I recently had my attention drawn to a case reported in 2010 about an unplanned pregnancy. Of course there are any number of these happening all the time. This one, however, ended up with the parents facing each other in the High Court.
DE v. AB
It's pretty hard to have sympathy for either parent here. As Baron J explained: " It would seem that the mother was convinced that she
was in love and that the father's intentions were honourable. He, on
the other hand, considered the relationship to be casual and merely
sexual." Nothing too striking there then. Just another commonplace story of a naive mother and uncaring father, it would seem.
"The mother, once pregnant, was anxious to have the child
whereas the father was shocked when he learned about the impending
birth. He advised her to obtain a termination." And that's par for the course too.
Now there's an interesting freudian slip in the next line of the judgment, where Baron J, who was hearing the father's appeal against an order of a District Judge, refers to the mother as the wife - she wasn't! That's very important. She was entitled to be paid by the father solely for the benefit of their child - not in her own right. So what happened first, unsurprisingly, was an application to the CSA. It doesn't seem to have yielded very much though. Apparently less than £300 per month was being paid at the time the High Court was dealing with the father's appeal. Now I appreciate that plenty of parents would be delighted to receive child maintenance measured in the low hundreds each month but the other circumstances of the case rather change one's perspective on this.
The mother
Well, she had had a good job - she was 37 and had been earning £60,000 p.a. gross. Trouble is, she had lost that job and was evidently struggling to find a new one. Her mortgage, get this, had been £570,000 when she bought her house and she had increased it after losing her job and it now stood at £600,000. Interest only, the mortgage cost £30,000 p.a., equivalent to the first £42,000 of income in its entirety.
By the time of the appeal, the mother also had credit card debts of over £83,000 and overdrafts of almost £28,000. She had kept herself above water only with help from her family. For myself, I should have thought that bankruptcy would have come as a relief, if only she had been advised to petition for it.
The father
The father was 39 at the time of the appeal. He too had had a good job, from which he had been made redundant. The redundancy payment, in 2004, was over £950,000, but it was a little unclear whether this was net or gross. The father had a London house with a mortgage on it of £600,000. Use the redundancy money to pay off the mortgage? Nah - take a three year sabbatical from working instead! Then have unprotected sex with mother at the end of the period and presto! Furthermore, the father instead of paying off the mortgage, increased it to invest in a business! By the time of the appeal, it looked as if the business had effectively failed, there would be no capital return and father was looking for a job.
Good grief! It's not as if the parents weren't old enough to know better either. They were in their mid thirties when all this was going on. Despite the realities of the situation, both of them told the judge that they wanted to keep their respective houses, though Lord alone knows how the mortgages were supposed to be paid.
The application
The mother applied to the court for provision under Schedule 1 of the Children Act. Because she wasn't married to the father, she had no other claim in law. So what can the court order?
1. Maintenance, but only if the father (in this case) has income of more than £104,000 net p.a.
2. A lump sum, or several lump sums.
3. A transfer of property to the child or to the Applicant.
4. The settlement of property in trust for the child.
The whole point of this legislation is that it is not intended to do fairness between the parties - it is solely to make proper provision for a child. Unlike the Matrimonial Causes Act, there is no power to order the sale of property. In the context of this case, that's quite important.
So what happened? Well at first instance, the District Judge ordered:
1. Father to settle £250,000 on trust for the child for housing purposes. This would revert to the father when the child reaches 18;
2. Father to pay mother a lump sum of £85,000. £40,000 would repay her legal costs and the rest would go to reduce her debts.
Now the effect of this was that the father would have to sell his own house to be able to make the payment ordered. The court couldn't make an order for sale, but the order to make a settlement effectively did the same. The net proceeds of sale would amount to just £358,000, so the order would wipe most of his capital or put it beyond his reach for years to come. So he appealed.
To a limited extent he was successful. The High Court trimmed £45,000 off the total lump sum. This is how the High Court put it: "Assuming no further payment, the total sum which the
father will have to pay from the £358,000-odd equity in his home is a
total of £290,000. This will leave him with capital of £68,000 less his
costs. That sum will provide him with a modest deposit for a flat for
himself. Given his superior earnings and his current supposed wish to
pursue work abroad, that, as I perceive it, is fair." (emphasis added).
So even when he was not married to the mother, the father is deprived of the use of the overwhelming majority of his capital for at least 16 years. He won't recover it until he himself is 55 years old. Still, unlike in a divorce case, he will at least be assured of recovering it one day. By contrast, the mother finds herself guaranteed a modest house to live in until she is about 52 or so and then she has to rehouse using only her own resources. Put it another way, she has 16 years or so to save up £250,000 to repay the father and given her saving habits up to now, that's more than a radical change of approach to life.
All this for want of a very basic precaution!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Showing posts with label families. Show all posts
Showing posts with label families. Show all posts
Friday, 1 June 2012
Monday, 20 February 2012
Designer families - can they ever work?
Two recent cases have brought before the courts what you might term designer families. The more recent of these is awaiting a decision of the Court of Appeal, as reported by the Telegraph here:
Lesbian couple and the gay father
and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.
The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.
P and L (1)
P and L (2)
Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children. Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one. However interpreted, they are defined by heterosexual relationships of varying permanence or duration.
Doing family differently
These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex, cannot biologically produce children. Some external input is needed for this to happen and so a rather more planned approach has to be taken. In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life. Where the problems have arisen is that the fathers have a different version of what was agreed or expected.
I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement. What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.
The worst form of equality?
Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests. ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult. Here we have two girls, aged 10 and 6. A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned. They intended that person to have involvement in their children's lives. They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children. After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.
"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).
Equal inability to prioritise a child's needs is not an equality to strive after!
How to plan the new family structure
The judge describes the adults as being intelligent professional people. Perhaps the key part of his first judgment is as follows:
"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected."
In his second judgment, Hedley J describes the family planning process in these terms: "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."
Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely. The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."
In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."
And how not to!
You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families. Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."
The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways. It involves " highly-paid professionals living in central London." The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments. By contrast, the mother's counsel is recorded as saying,
"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."
"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."
"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."
"Their choice of family life for their child should be respected."
A new and exclusive test for alternative families?
So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults?
So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family? And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?
For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed. Do I need to change that advice?
Lesbian couple and the gay father
and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.
The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.
P and L (1)
P and L (2)
Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children. Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one. However interpreted, they are defined by heterosexual relationships of varying permanence or duration.
Doing family differently
These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex, cannot biologically produce children. Some external input is needed for this to happen and so a rather more planned approach has to be taken. In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life. Where the problems have arisen is that the fathers have a different version of what was agreed or expected.
I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement. What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.
The worst form of equality?
Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests. ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult. Here we have two girls, aged 10 and 6. A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned. They intended that person to have involvement in their children's lives. They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children. After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.
"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).
Equal inability to prioritise a child's needs is not an equality to strive after!
How to plan the new family structure
The judge describes the adults as being intelligent professional people. Perhaps the key part of his first judgment is as follows:
"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected."
In his second judgment, Hedley J describes the family planning process in these terms: "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."
Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely. The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."
In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."
And how not to!
You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families. Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."
The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways. It involves " highly-paid professionals living in central London." The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments. By contrast, the mother's counsel is recorded as saying,
"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."
"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."
"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."
"Their choice of family life for their child should be respected."
A new and exclusive test for alternative families?
So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults?
So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family? And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?
For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed. Do I need to change that advice?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
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