Monday 25 February 2013

When is a parent not a parent?

The Irish High Court is due to give judgment next month in what is being described as a “landmark” surrogacy case.

Mr Justice Henry Abbott is being asked to rule on whether the genetic mother of twins born via “host” surrogacy is entitled to be named on their birth certificates as their legal parent.

Ireland's High Court, Dublin (much nicer than ours...)
A host surrogacy is an arrangement that uses the egg of the intended mother (or else that of a donor) combined the sperm of the intended father (or else donor sperm).  It is sometimes called “gestational” or “full” surrogacy.

This is in contrast to an arrangement that uses the egg of the surrogate mother and the sperm of the intended father (referred to as “traditional”, “partial” or “straight” surrogacy).

So, the twins in the Irish case are genetically the children of the intended mother and father.  They have no genetic relationship to the surrogate who carried them.

The intended parents brought the court case when the Irish Chief Registrar refused a request to name the genetic mother on the children’s birth certificates.

The court in Dublin heard argument from lawyers for the intended parents, and for the State.  The State is opposing the application, saying that only a woman who gave birth to a child can be viewed as his or her legal mother.  Lawyers for the State say that an amendment to the Irish Constitution in 1983 (which introduced a constitutional ban on abortion) made this “absolutely clear”. 

The Constitution was also referenced by the legal team for the genetic parents.  They say that the State’s stance amounts to a failure to protect and vindicate their constitutional rights to form a legal family.  They claim the State’s approach is to “ignore the biological truth” and to “tear up a scientific test” required in legislation to establish parentage.  Last, they say that the State’s approach is discriminatory:  for birth registration purposes, a child’s father is determined by genetic factors, but not so for his or her mother. 

A fuller account of the competing arguments appeared in the Irish Times at the end of January.

The dispute between these parents and the State comes about, in no small part, because there is no specific law in the Republic of Ireland that regulates surrogacy.  Ireland’s Minister for Justice said last year that he would consider legislative reform of the country’s laws on surrogacy.

The starting point in the UK is no different than in Ireland.  At birth, the woman who carried the child is always the legal mother, even if there is no genetic relationship (as in the Irish case).  The child’s legal father, or second parent, will usually be the surrogate’s husband, civil partner or cohabitant.  If treatment was performed in a licensed clinic, and the surrogate has no partner, the child will have no legal father or second parent. 

But where the UK differs from Ireland is in providing for a way to alter the legal parentage of a child born through surrogacy.  The commissioning parents may become the child’s legal parents by applying for a Parental Order.  There are various conditions which must be met, which include:

·                    the commissioning parents must be married, civil partners or in a committed relationship;

·                    the application must be made within six months of the child’s birth (this is an absolute requirement, and the time period of making the application cannot be extended);

·                    the surrogate (and any other legal parent) must agree to the Parental Order, and

·                   no money or benefit (other than for expenses) may have been paid in relation to the surrogacy.
 
If a Parental Order is made, the commissioning parents will become the child’s legal parents.  The surrogate (and any legal father or second parent), will cease being the child’s legal parents.  A new birth certificate will be issued for the child naming the commissioning parents.

UK law presently does not allow a single commissioning parent to apply for a Parental Order. 

Judgment in the Irish case is due on 5 March.  There is at least a fair possibility that, whatever the decision, the case will then travel onwards to Ireland’s highest court, the Supreme Court.


Friday 22 February 2013

Of Lost Boys and Known-Donor Fathers

Sleep all day. Party all night. Never grow old. Never die. It’s fun to be a vampire."

Anyone who was sentient and under fifty in 1987 will recognise the tagline above from “The Lost Boys”.  Over twenty-five years later, I can still remember the buzz the movie generated.  Vampires were cool and sexy, teenage vampires more so.  A large part of the appeal was boy eye-candy in the form of a brooding young actor called Jason Patric. 

Patric has popped up from time to time since, most recently in the context of a dispute with his former girlfriend about their son.

According to media reports, Patric is involved in a heated dispute with Danielle Schreiber.  The two were an item for many years, but went their separate ways in 2009.  Around the time of their separation, apparently Patric donated sperm so that Schreiber might choose to conceive a child.  The understanding was that he would have nothing to do with the raising of any child she had using his genetic material.

Schreiber duly conceived a child with the help of a doctor using Patric’s sperm.  Their son, Gus, was born in December 2009.

Patric had no involvement in Gus’s life until 2011, when he and Schreiber rekindled their relationship.  The reconciliation was short-lived, and the two parted ways once again in May 2012.  It was at that point that Patric decided he wanted to continue to be involved in his son’s life.

The matter came before a Judge last week, but was apparently halted and Patric's application dismissed.  This was because of a local law that provides that if:

·                     a man donates sperm to a woman to whom he is not married;
·                     she conceives a child, and
·                     the conception occurs with the help of a doctor


Patric and Schreiber with Gus

then the man is not considered the child’s legal father.  He has no claim for custody or paternity rights.

Reports suggest that Schreiber is prepared to let Gus spend time with Patric on a voluntary basis, but objects to a court-imposed regimen of time. 


Known-Donors in England and Wales


Patric’s case resonates with legal developments this side of the Atlantic affecting known-donor fathers and their children.  As with Gus, the mechanics of conception can be very significant when determining in the child’s legal parent/s.  In a nutshell:

·                   if the mother is married or in a civil partnership at the time of conception, she and her husband / partner will normally be treated as the child’s legal parents.  The known donor will have no legal status as the child’s father;

·                   if the mother has a partner (or either gender) but is neither married nor in a civil partnership at the time of conception, then legal parenthood depends on the method of conception. 

If at a licensed clinic, then the mother’s partner may be treated as the child’s other parent.  The known donor will not be the child’s legal father. 

If through home insemination, the known donor will be the child’s legal father;

·                  if the mother is single, then again the method of conception dictates legal parenthood. 

If at a licensed clinic, the mother might be able to establish that the known donor should not be treated as the child’s legal father.  However, this is not automatic.

If through home insemination, the known donor will be the child’s legal father.

Whether the known donor is considered the child’s legal father has, unsurprisingly, some important consequences.  For example, a known-donor legal father has an obligation financially to support his child.  This is so even if the parents earlier agreed to the contrary.  There have been several high-profile cases – widely reported in the media – where a known-donor legal father has been required to pay child support in circumstances where (at the time of conception) there was a clear understanding he would bear no financial responsibility. 

Any agreement reached between the known-donor and the child’s mother is not binding.  The Court of Appeal in A –v- B and C [2012] 2 FLR 620 (in which I represented the father) said that pre-conception intentions were relevant, but neither could nor should be determinative.  People change their minds.  Human emotions are powerful and inconstant. What adults looked forward to before engaging in the reality of conception, birth and the first experience of parenting might ultimately prove to be an illusion or fantasy.  The court’s only focus was on the child’s welfare and developing rights.  If those considerations required a departure from any pre-conception agreement, then so be it.

I suspect Patric’s case would have been dealt with very differently if brought before a court in London.  In a very recent decision – Re G (A Minor); Re Z (A Minor) [2013] EWHC 134 (Fam) – two known donor fathers were given permission to refer a dispute about custody to court.  Although not legal parents, the Judge considered that their genetic and psychological parenthood were also important, and were not automatically extinguished by the removal of the legal status of parenthood.  This decision also confirmed that the granting of permission is fact-specific.  There will be cases where the known donor has played no role in the child’s life, or had no contact.  In those, it may not be appropriate to give permission.  However, where there has been a history of contact by the child with the known donor, it is likely that permission will be granted.

Thursday 21 February 2013

LGBT Adoption Round-Up


You know what it’s like:  you wait around for ages for a legal development in the arena of LGBT adoption, and then half a dozen come along all at once.  In this blog, I look at some of the more significant news that has emerged over the past fortnight from around the world affecting alternative adoptive families. 

Puerto Rico

The Supreme Court, in a 5-4 decision, affirmed (20 February 2013) a ban on adoption by same sex parents. 

The court was considering the case of a Puerto Rican lesbian who sought to legally adopt her partner's child.  The couple challenged a local law that "bans the adoption of a minor if the biological mother doesn't give up her rights, unless the couple consists of a man and a woman."

Puerto Rico’s highest court concluded that that law was valid, as Puerto Rico's constitution “does not prohibit discrimination based on sexual orientation.  The court acceded to arguments that the “traditional family” comprising a father and mother “best protected the well-being of minors”. 


Interestingly, the court's president, Federico Hernández Denton, disagreed with the majority decision.  He called the ruling unconstitutional in his minority Judgment.  The three other dissenting judges said they did not believe the constitution prohibited adoptions by same-sex couples, and that they would have liked the State to recognize second-parent adoption. 

The Russian Federation

According to media reports, the Russian State (20 February 2013) called the adoption of a Russian boy by a US woman who revealed she was gay only after the adoption concluded a “serious worry.”

Konstantin Dolgoy, Russia's human rights envoy, said the boy now is facing circumstances with his gay American family that are “harmful to his psychological health.”

The woman was living in a same-sex relationship, but decided not to disclose this during the adoption proceedings.  Her sexuality and relationship status only came to light when she and her partner separated several years later, and a dispute arose about custody of the child. 

Dolgoy’s homophobic rant continued thus:  [The boy] was sucked into an argument over a relationship that was quite dubious from the moral point of view.  We believe that [his] situation is unacceptable and harmful to his psychological health.”

France

France’s National Assembly (on 12 February 2013) adopted, on first reading (in a 329-to-229 vote), a bill affording marriage equality to same sex couples. 

The bill also opens up adoption to married people of the same sex, whether it be the joint adoption of a child by both spouses or the adoption of one spouse’s child.

The draft legislation includes adaptation measures, notably for determining the adopted child’s surname, since the current rule – whereby the child is given the father’s surname unless the parents decide otherwise – is inappropriate in the case of same-sex couples.

The bill now goes to the Senate for consideration, which is controlled by President Francois Hollande’s Socialists and his political supporters. 

"This law is a first necessary step, a social evolution that benefits society overall," said Socialist representative, Corinne Narassiguin, announcing her party's support for the measure. "Opening up marriage and adoption to homosexual couples is a very beautiful advance. ... It is an emblematic vote, a vote that will mark history."

Germany

Germany's Federal Constitutional Court gave its decision (19 February 2013) in a case about gay couples’ adoption rights.

The case concerned two women, one of whom had adopted a Bulgarian child some years earlier.  The other woman sought permission to adopt the child, which was denied.  The law permitted a civil partner to adopt his or her partner’s biological child, but not their stepchild or adopted child. 

The court held that a German constitutional provision that "marriage and the family shall enjoy the special protection of the state," could be used to justify ruling out same-sex partners adopting the other partner's adopted child.
 
Presiding Judge Ferdinand Kirchhof said:  "In marriage as in a civil partnership, adoption provides the child in the same way with legal security and material advantages in terms of care, support and inheritance law."

The court directed the government to draw up new legislation by June 2014.

The decision means that same-sex couples can now adopt the same child sequentially (that is, at different times to one another) in Germany.  Paradoxically, however, they still cannot adopt children together as a couple.

Austria

In the case of X and Others v. Austria, the European Court of Human Rights ruled (19 February 2013) that Austria had violated the European Convention on Human Rights.

The case concerned the inability of a woman in a same-sex relationship to adopt her long-term partner’s son without severing the birth mother’s legal ties with the child (that is, a second-parent adoption).

The Grand Chamber of the court in Strasbourg (comprising 17 Judges), found there was no persuasive reason to treat the couple differently from an unmarried heterosexual couple in the boy's adoption.  Under Austrian law, allowing the woman to adopt the boy would have severed his birth mother's parental rights, based on a 2006 Austrian decision that the term "parents" was intended to mean two people of different sex.

The court found that Austria had discriminated against the couple.  It ordered the government to pay them €10,000 in damages and about €28,500 in costs and expenses.

   
So, some progress balanced against some backsliding.  As the news from Puerto Rico and Russia demonstrates, there remain a good number of stalwart bigots who cleave to the view that a parenting ability is linked to the gender of the adults to whom one is attracted and with whom one falls in love.  And all despite the decades of evidence that has been consistent in showing that gay and lesbian parents are as capable as heterosexual ones, and their children as psychologically healthy and well-adjusted as children reared by heterosexual parents.

We’ve come so far, but we’ve got so far to go…


US Supreme Court gives decision in Transatlantic Custody Dispute

The US Supreme Court gave Judgment on Tuesday in a long-running custody dispute.

The court is the highest in the US, which seldom deals with family cases unless they raise questions of national significance.  The Judgment relates to Eris Chafin, the daughter of Jeffrey and Lynne.  Jeffrey is a US national and Lynne is Scottish.

The US Supreme Court Building
Lynne and Eris lived in Scotland from 2007, whilst Jeffrey was serving in the US Army as a bomb disposal expert.  Their relationship ran into trouble in 2010.  Lynne travelled to the US with Eris to try to salvage the relationship.  She was deported for overstaying her visa.  She was forced to return to the UK leaving Eris with her father.

In 2011, a Judge in Alabama gave Lynne permission to take Eris back to Scotland.  This was on the basis that that was Eris’s habitual residence under an international treaty dealing with parental child abduction, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”).

Lynne left the US with Eris for Scotland shortly after this decision, which Jeffrey appealed.  The appeal court – the 11th US Circuit Court of Appeals - dismissed the case, saying the issue was academic because Eris was already in the UK and therefore beyond the US court’s control.

The Supreme Court, however, disagreed.  The court, consisting of nine judges, unanimously decided the 11th US Circuit Court had got it wrong.  It should have considered the merits of Jeffrey’s case.  It was not enough just to say the point was moot because the child was now living outside of the US.

Chief Justice John Roberts wrote:  “This dispute is very much alive [and the parents] continue to vigorously contest the question of where their daughter will be raised.”

The other Judges agreed, and were critical of the time that had been allowed to pass.  Justice Ruth Bader Ginsburg commented that dragging out the case “is hardly consistent with [the Abduction Convention’s] objectives.”

Reports indicate that there are custody proceedings already underway in Scotland about Eris.  No doubt, on the back of the Supreme Court’s decision, a renewed custody application will be made about her in Alabama.  It is quite possible there will be two conflicting decisions made by courts on each side of the Atlantic.  An issue will then arise about whether and how a Scottish decision is recognised in the US, and vice versa.  Eris’s future is far from certain, and court proceedings seem likely to wear on for some time. 

The US Supreme Court was dealing with one international agreement, which focuses on parental child abduction.  However, there is another agreement from the Hague Conference that would help in Eris’s situation.  This is the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”).

The Child Protection Convention contains rules on which courts should take responsibility for resolving disagreements about children and their upbringing.  The general approach is that it is the courts in the country where the child usually lives, although there are some exceptions to this.

The Child Protection Convention also has a rule to ensure that litigation is not run in parallel in two countries.  This is to prevent potentially conflicting decisions.  Under the Convention, a court should not make decisions about a child’s future if it knows a court in another country is already considering the matter. 

Last, the Child Protection Convention contains a series of rules so that custody decisions are recognised internationally.  So, a parent who does not like a decision taken in another country cannot just ignore it.  Under the Child Protection Convention, almost all custody decisions taken in Country A must be respected and implemented in Country B.

The Child Protection Convention started operating in the UK in November 2012, so it is still a pretty recent development in custody cases like Eris’s.  As at today, it operates between the UK and most EU countries, some non EU-countries in Europe, and others further afield (for example, Australia, Ecuador, Uruguay and Morocco).  The Russian Federation will come on board in June 2013.

Unfortunately for Eris and her parents, the Child Protection Convention has not entered into force in the US.  There is not presently any indication about when it will.  In the meantime, therefore, Eris and her family will have to endure the inevitable stress, uncertainty, anguish and expense of custody proceedings in two countries. 

Anyone in a situation similar to that facing Eris and Mr and Mrs Chafin should take legal advice from a specialist who knows his or her way around the Child Protection Convention, and how it can help families.  Whilst the Convention cannot currently aid Eris, there are many children it can and will assist. 

Tuesday 19 February 2013

Term-Time Family Holidays


Introduction

Every working parent knows this story.  Holiday prices skyrocket during high season – in other words, the school holidays!  Flights and accommodation can be up to twice as expensive as during the school term.  So, the very time when children are most able to go on a family holiday is the time one is least affordable.  Many parents find themselves having to overlap the family holiday with part of the school term.  Otherwise, there would be no prospect of a family holiday at all.  And the issue is all the more profound for children of separated parents, already under financial strain to run two homes and fund two family holidays, instead of one.

A survey of 2,000 parents conducted by a travel insurance firm in 2012 revealed the following about term-time holidays:

·                  55% of respondents had taken a child on holiday during the school-term;
·                  20% had sought permission for a term-time absence, which had been refused;
·                  12% had lied to take their child out of school for a term-time holiday.  The most common excuses deployed were illness, visiting sick relatives and attending a family wedding;
·                  57% of respondents took their children out of school for a term-time holiday because it was cheaper;
·                  32% were unable to afford a family vacation during the school holidays;
·                  26% said they, or their partner, could not get time off work during school holidays;
·                  43% would take their child out of class for a week for a term-time holiday.

The Legal Framework

What is the legal position?  Well, parents have a legal obligation to ensure their children receive what is described as a “suitable full-time education”.  A child must be educated when he or she is of “compulsory school age”.  This means between the ages of 5 and 17.  From 2015, compulsory school age will be expanded to include children between 5 and 18 (under the Education and Skills Act 2008).

Parents of a child of compulsory school age must register him or her for school (or else make arrangements for home-schooling).  Once registered, the parents have a legal responsibility to make sure the child actually attends school.  If there are truancy issues, the school and the Education Welfare Service (EWS) will provide support initially to address those. 

If truancy continues, the approach may become more punitive.  Parents may be issued with a Penalty Notice for unauthorised absences.  A Penalty Notice may be issued by the headteacher, the police or the Local Authority.  The fine is presently £60 if paid within 28 days, and £120 if paid within 42 days.  Parents who do not pay in time may be prosecuted. 

Other more serious measures include a School Attendance Order, an Education Supervision Order; and / or court prosecution.  The Department for Education (DfE) has published guidance on the support and sanctions available to reinforce the parental obligation to ensure school attendance.   
  

Authorised Absences

Headteachers are entitled to authorise pupils to be absent for up to ten days each year (and in rare situations, for longer periods).  This is intended to cover life’s unexpected eventualities that may result in a child being away:  illness, bereavement or inability to get to school due to bad weather.

However, many headteachers were and are approving absences under this power so that children could go on a family holiday.  This so incensed the Education Secretary that, last February, he announced a proposal to abolish the right of headteachers to authorise absences at all.  A spokesperson at the DfE was quoted as thus:

Any time out of school has the potential to damage a child’s education.  That is why the government will end the distinction between authorised and unauthorised absence.  This is part of the government’s wider commitment to bring down truancy levels in our schools.  There will be stricter penalties for parents and schools.”

The DfE’s stance appears in the meantime to have mellowed.  It maintains that headteachers are not entitled to authorise absences for holidays during term-time.   However, there are no current plans to introduce a blanket-ban on headteachers approving term-time absences. 

The Schools’ Approach

Despite the government’s hard-line approach, it seems that some headteachers are adopting a more pragmatic and realistic stance.  This is borne out by the anecdotal experiences of our clients, by statistics and by local policies on term-time holidays.
Looking at the statistics, in Spring 2012, 25,525 half-days in primary school were missed due to authorised holidays (11.5% of all primary absences).  In secondary schools, the figure was 7,521 half-days for the same period (3.2% of all secondary absences). 

Exact polices differ from region-to-region, and from school-to-school.  Some examples of this variance include the following: 

·                   Melinda Tilley, Oxfordshire County Council Education Cabinet Minister (quoted in September 2012 in the Oxford Mail), says whether headteachers approve term-time holidays “… totally depends on what they’re doing with those days that they aren’t at school.

“If a child is going with its (sic) mum and dad to see his or her grandparents, that’s educational in a way and certainly something that’s good for the child.  It is so much cheaper to go on holiday during term-time and I think we should be tackling it from the other end because holidays, flights and everything else are way overpriced in school holidays.”

·                   the EWS for Shropshire Council has produced a leaflet highlighting the impact on a child’s education of absences during the school term.  It is clearly intended to discourage parents from arranging holidays during term-time. 

·                   Devon County Council has produced a form for parents designed to request a leave of absence during the school term, to include for a term-time holiday;

·                   Cambridgeshire County Council’s policy discourages parents from arranging family holidays during term-time.  It says absences will be authorised only in exceptional circumstances.  A holiday that is a unique, one-off never-to-be-repeated occasion which can only take place at the time requested might be exceptional.  Permission is likely to be refused if the reason given is that the holiday is cheaper in term-time.

These are just a random selection of guidelines from around the country.  Many are available online.  The common themes emerging are these:  term-time absences are generally discouraged; ultimately, the headteacher is entitled to exercise discretion to approve an absence of up to ten days; factors a headteacher might take into account when considering whether to approve a term-time absence include: 

o                    the child’s previous attendance history;
o                    the child’s age;
o                    the stage of the child’s education
o                    the time of year (does it clash with SATS, exams, etc?), and
o                    the nature of the trip (how is it exception?).
  

School Work and Catching-Up

There is no legal obligation on schools to set work for children absent during term-time.  The approach to this issue, as with authorising absences in the first place, varies from region-to-region.

For example, the East Riding of Yorkshire Council puts the obligation firmly on parents in its policy.  It is the parents who must, if term-time absence is authorised, ensure their child catches up on any missed school work. 

Milton Keynes Council has produced workbooks for children who will be away from school for extended holidays.  The focus is on making the holiday itself an educationally rewarding experience.  Parents are expected to help children complete the workbook during the vacation.


Term-Time Holiday Top Tips for Parents

1.                Find out now, well in advance of it becoming an issue, what your child’s school’s policy is on term-time holidays.

2.                If you are considering arranging a holiday during the school term, seek permission early, and before any booking is made and before any money changes hands.   

3.                Where parents are separated, any request for an authorised absence from school should be discussed (and ideally agreed) before the school is approached.

4.                If permission is given, be prepared to help your child catch-up on any school work missed.  Most schools, even though there is no positive obligation, will help with this.

5.                Consider whether and how the holiday can help further your child’s education and imagination.  The Milton Keynes’ workbooks provide some excellent pointers for how this can be done.

6.                Timing is everything:  important activities tend to congregate around end of term – exams, school plays and concerts, etc.  Have the school calendar very much in mind when considering when you might take a term-time holiday.

7.                Children get jet lag in the same way adults do.  If the holiday is a long-haul one, make sure you take into account the time it will take for your child to readjust on his or her return home.  Allow for a couple of days so that body clocks can recalibrate before returning to school.

8.                Be honest with your child’s headteacher.  If the holiday is planned to allow your child to be part of a family event – a wedding, an anniversary, or an important birthday – then say so.  This may prove the difference between an absence being authorised or not. 

9.                If permission for a term-time holiday is not given, consider the following to make a vacation during the school holidays more affordable: 
 
(a)               look for all-inclusive packages - with the cost of food, drink and entertainment included, costs will be relatively capped and there should be few surprises;
(b)               investigate less popular destinations – these may have all of the features and activities of more popular ones, but at a fraction of the cost;
(c)               compare air travel prices from all UK airports - driving or taking the train to a different airport might be significantly cheaper than flying from the nearest one to home. 
(d)               if in self-catering accommodation, go native!  Follow the locals’ lead, and shop at local markets and stores to help keep costs down. 

The closing message for parents is to ask your child’s headteacher for permission early.  This will ensure holiday plans are not ruined if an eleventh-hour request to approve a holiday is refused.