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?

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.

Now this is genuinely frightening! Lloyds TSB v. Markandan and Uddin

The property market is in the doldrums and the problems which beset lenders find their way inevitably to the doors of the surveyors and solicitors who advise them.  However, the Court of Appeal has just handed down judgement in a case against a firm of solicitors which is rather out of the ordinary.  It's the case of the fake solicitors!  It's the rather shocking tale of a firm of solicitors having its identity stolen.


Deen Solicitors was a legitimate firm in Luton.  So far as I can tell, they no longer trade but back in 2007 they certainly did.  One of their solicitors was Jagtar S. Dhuphar.  In August 2007, someone called Victor Davies presented himself at another firm of solicitors, Markandan and Uddin, in Wanstead, saying that he had agreed to buy a house and was getting a mortgage of close to £750,000 to complete on it.  He instructed M & U to act for him and soon they heard from the Holland Park office of Deen Solicitors.  Unfortunately, although Deen Solicitors wrote on appropriate letterhead and talked the right language, the firm didn't actually have a Holland Park office - they had been the victims of identity theft!  Mr. Dhuphar didn't work in Holland Park and had nothing to do with this correspondence, even though it was purportedly his reference and signature on the letters.

The transaction meandered through to its intended conclusion, which was a planned simultaneous exchange of contracts and completion and this was the first error. If there had been a traditional exchange and completion separated by about a week, in which a deposit had been sent and signed contracts exchanged, perhaps the eventual problem would have been detected - well perhaps, anyway!

You see the true situation was that the owners of the house had no idea that their home was supposedly being sold! They were in America and the house was occupied by tenants.

Now there were various signs which could have made M & U suspicious, not least the fact that their client purportedly made payment of the difference between the purchase price and the mortgage direct to "Deen" and not via themselves.  The conspiracy was so brazen that at one stage apparently, someone claiming to be Mr. Dhuphar came to M & U's office for some reason or other - doubtless to add artistic verisimilitude to an otherwise bald and unconvincing narrative, as W S Gilbert might have put it.  Suitably lulled, M & U agreed completion by post and, bizarrely, after some unsatisfactory correspondence, sent over £700,000 to "Deen" without receiving even a signed contract, still less an executed transfer.

By the end of September, "Deen" had vanished, having never actually existed of course.  Unsurprisingly, the bank's £700,000 plus vanished with it and does not seem to have been seen since.

There are two big worries arising for solicitors as a result.  One is the potential for identity theft of solicitors firms where a criminal determinedly fakes a practice.  There is huge scope for stealing money as a result and not just by this particular type of mortgage based scam.  In fact, this should have been one of the harder frauds to pull off.  There were clear warning signs that something was badly amiss, as the Court of Appeal found when dismissing M & U's appeal.  However, suppose that those signs had not been present - what then?  Suppose that instead of failing to supply the necessary documents, "Deen" had sent through forged documents.  The fact is that solicitors are used to dealing with firms from all over the country, especially since the advent of referrers sending work to whichever firm is prepared to pay them a referral fee.  It never occurs to us to seek evidence confirming the identity of another firm of solicitors - are we now going to have to?

More troubling is an aside made by the Court in the judgment.  " If any such forgeries had duped the purchaser's solicitors, they might also have duped HM Land Registry, and the outcome might have been that purchaser and chargee would have been respectively registered as proprietors of the property and charge. By statutory magic, that would have given them titles to the property and charge respectively, albeit titles vulnerable to claims by the victims of the fraud to have the register rectified against them (see Schedule 4 to the Land Registration Act 2002). Such claims might or might not succeed."  (My emphasis).  It's this last point which will alarm the public.  One would have thought that if documents are nothing more than forgeries, there should be no question about setting aside a transfer, surely?  Is it really possible that a more competent fraudster could have deprived the legal owners of their property?

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspo.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.

Here we go round the mulberry bush

Question - How do you meet your commitment to reduce child poverty in the UK? ("The coalition government has pledged to support families and maintain the goal of ending child poverty in the UK by 2020." BBC report 20 May 2010)

Answer - you charge parents a fee and a percentage in order for them to secure maintenance from absent parents.  Simples!

The news from the Commons last night was the reversal of the Lords amendments to the legislation which will mean that applicants for child support to the CSA will have to pay an upfront fee of up to £100 for making the application.  There will also be a percentage charge of 9-12% of the maintenance collected.  The justification advanced for this is that people should be encouraged to make their own agreements as to the payment of maintenance.  The problem with this is that it expresses a profound ignorance of how we came to have the CSA in the first place.

Now for some leading politicians, this ignorance is understandable if not excusable.  The first Child Support Act was passed on 25 July 1991.  At that time, David Cameron was 24 years old, Nick Clegg was also 24 years old and George Osborne was just 19!  However, it's actually Ian Duncan Smith who has responsibility for the Welfare Reform Bill which is intended to enact the present changes and he was 37 in 1991.  So why doesn't he remember what was going on then?  Sure he was first elected the following year, but wasn't he keeping tabs on the politics of the day?  The Act was easily controversial enough to merit consideration and being remembered for future reference.

Before 1991, parents could make their own agreements.  They routinely did so.  But the Conservative government of the day decided that parental agreements and even court orders, made by consent or otherwise, simply weren't producing enough maintenance and the state was being called upon to make up the shortfall.  Hence the CSA and its formulae.  Now the Conservative led government of the day has decided that we can safely go back to the old arrangement of people deciding for themselves, with an agency to resolve any disputes.  Not so very different from the system which existed prior to 1991, just without the flexibility (or uncertainty!) of the courts.

Would anyone like to start a sweepstake on how long it is before manifest deficiencies become apparent in this brave new world?


POST SCRIPT newbiscuit.com has just blogged about the Welfare Reform Bill - you really need to read it!


newsbiscuit benefit caps

Blog Disclaimer: Nothing in  http://www.blogger.com/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.

Is there no end to the compensation culture?

Surely the ambulance chasers have gone too far this time?  There's a depressing new judgment on bailii.

Santa and his elf

It seems that a Mrs. Dufosse, together with family members, went to see Santa in his grotto in November 2009.  (Just don't get me started on the subject of how early it is appropriate to be getting into the festive spirit!).  Anyway, Mrs. Dufosse soon found herself on her back in the grotto and in some pain.  Underneath her was an icicle.  This being in November and in a centrally heated store, Selfridges to be exact, it was, of course, an artificial icicle.  Santa's little helpers, the ones from the insurance company, denied liability, so her claim for compensation went to trial before a district judge.

At trial, the main focus was whether or not the whole accident had been faked.  The insurers claimed that there had been no icicle there at all.  Now this was curious to say the least, because there undoubtedly was a plastic icicle there by the time the Selfridges first aider arrived.  Going equipped to claim could be a new offence under the Theft Act perhaps?  Unsurprisingly, that issue was resolved against Santa - the judge was satisfied that there had been an icicle there and that Mrs. Dufosse had fallen because inadvertently she had stepped on it.

The judge found that Santa's helpers had performed a very competent risk assessment, so there was no breach of statutory duty.  Good to see that Santa is well on top of modern Health and Safety Regulations!  Santa and his attendant elf said that although the lighting in the grotto was dim, it would have been bright enough to have seen the icicle on the floor.  However, the judge at first instance found Santa and his elf to have been blameless - it was just one of those thing, an accident.  The Court of Appeal, however, thought differently.

Lord Justice Rix said, "in my judgment, the learned district judge took an overly benevolent view of the performance by Santa and the Elf of their duties in this case and I would allow the appeal."  For some reason, the good Lord tends to write in long sentences with plenty of subordinate clauses.  Here's an example:
" It is true that Santa sat for the 90 seconds or so between one lot of visitors and the other on his throne immobile with nothing else to do than to survey his dominion for the sight of any icicles on the floor. But if the question is: what is the correct inference to make as a matter of probabilities, either that the icicle on which Mrs Dufosse fell, although there, was not there to be seen, or that on this one occasion, Santa and his Elf were not as careful in taking precautions against impedimenta on the floor as they should have been; then, in my judgment, the proper and indeed only possible inference, ultimately, is that on the balance of probabilities, the icicle was there to be seen."  Which being interpreted means, Santa and/or his elf should have seen the icicle before Mrs. Dufosse trod on it and fell. 

So it transpires that Santa is indeed liable in damages to Mrs. Dufosse after all.  Elf and Safety gone mad, I think!  (You knew it had to be said, didn't you?)

Discretion is the better part of family litigation

There's nothing new about the concept of privacy in family proceedings.  It crops up with some regularity both in relation to family finances and children proceedings.  My attention was drawn to this article in the Northampton Chronicle:

Northampton Chronicle

As far as I'm concerned, privacy is just common sense in family matters.  Few cases are of genuine broader interest to the public or to lawyers.  Any number of people think that their family dispute is out of the ordinary because of their opponent's behaviour, but sad to say, after years in family litigation, very little I encounter has the capacity to surprise me.  Yes, I can be disappointed by how clients and their former spouses treat each other but it very rarely comes as any sort of shock.

There's that old saying, don't wash your dirty linen in public.  In the family law arena, it has legal force, and with good reason.  People say and write things in family cases which years later they are almost certain to regret bitterly.  Worse, they can say things which cause the deepest imaginable embarrassment and hurt to their children.

The most notorious case of this type occurred last year and has so far resulted in prison sentences for two people.  Vicky Haigh was publicly "outed" by a High Court judgment last August - you can read about it here, for example:

Daily Mirror Vicky Haigh

Most recently, in December last year, Vicky has been imprisoned for three years for breaching an injunction which prevented her from having any contact with her daughter, presumably because the court decided that the way she behaved with her daughter was likely to cause harm to the child .  One of Vicky's supporters, Elizabeth Watson, was imprisoned at the time of the hearings in August, as reported here:

Elizabeth of the family Watson

So the message here could not be clearer - the Court will do whatever it has to in order to protect the child.  And one of the key interests of the child is not to have his/her privacy violated at the whim of one or other parent. Where there are individuals who refuse to comply with court orders, unfortunately the courts will have to exercise their powers to insist on compliance.  Whereas adults have some sort of control over their own destinies, children are uniquely vulnerable and so it is only right that first of all their interests should be foremost and secondly, that orders to promote their welfare should be enforced.

It just doesn't work this way - thank heavens!

Why-Ill-NEVER-let-exs-new-girlfriend-meet-son.

Just reading the title of this article is enough to raise the blood pressure.  The author is Kelly Rose Bradford and you can find a list of her articles for the Daily Mail at this link:

Kelly Rose Bradford Daily Mail articles

All very enlightening and moderate, I'm sure.  It seems that Kelly is a freelance journalist who writes for the Express as well as the Mail - now there's a surprise!  On her own website she describes herself thus: " Wearing my serious hat, I produce well-researched, thought-provoking, informative copy on health, pregnancy and birth, parenting and women's issues."  So which of these is the best descriptive term for her most recent article?

Option 1 - Well researched.  As this is just a rant about her own personal prejudices, research hasn't entered into the equation.  Nothing has been researched at all.  She has reacted out of her own apparently ungovernable emotions.  That has to be a fail.

Option 2 - thought-provoking.  Well, 1218 people have commented on the article as I go to press, and that in the space of only just over 24 hours.  Something has been provoked right enough.  As many of the replies are forceful but reasoned, perhaps thought has been provoked. The trouble is that I rather think that it would be equally accurate to describe it as "red mist inducing", where thoughts are certainly provoked but not necessarily constructive ones!

Option 3 - informative.  This falls foul of the same issue as option 1 - it's all entirely subjective.  It informs us of Ms. Bradford's prejudices but very little else.  An informative article would perhaps tell us whether in the wider community such a stance is considered acceptable.  Perhaps it would tell us how courts view this sort of reason for limiting contact with fathers (as it is most usually fathers who are affected).  No, it's just Ms. Bradford's take on what her son's father can and cannot do.  It doesn't even explain how it is that she believes that she has the right to dictate to her ex.

So does this article have any value?  Actually, it goes a little way to restoring my faith in human nature.  If you list the comments by approval rating, you find that all the top rated comments, entirely without exception, strongly take issue with our Kelly.  They find her actions and opinions obnoxious.  Conversely, the comments which are worst rated are all approving of the article.  The switch from disapproval to approval comes when the comments switch from supporting Kelly's stance to condemning it.

So what are the realities here?   Evidently the great British public simply doesn't share this restrictive and controlling approach.  What Kelly doesn't get, and most other people do, is that her son is not her possession.  I don't know why in this age of equality it remains the case that so many mothers see the children as theirs alone and not as shared with their fathers.

In my experience, courts firmly take the view that whereas it is appropriate to give a little time to allow children to get used to the new reality of separated parents before getting to know a parent's new partner, there is going to come a time when the new partner will have to come into the equation.  Just look at it from a practical perspective - let's say that Dad now lives with someone else.  In the dead of winter, if the children are not to be allowed to come into contact with the new lady, who is supposed to vacate their home when contact is taking place?  Does Dad have to take the children out on a miserable day, or does his new partner have to make herself scarce?  And who has the right to force this choice anyway?  Why does Mum think that she is allowed to call the shots?  The truth is that she isn't and if push comes to shove, a court won't permit her to.

That of course is the fatal flaw in Kelly's article.  She adamantly insists that there is no way she will allow it.  "There is just no way I am ever going to hand my little boy over every other weekend to play happy families with someone who is nothing to do with him."  But what if a court orders her to?  Is she going to disobey and find herself the subject of court sanctions?  How undignified and immature would that be?  Perhaps she needs to go down that route simply to get the benefit of the Separated Parent Information Programme (http://www.separatedparentsinformationprogramme.com/) - it certainly looks like she needs some serious help in getting a realistic view of how to do things. 

After all, it's not about her - it's about what's best for her son.  His voice is not even considered by her and his happiness is not even mentioned.  The reason for her ultimatum is her emotional demands and it has nothing to do with what's best for the child.  It's as well that the only standard the court applies is the child's welfare and that is why Kelly is ultimately doomed to fail.  There's no reason from the child's perspective that he should be excluded from any contact with his Dad's new partner, so a court won't forbid it.  However, it's clearly best for him to continue his relationship with his Dad, so a court will certainly make orders to ensure that he can.

Your first visit to your family law solicitor

I have just come across Alan Larkins family law blog.  Alan is a member of the team at a specialist Brighton firm, Family Law Partners.  He has recently written an immensely helpful blog on how to prepare for a first meeting with your solicitor, focused mainly on the financial and property aspects of a separation.  I can do little better than to post a link to it:

http://www.larkinslaw.net/2011/06/divorce-family-solicitor/

Time is money, certainly as far as lawyers are concerned.  If you prepare yourself in advance for your meeting, you can save a serious amount of time and hence cling on to more of your money - what's not to like about that?  Alan's list of things to do also helps focus on what your solicitor need from you in order to help you and, by implication, by missing  things off the list suggests what things just waste time.  If it's not in the list, it's unlikely to be of any value.  It will just take up expensive time and reduce your bank balance. 

I know you feel deeply hurt by what your partner has done to you but a full blow by blow account of how things have fallen apart takes up a great deal of time and very rarely affects what a court is going to order.  That's something which is conspicuously missing from Alan's list, and with good reason!