in a way that lacked love and affection; and that he would belittle her in front of others.

These allegations were met with disapproval in the first instance by Lord Toulson, who put forward that:

“In reality I find that the allegations of alleged unreasonable behaviour in this petition — all of them — are at best flimsy.”

Further, when the case was heard in the Court of Appeal, Lady Justice Hallett proposed that certain types of behaviour have a different effect on a married couple depending on whether their marriage is happy or unhappy. She said:

“Behaviour considered trivial in the context of a happy marriage may assume much greater significance for a husband or wife trapped in an unhappy marriage.”

It seems that the courts (although sympathetic to Mrs Owens) when applying the law, found it extremely difficult to bend the behaviour of Mr Owens in a way that would fall within the meaning of section 1(2)(b).

In the Supreme Court, it was clear that there was a reluctance to find that Mrs Owens must remain unhappily married to Mr Owens. It was put forward that since judges do not possess the ability to change the current law:

“Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.”

Lady Hale, who has previously voiced her concerns about the current state of divorce laws in the UK, reiterated this point:

“I have found this a very troubling case. It is not for us to change the law laid down by parliament — our role is only to interpret and apply the law that parliament has given us.”

It may seem that Mrs Owens has been left with no option but to remain trapped in an unhappy and loveless marriage, but there is hope provided to her by section 1(2)(e) of the Act. This provision provides parties with the ability to petition for a divorce if they have been separated for five years or more. Although this option still leaves Mrs Owens with the prospect of remaining married to her husband for another two years, she will no doubt delight in the fact that she will not need the consent of her husband for the petition to be successful.

This decision has turned a number of heads within the legal sector. Nigel Shepherd, former chair of Resolution, argued that “there is now a divorce crisis in England and Wales” and “it should not be for any husband or wife to ‘prove’ blame as the law requires many to do — this is archaic, creates needless conflict, and has to change”. He subsequently called for the government to take “urgent action” and reform current divorce law.

The Supreme Court ruling has further ignited the argument for the introduction of ‘no-fault divorce’, a system where neither party will have to prove fault. This would arguably put an end to the ‘blame game’ culture we see so common in several divorce cases as well as the need for couples to go to extensive measures just to prove one of the five facts.

Current divorce law is now almost 50 years old. Its rationale and operation are at odds with a modern family justice system that seeks to minimise the consequences of a relationship breakdown for both adults and children. Each marriage is different and each party will have their own specific reason for why they believe their marriage has broken down irretrievably. These are just some of the reasons why there will never be one approach to divorce that fits all.

There have been a number of attempts to introduce no-fault divorce. There was an attempt to introduce the system in the Family Law Act 1996 but the government later dropped this for concerns it would not work. Furthermore, a no-fault divorce bill was introduced in parliament, but did not make it past its first reading in the House of Commons.

For there to be a change, parliament must take notice and now is as good a time as ever.

Kayleigh Judge is a recent law graduate from Edge Hill University.

The post Is now the time to end the divorce ‘blame game’? appeared first on Legal Cheek.

Simple unhappiness is not valid grounds for divorce concludes the reluctant five-justice panel of the Supreme Court in Owens v Owens on Wednesday.

The case climbed its way up to the Supreme Court after a six-year dispute. Now, Mrs Owens has been told that she must remain in her 40-year-long marriage despite feeling “unhappy, unappreciated and upset”.

Mr and Mrs Owens, aged 80 and 60 respectively, have been married since 1978 and have two children. They lived together in the matrimonial home, a manor house in Gloucestershire until Mrs Owens had an affair in 2012. She has been living in a nearby property since 2015.

The initial petition for divorce was filed back in 2012 based on section 1(2)(b) of the Matrimonial Causes Act 1973. Mrs Owens claimed that the marriage had broken down irretrievably. Allegedly, Mr Owens’ behaviour was such that she could not reasonably be expected to live with him. Mrs Owens presented four allegations: that Mr Owens had prioritised his work, that he treated her without love or affection, that he had been moody and argumentative, and that he had disparaged her in front of others. Mr Owens denied all allegations, attributing the breakdown of the marriage to her affair.

Either way, Mrs Owens was unhappy with her marriage. So why did her petition not succeed? The Supreme Court even acknowledged that “almost every petition under the subsection will succeed… the petitioner will be encouraged at the hearing to give no more than brief evidence in relation only to a few allegations of behaviour”.

Lord Wilson said in his judgment that such cases revolve around an evaluation as to whether it would be unreasonable to expect the petitioner [Mrs Owen] to continue living with the respondent [Mr Owen]. In the first instance, the Court of Appeal determined that such an expectation was not unreasonable in the Owens case. It concluded that “all 27 of the pleaded examples of behaviour were at best flimsy” and that Mrs Owens, being “more sensitive than most wives”, had “significantly exaggerated their context and seriousness.” The Supreme Court did not contest this conclusion and the appeal was unanimously dismissed.

Mrs Owens must now remain married to Mr Owens for at least another two years. She could then file a second petition, this time under section 1(2)(e), by demonstrating that they have “lived apart for a continuous period of five years.”

In today’s world, it appears quite unfair for an unhappy spouse such as Mrs Owens to be refused a divorce. Lady Hale, president of the Supreme Court, commented in her judgment that she found this to be a “very troubling case” and that unfortunately “it is not for [the Supreme Court] to change the law laid down by parliament — our role is only to interpret and apply the law that parliament has given us.” Lord Wilson further stated that “parliament may wish to consider whether to replace” the current law.

Following the landmark decision, family lawyers have been quick to criticise the current law of divorce and have called for urgent reform.

Nigel Shepherd, former chair of Resolution, a national organisation of family lawyers committed to non-confrontational divorce, commented:

“In this day and age, it is outrageous that Mrs Owens — or anybody– is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name… It should not be for any husband or wife to ‘prove’ blame as the law requires many to do — this is archaic, creates needless conflict and has to change.”

Jane Robey, chief executive of National Family Mediation also called for change to these “outdated laws”. Indeed, the Matrimonial Causes Act does in fact date back to the 1970s, almost 50 years ago. The five facts (adultery, unreasonable behaviour, desertion, two years separation and five years separation) required to prove fault are arguably quite antiquated and have no real place in today’s society. Baroness Butler-Sloss, former president of the family division, said:

“The present law on divorce is not fit for purpose. Most judges do not apply the law as set out in the 1973 legislation; in order to get a quick divorce petitioners have to make allegations of unreasonable behaviour by the other spouse which can be very wounding for the respondent… and extremely upsetting for the children.”

Could it be time for a shift to the ‘no-fault divorce’ system which has long been advocated? One could argue it would alleviate the need for blame and for couples to go to extensive measures just to satisfy one of the five facts for divorce.

Baroness Butler-Sloss introduced the Divorce (etc.) Law review bill in the House of Lords which had its first reading on 18 July, only a week before the Supreme Court ruling. The bill prompts for a review by the Lord Chancellor of the current law, suggesting there be a sole ground for divorce: the irretrievable breakdown of the marriage and a simple application to the court. A subsequent confirmation of the application would suffice, without the need for additional evidence of any fault.

If the bill passes, many unhappy spouses like Mrs Owen will be able to divorce, without having to go through a six-year dispute or having to prove any fault. It’s time for change and parliament must sit up and take notice.

Thomas McGrath is a third year undergraduate English and European law student at Queen Mary, University of London.

The post Owens v Owens: Has the time finally come for a ‘no-fault divorce’ system? appeared first on Legal Cheek.

An intentionally provocative article in a recent issue of Grazia argued that in the face of ramped-up fears about teenage pregnancy, too many schoolgirls are so forcefully taught how not to get pregnant that they lack an education on fertility and childbirth. It reads:

“By failing to teach generations of girls how to get pregnant, we have left grown women unable to do so: unaware of the symptoms of infertility and blinded by the belief that IVF can solve every problem.”

Indeed the magic bullet afforded by IVF, in vitro fertilisation, is not as magic as you might think. IVF is one of the most invasive of all fertility treatments; it involves: suppressing the menstrual cycle; boosting egg supply; collecting eggs from the ovaries (with a needle); fertilising these eggs and transferring these into the womb. Side effects include, on the more moderate end of the scale, hot flushes and headaches, and, on the more serious, ectopic pregnancy and blood clots.

After all that, the chances of success are low: birth rates range from 2% to 33% depending on the woman’s age. The likes of Kim Kardashian have been open about their failed IVF attempts, the reality star claiming that the process left her “exhausted” and “over it”.

But for all the treatment’s clinical problems, the general consensus is that the law governing IVF has taken massive strides in recent years.

Legislation in the form of the Human Fertilisation and Embryology Act 2008, regulated by the Human Fertilisation and Embryology Authority, washed away many of the once discriminatory practices associated with the fertility treatment. This sweeping legislation (it has over 200 provisions) was described by the authority’s former chair Lisa Jardine as “radical [and] far-reaching”, it granting equal access rights to IVF for everyone regardless of marital status and sexual orientation.

While legal and ethical debates on the concept of third-person parenthood, sex selection, pregnancy post-menopause and more continue, concerns over equal access have been quelled by the 2008 act. Yet, as is so often the case with medical law statutes and others, the push for equality heralded by the act’s champions isn’t quite felt so acutely by those trying to make use of it. But it’s not potential users’ marital status or sexual orientation standing in their way, but where they live.

This is because the provision of NHS-funded IVF cycles is organised by clinical commissioning groups (CCGs), i.e. by location. These CCGs came into being thanks to the Health and Social Care Act 2012, and there are currently 207 of them.

The National Institute for Health and Care Excellence (NICE) recommends that women who are less than 40-years-old and have been unable to get pregnant after two years of trying should be offered three full IVF treatments on the NHS. (Beyond that, those wanting access to IVF treatments are expected to pay privately, the NHS website stating that “costs vary, but one cycle of treatment may cost up to £5,000 or more”.)

IVF’s dismal success rates mean even three cycles won’t be enough for a high number of would-be parents. And yet, the non-binding nature of the guidelines means CCGs have free rein to set their IVF rules. You may expect just rare instances of guideline-straying but no: just 12% of CCGs actually follow them.

Campaign group Fertility Fairness has ranked all 207 CCGs as part of its ‘IVF League Table’, to provide an insight into how CCGs compare in their provision of fertility treatment. The likes of Bury and Oldham did well, their access score being two-and-a-half. By contrast, seven CCGs scored zero as they do not offer any NHS-funded cycles: Basildon and Brentwood, Cambridgeshire and Peterborough, Croydon, Herts Valleys, Mid Essex, North East Essex and South Norfolk.

This postcode lottery approach to IVF doesn’t just relate to the number of rounds on offer. To give you an example of the subtleties: in Liverpool IVF is available for women who have no living children (and who satisfy a number of other criteria), while in Haringey the recipient must have no living children from their current relationship and their partner must be childless. In Norwich, a woman must have been trying to conceive naturally for three years without success; in Erewash, one year will suffice.

The result of this patchy application of the law is that women with fertility issues in Hackney will be entitled to just half the number of rounds of IVF that her counterpart just down the road in Islington would be, or just one third of that on offer in Camden. The ‘one chance’ approach to IVF only adds to the “inevitable emotional roller coaster” that is fertility treatment, journalist Emily Phillips (again in Grazia) conceding that “the injustice is hard to bear”. NICE has called for an end to this practice, telling CCGs to “stop rationing fertility treatment”.

And yet, others argue that struggling women should be grateful for whatever ‘free’ rounds of IVF they manage to receive.

Journalist Sirena Bergman thinks that there’s a crucial distinction between “curing illness and curing dissatisfaction”. While the NHS continues not to fund eye tests, dental treatments, air ambulances, prescriptions and at-home care, she argues, they should not fund IVF. This feeling extends beyond opinion pieces. A recent poll of 600 medics found half of doctors think the NHS should stop funding IVF.

Journalist Fay Schopen, who candidly spoke about her fertility struggles in The Guardian, seems to err on this side of the debate when she says: “I don’t believe anyone has a right to have a child.” But, she continues:

“[A]s Professor Simon Fishel, who pioneered IVF in the UK, says: ‘You have to treat citizens equally and this is a deliberate inequality and obfuscation.’”

The post IVF law is praised for its embrace of equality yet its practice reeks of injustice appeared first on Legal Cheek.

Recently the President of the Family Division, Sir James Munby, proposed a pilot financial remedies court in London, South East Wales and the West Midlands to separate out divorce proceedings and the financial proceedings that tend to flow from them. Initially, the plan is that the courts will deal with ancillary relief cases, i.e. financial remedy claims within marriage/civil partnership dissolution/nullity/judicial separation proceedings, but in due course this will be extended to all types of family financial remedy cases.

This concept is not entirely new and can be seen as building on the current family court and Court of Protection models. Each circuit will typically have two regional hubs, headed by a lead judge who is an expert in financial remedy work. Mr Justice Mostyn is to lead this pilot scheme as the lead judge; while His Honour Judge Hess will be deputy lead judge. The pilot scheme will start in February 2018.

But why de-link the two?

In May 2017 Munby argued that divorce requires little judicial assistance while financial remedies often entail heavy judicial involvement. As such divorce should be streamlined so that the administrative issues of divorce are separated from its more complex financial issues, allowing judges to focus on the latter and provide a rationalised and effective end result.

“Has the time not come to bring about a complete de-linking — separation — of divorce and ‘money’,” Munby asked, “so that they are started and pursued by completely separate processes, albeit, of course, that the timeline for ancillary relief is determined by the progress of the divorce? My view, which I have been propounding for some time, is an unequivocal and emphatic yes!”

Moreover, divorce is the end of a marriage and a marriage is a union of two people. Those two people did not have to have their union approved by a judge when choosing to get married, so why should the end of that same union require a judge’s permission? Judicial involvement in the process of divorce itself is limited, unless the petition is defended which is rare — although Owens v Owens is making headlines. It is also important to note that not all divorces result in financial remedies proceedings. As such the court procedure is wholly unnecessary to embark upon in those cases.

The need to have a Financial Remedy Court (FRC) is obvious for the parties in the proceedings, as well as those who have been involved in the proceedings in a legal capacity.

The proceedings require expert judicial deliberations, implementation of precedents and a full valuation of the facts of the case and the disclosures made. It is not the end of the union but the assets of that union that necessitates judicial guidance. The scheme also includes a provision that only specialist judges with expertise in financial remedies can sit as judges at FRCs. Having specialised ‘ticketed’ judges hearing financial proceedings will make the process more efficient as they are experienced in the area of law and will thus provide faster, better reasoned decisions with heightened predictability — which is better for the couples who acquire considerable legal bills to divide their assets.

This divorce of the procedure is surely required, but what is unhelpful is certain newspapers’ depiction of the introduction of financial remedy courts.

The pilot scheme has been called a divorce court that specialises in the “super-rich” or “new courts to hear the super-wealthy battle over finances”. This is unhelpful, as the point of the FRC is not to be available for those with big assets but to be available for those with complex issues in their asset division post-divorce.
The legal community on Twitter has been quick to step in to point this out, James Turner QC from 1KBW has referred to the misleading headings and said:

The very point of my original tweet is that it is NOT a specialist court for big money cases, but a specialist court for money cases.

— James Turner QC (@JamesTurner37) December 5, 2017

Helen Brander, a family lawyer at Hind Court, has commented:

“The headline should make clear that, actually, those with modest assets for whom division has the most impact will benefit from the experience of specialist financial remedy judges in their local courts.”

It is quite striking that the media finds the need to refer to the super-rich or super-wealthy, when in nowhere of Munby’s statement can such reference be found. Are the headlines being used due to a misunderstanding, or to simply evoke a reaction and sell papers? Whatever the reason, complexity does not equal wealth in all cases, and people going through such proceedings or contemplating such should not be misled.

Adiba Bassam is a BPTC graduate and an aspiring barrister, currently working as a legal assistant at a London chambers.

The post Top family judge’s plan to introduce a new divorce court is an excellent idea that the media has failed to grasp appeared first on Legal Cheek.

Divorce, although currently on the decrease, is still prevalent in society, with the Office for National Statistics quoting 101,077 divorces in 2015. However, the current state of divorce law does not make the process easy for both parties, especially when you consider emotions will be running high.

In England and Wales to obtain a divorce, under the Matrimonial Causes Act, there is a requirement to prove that the marriage has irretrievably broken down by claiming one of five facts.

Three of those facts require either a period of separation of either two years if the divorce is not contested by the partner or five years if the partner does contest.

The remaining two options are either to claim that the respondent has committed adultery, or that they behaved so unreasonably that the other cannot be expected to live with them. Therefore, if couples wish to divorce before two years of separation they must place some blame onto the other partner for the breakdown of the marriage. When applying for a divorce under these two claims, the petitioner must provide evidence or examples which are sufficient to show the irretrievable breakdown of the marriage.

Pro-no-fault divorce group Resolution carried out research in partnership with YouGov in 2015 and found that 52% of divorce petitions were fault-based, alleging either unreasonable behaviour or adultery. Twenty-seven percent of divorcing couples who asserted blame in their divorce petition admitted the allegation of fault wasn’t true, but was the easiest option. It seems rather alarming that false allegations are being made to the court in order to obtain a divorce prior to the two year separation time period.

Case law in this area is equally alarming.

Take the recent Court of Appeal case of Owens v Owens. In the first instance the wife had petitioned for a divorce based on the grounds of unreasonable behaviour, which the husband had contested. In her petition the wife had cited some 27 allegations of the husband’s unreasonable behaviour which included his insensitivity and the fact that she felt unloved.

However, the judge, Robin Tolson QC, ruled that these allegations were “minor altercations of the kind to be expected in marriage”, and therefore the petition was not granted. This decision was upheld in the Court of Appeal, which leaves the wife stuck in a “loveless marriage” until five years pass and the wife can petition for divorce without her husband in agreeance. This case will now go to the Supreme Court and the decision may be overturned.

Nigel Shepherd of Resolution believes that this case “underlines the urgent need for no-fault divorce”. The process of citing the partner’s unreasonable behaviour or details of adultery make no difference to any financial settlements or child arrangement orders decided through the divorce procedure.

Resolution is therefore calling for a reform in the law to “allow people to break up with dignity without a two-year wait” which would lead the procedure to be more focused on finances and children and to remove as much animosity as possible. This new procedure would allow one or both spouses to give notice that the marriage has broken down irretrievably and after six months the divorce will be finalised.

This no-fault divorce system is already in place in various countries including America, the Netherlands and Scotland.

In 2006, Scotland introduced shorter periods of separation for a no-fault divorce from two years to one year for cases of divorce by separation, and from five years to two years for cases where there was no consent to divorce. Although there was a peak from 2006 to 2008 following the introduction of no-fault divorce, in 2012 there was a drop of 14% of divorces over the past four years. This implies that the introduction of no-fault divorce in the UK is unlikely to lead to a higher divorce rate.

This call for reform is not new. In fact the Family Law Act 1996 would have provided for a no-fault divorce procedure had the government of the time not deemed the provision unworkable. Also in 2015, the No-Fault Divorce Bill was put forward by Richard Bacon MP. After its first reading in the House of Commons it did not proceed any further.

Is there ever going to be a reform for no-fault divorce? Richard Adams, a specialist family lawyer, believes the government has no justification for refusing to reform the law especially as he believes there is clear evidence of the damage that current divorce procedures can cause to the couple and any children they may have.

In early 2017, Lord Pendry asked the House of Lords whether there were any plans to review divorce laws. In reply Lord Keen of Elie stated that the government was “committed to improving the family justice system” and later added:

“Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”

So it does not seem like divorce reform is imminent. Felicity Chapman, an associate at Charles Russell Speechlys, believes, however, that the government’s decision to not commit time to this reform may be because of its current focus on Brexit. This may mean that following the end of this Brexit-fuelled political turmoil, the government may have more time to focus on a divorce law reform.

Zoe Bowler graduated from the University of Brighton in 2017 with a first class degree in law and criminology. She is the recipient of three academic prizes and has an avid interest in family law.

The post Is Brexit the reason we don’t have a no-fault divorce law? appeared first on Legal Cheek.