When is a parent not a parent?

Administrative errors are a common fact of life. All of us (lawyers included) are prone to mistake. Unfortunately, sometimes those mistakes can have quite significant consequences. The President of the Family Division, Sir James Munby, had to grapple with that problem when he heard the matter of HFEA 2008.

The matter concerned the applications of no less than 7 parents who were seeking declarations of parentage in respect of their children. In each case, the children concerned had been born by way of donor insemination, overseen by a number of fertility clinics. These parents clearly considered themselves to be parents of their children. However, the fertility clinics said otherwise. This was because in the case of these 7 parents, the correct forms to confirm that the donors consented to fertility treatment had either gone missing, or were not the mandated forms specified by the Human Fertilisation and Embryology Authority (HFEA).

The President indicated in his judgment that it would clearly be wrong to deprive a child and parents of a legal relationship because of an administrative error relating to incorrect paperwork. As far as he was concerned, the crucial issue was that each donor had provided written and informed consent to fertility treatment, as required by the law. He heard evidence at length from the parents, commenting that it was:

“…some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, [her] partner might not legally be the parent.”

The oral and written evidence presented to the President left him in no doubt that in each case, it was clear that the relevant consent to fertility treatment had been provided, even if not in the correctly prescribed manner. Declarations of parentage were accordingly made in favour of the 7 parents.

The President’s clear regard for the emotional turmoil and distress suffered by the parents contrasts starkly with his criticism of the “administrative incompetence” demonstrated by the fertility clinics. As a postscript to his judgment, he made a series of recommendations to the fertility clinics to avoid future repetition of the mistakes inflicted upon the 7 parents. However, he feared that given the number of fertility clinics in the UK (over 100), it was more than likely that the 7 parents he had dealt with were “only the small tip of a much larger problem.”

probate

A Stranger to Charity? The case of Ilot v Mitson

The Inheritance (Provision for Family and Dependants) Act 1975 gives the court the power to make orders where the deceased individual failed to make reasonable financial provision to a dependant upon their death. Claims under the Inheritance Act are often made by children of the deceased, or by surviving spouses. In deciding the outcome of such claims, the court must take into account competing interests. On the one hand, the court must consider that the deceased has the right to leave their assets to whomever they wish. On the other hand, the court can and should intervene when it is clear that the deceased has failed to make adequate financial provision (or failed to make any financial provision) for a dependant.

The recent case of Ilot v Mitson and Others highlights how the court exercises its discretion in deciding claims under the Inheritance Act. Mrs Melita Jackson died in 2004. Mrs Ilot was her only child. Sadly, Mrs Jackson and her daughter were estranged from 1978 onwards. Despite several attempts at a reconciliation between the parties, they remained estranged up until the death of Mrs Jackson.

In 2002, Mrs Jackson made a Will. Within this, she made no financial provision for Mrs Ilot, nor any provision for Mrs Ilot’s five children or her husband. The entirety of Mrs Jackson’s estate was left to various charities, including the RSPB and RSPCA. It was accepted by all involved that Mrs Jackson had not enjoyed any connection with the various charities during her lifetime. Unsurprisingly, Mrs Ilot made a claim under the Inheritance Act following the death of her mother.

By August 2007, Mrs Jackson’s estate was valued at £486,000. The circumstances of Mrs Ilot and her husband were extremely modest. They did not own a property and were renting. They had no savings. Their total combined annual income including state benefits was less than £19,500. Mrs Ilot was in her 50s and had no pension to look forward to upon retirement.

Following a hearing before a District Judge, Mrs Ilot was awarded £50,000. This sum was awarded to her on the basis that she had previously been living within her means and such an award, capitalised over time, equated to around £4000 per year. She appealed against that decision and the case eventually came before the Court of Appeal in July 2015.

The Court of Appeal agreed that the decision of the District Judge was unfair. They found that the District Judge had made an error in limiting his award purely because Mrs Ilot had been living within her means. The fact that Mrs Ilot was estranged from her mother and had no expectation of receiving anything from the Will should also be discounted. Moreover, they found that the District Judge had not considered that a capital sum of £50,000 awarded to Mrs Ilot would actually lead to a reduction in her state benefits. She would therefore be worse off under the order of the District Judge than if there had been no award in her favour at all.

The Court of Appeal noted that because Mrs Ilot was reliant on state benefits to supplement her income, the practical effect of any alternative award in her favour had to be carefully considered. In essence, the only real way to protect her ability to claim state benefits would be if she was awarded enough capital to enable her to purchase a property for herself and her husband. The Court of Appeal awarded her £143,000 to purchase a property as a result. They also gave her the option of claiming a further capital sum of £20,000, should she wish to do so. Claiming such a sum would impact on what she received by way of state benefits but it was down to her as to whether she wanted to make that decision.

If you are worried over the terms of your own Will, or believe that you may have a claim under the Inheritance Act, we are here to help.

A very modern family – The Case of Re A

Families come in all sorts of shapes and sizes. The recent case of Re A highlights the difficulties that the Family Court may encounter when dealing with family circumstances that are highly unusual.

The case concerns Alice, a 9 year old girl. Her mother was Rachel. Her father was David, a known sperm donor who lived abroad. At the time Alice was conceived, Rachel was in a civil partnership with Helen. Both Rachel and Helen had mental health issues. Helen also suffered from mobility issues and had two adult children of her own, one of whom (Susan) had her own physical and learning difficulties. Rachel and Helen separated in 2009. Rachel was detained under the Mental Health Act and so Alice went to live with Helen under a court order. Alice had lived with Helen since that point, although she maintained supervised contact with Rachel. Alice also had contact with David by way of social media and occasional visits.

In 2009, Helen started a relationship with Matthew, a female to male transsexual in the process of transitioning. Matthew also had mental health difficulties. During his relationship with Helen, Matthew played a role in caring for Alice. The relationship between Helen and Matthew ended in 2013. Matthew then entered into a new relationship with James. Matthew did maintain contact with Alice for around 16 months after his separation from Helen. Contact ceased in acrimonious circumstances. Following the cessation of contact, Matthew applied to the Family Court for permission to seek a child arrangements order, namely contact with Alice.

At the time of Matthew’s application, Alice had been diagnosed with autism spectrum disorder. She was also said to have experienced some gender confusion, spending a period of time identifying as a boy.

The issue before the Family Court was whether Matthew should be granted permission to proceed with his proposed application. Given the exceptionally unusual circumstances behind the application the Judge appointed a guardian for Alice to represent her in the proceedings. Matthew’s application was opposed by Rachel, Helen and David. Alice herself appeared to be aware of the proceedings but expressed no preference over their outcome.

The Judge heard that there were several factors that pointed towards granting permission for Matthew to proceed with his application. He had clearly played a role in Alice’s life, both before and after his separation from Helen. It was also argued that Matthew would not have required permission from the Family Court to proceed with his application, had he applied earlier. This was because he had lived with Alice for a period of 3 years. Matthew argued that he was essentially no different to any other step-parent and he could perform a role as a father-figure to Alice.

There were also a range of arguments that pointed entirely the other way. Alice was already engaged in relationships with a large number of adults and her guardian was concerned that any reintroduction of contact with Matthew would have to be both sustainable and of significant benefit to her. Rachel considered that Alice’s wellbeing and gender confusion issues had improved since David’s departure from her life. Helen was concerned that if permission was granted, Alice was at the risk of being introduced to conflict and stress.

The Judge faced a difficult task in weighing up the arguments from both sides. He was especially concerned at taking a global, holistic view of Alice’s circumstances when making a decision. The Judge noted that Helen’s health issues (and those of Susan) created considerable care needs. When combined with Alice’s autism and apparent gender confusion, the Judge was clear that if Matthew’s application proceeded, there was a clear risk to Alice’s welfare. He therefore refused permission for Matthew to proceed with his application.

It is worth remembering that for the majority of applications to the Family Court, parents and primary carers of children do not require permission to proceed (as Matthew did). However, grandparents and step-parents often will require permission to make applications. In many cases, that permission is granted. Re A is a reminder that having an arguable case is one factor that the Family Court will consider in such cases. However, simply having an arguable case is not always sufficient. The welfare of the child or children concerned is always a relevant consideration for the Family Court, In cases where there is a risk of litigation creating significant conflict and harm for the child or children concerned, the Family Court is entitled to err on the side of caution.

For further help or advice, we’re just a phone call away.

Parental Irresponsibility – The Case of Re H-B

It’s tough being a parent. For parents whose relationship has broken down, bringing up children whilst separated can be harder still. The recent appeal in the case of Re H-B (Contact) highlights just how badly separated parents can behave towards one another, in the process inflicting major damage towards their children that may last for many years to come. The case makes very depressing reading, whether as a family lawyer or a simple bystander. It highlights that occasionally, “family cases present problems that regrettably the courts cannot solve despite all their endeavours” and that solving those problems, “so often lies in the hands of the parents.

The background to the case is quite straightforward. The parents met in 1993 and were together for 10 years. They have 2 children, being J (who was 16 at the time of the appeal) and K (who was 14 at the time of the appeal). After their parents separated, the children lived with their mother and had regular contact with their father including staying with him on alternate weekends. He also assisted with the school runs. The tragedy of this case is that these parents clearly were capable of making child arrangements that worked well and allowed the children to maintain proper relations with both of them. Unfortunately, a single event in 2008 appeared to change all that.

The father had remarried in 2008 and in June of that year an incident occurred between J and the father’s new wife. In short, the new wife grabbed J and pushed her down on the sofa. J was only aged 9 at the time and it was accepted that the incident would surely have been frightening for J. The father did not appear to intervene effectively to prevent the incident and when confirming his version of events to the police, minimised the seriousness of the same. The mother was clearly unhappy at what had taken place. She applied for an order for the children to live with her and for contact between the children and their father to be suspended.

It did not take long for all sorts of allegations to be levelled at the father by the mother. There were complaints that he bombarded the children with telephone calls and he was criticised for behaviour at a school bonfire event. The children indicated that they did not wish to see him. Expert involvement concluded that the children required therapy and the father should maintain indirect contact with them in the interim. He was also advised to write a letter to the children, apologising for the events of June 2008. Whilst he did so, his apology was a conditional one and he refused advice to amend his letter. His letter was never sent as a result. The father was criticised for being stubborn. The mother was criticised for refusing to accept assistance and advice from professionals.

Therapy ended in February 2010 when J made allegations of sexual abuse by her father. The conclusion of the local authority that investigated the allegations was that the mother was the source of the allegations. It was by now clear that this was a complex and difficult case. The judge did not believe that further therapy would be helpful for the children. Instead, he wanted a finding of fact hearing to determine whether there was any truth to the allegations made by the children and the mother. It is hard to fault the logic of the judge here – his concern was that it could be highly damaging for the children to receive therapy on the basis that allegations are true when they are not.

The judge’s findings were given in December 2010. He concluded that most of the allegations made against the father were untrue. He could not say for certain where the false allegations came from but felt it was most likely that the mother was to blame. He was also critical of the father’s conduct. In short, “both parents were behaving with ridiculous hostility to each other.” It seems clear that the judge was hopeful that by addressing the parents directly, the message might sink in that they were both to blame.

Neither parent really appeared to accept that message. The father, perhaps frustrated but certainly misguided, did little to help himself. He sent postcards to the children including phrases such as “see you soon” and removed child benefit monies from a bank account. By the latter part of 2011 it was clear that the children were entrenched in their hostility towards their father and his family. The judge concluded that the proceedings should be brought to and end. Further therapy was tried but was delayed in getting underway and ended prematurely as the children were said to be reluctant to attend.

The father returned the case to the court arena in late 2012 and a further hearing took place in September 2013. The judge was again critical of both parents. The father was criticised for “startlingly unwise” behaviour. The mother was condemned for failing to support and promote direct contact and therapy for the children. The judge summarised the situation as follows:

“these parents are simply not able to organise themselves responsibly in relation to the father’s contact and they bear the burden of knowing that, between them, they have destroyed the relationship between these children and the father and his family.”

With reluctance, the judge concluded that he simply could not order the restoration of direct contact between the children and their father. The father appealed that decision but subsequently withdrew the appeal so the parties could try mediation. Mediation failed to resolve matters. It appeared that the father was unable to accept that the children did not wish to see him. A further hearing took place in July 2014. Once again, the judge did not hold back from criticising the parents:

“In my opinion the mess that these parents have made of their shared responsibility for their children is a disgrace. I predict that it will only be in later life that the manifestations of what these parents have done to their children will become apparent as the children struggle to function as adults following the skewed childhood that their parents have both chosen to give them.”

The judge, once again, concluded that to order direct contact between the children and their father would be futile. He made an order for indirect contact only, once every 2 months. The father was to be kept informed of their progress at school and could visit their school when the children were not present. As the father still planned to continue fighting his case through the court arena, the judge made an order preventing the father from making any further applications regarding the children without first obtaining permission from the court.

The father appealed against that decision. The Court of Appeal dismissed the appeal. They could find absolutely no criticism of the judge’s conduct and wholly endorsed the approach he had taken to a complex case. The President of the Family Division commented:

“…the stark truth is that responsibility for the deeply saddening and deeply worrying situation in which J and K now find themselves is shared by their parents and by no-one else.”

Whilst the President condemned both parents for creating and causing the situation, he was very clear that it was only the mother who now held the ability to move matters on. He plainly addressed her within his judgment and felt it was now her duty towards the children to recognise her failings towards the children and make every effort to restore their relationship with their father. It appears that the judge was less than hopeful that the mother would take those words to heart. He warned her that, sooner or later, the children would become fully aware of their parents’ failures and this could lead to them being estranged from both of them. The President described that outcome as one “that haunts me in cases like this.” It is hard to disagree.

A bitter pill to swallow

Much media attention was generated by the decision of the Supreme Court in the recent case of Wyatt v Vince. Sensationalist newspaper stories proclaimed that ‘the floodgates have opened’ for former wives to make financial claims against their former husbands (and vice versa), even when many years have been and gone from the date of their divorce.

It is important that in the face of the above claims, a reality check is imposed. Firstly, the facts of the case are truly exceptional. Ms Wyatt (whom we will call the wife to keep things simple) and Mr Vince (whom we will call the husband) were married in 1981. They had a rather unconventional (some might say hippy) lifestyle and spent periods of time together and apart. However, in 1992 the wife started divorce proceedings and the divorce was completed at the end of October 1992. It would be fair to say that at that point in time, neither the husband nor the wife had any assets to their name.

There still exists a common misconception that when parties are divorced, the completion of their divorce brings to an end the ability of either party to make financial claims against the other in respect of their marriage. This may be the case in other jurisdictions (and it may appear perfectly logical) but the laws of England and Wales say otherwise. We don’t know whether or not the wife made any financial claims against the husband in her divorce petition. No copy of the petition appears to have survived. However, it actually doesn’t matter. The crucial thing is that the wife did not remarry after the divorce. Her ability to make financial claims against the husband remained live.

It may have been the case that in 1992 there was no money available to either party but the husband fared far better than the wife after their divorce. From very humble beginnings, the husband developed a business specialising in the commercial supply of wind energy and achieved remarkable success. His company, Ecotricity Group Ltd, was valued at over £57m at the time of the recent court proceedings. The wife was not so fortunate and her own assets were extremely modest. However, fortune and fame tend to go hand in hand and in 2011, the wife made an application for financial provision from the husband, including interim payments to fund her legal costs of the application.

The husband was, understandably, less than impressed. A period of over 19 years had passed since their divorce. Why should he have to pay the wife anything when all of his wealth and success had been generated after their marriage came to an end? The husband applied for the wife’s claim to be struck out. The High Court did not agree and they ordered him to pay interim payments to the wife to fund her legal costs. The husband appealed successfully at the Court of Appeal. The wife then appealed herself, this time to the Supreme Court.

The issue that the Supreme Court was asked to consider was not: ‘it is fair for a former spouse to make a financial claim against their former spouse once 19 years have passed since their divorce?’ Instead, it was whether or not the Family Court has the ability to strike out such a claim as amounting to, essentially, an abuse of process because there is no reasonable prospects of success. In simple terms, the Supreme Court was not asked to rule upon the merits of the wife’s case (more of that later) but upon her ability to make a claim in these particular circumstances.

The husband’s case was that in matters such as debt, contract and personal injury cases, the civil Court has the specific power to strike out claims that are without merit. It has the power to give summary judgment against a party where it appears clear that their case stands no realistic prospect of success and it would be unfair for it to proceed to a final or full hearing. Given the facts, the husband suggested that a similar approach should be applied by the Family Court over his wife’s case.

To the surprise of many, the Supreme Court rejected the husband’s case and the view taken by the Court of Appeal. In an unanimous decision, the Supreme Court held that the approach taken by the civil Court was ‘incompatible’ with that of the Family Court. Their view was that the wife’s claim was legally recognisable and any similar claim should not be treated as an abuse of process solely because it has no real prospect of success. The Family Court can certainly strike out an application, but not before its merits have been properly considered. There had been no proper consideration of the wife’s application, so they said.

The husband has described the decision as ridiculous and it is fair to say that many family lawyers (and no doubt many husbands) would agree with him. The wife was no doubt ecstatic at the decision but one imagines that her own legal team will be at pains to emphasise to her the following:

  • The Supreme Court described her application as facing ‘formidable difficulties.’
  • She has not been awarded anything yet.
  • She may not receive anything at all.
  • Her suggestion that she was entitled to a sum of £1.9m was described as ‘out of the question.’

The wife’s claim is now set to proceed to a hearing where the parties will be instructed to use their best endeavours to negotiate a settlement without the need for the court to make a final decision. The eventual outcome of this case will be fascinating but in many ways, the extremely unusual facts mean that caution is required. It is a rare case indeed when parties divorce with nothing and 19 years later, one of them turns out to be a multi-millionaire.

It does, however, remain common that when parties divorce, no steps are taken by them to formally resolve financial matters between them. There are, in reality, a number of reasons for this:

  • There are no assets available for division.
  • The parties ‘trust one another’ and don’t feel it necessary to take formal steps.
  • The parties do not obtain legal advice at the time.
  • The parties cannot afford to obtain legal advice.
  • One party wants to obtain a consent order to resolve matters but the other party does not.

The exact reasons that apply to Ms Wyatt and Mr Vince have not been clearly established; one suspects it was the fact that there was nothing to divide between them in 1992 that is most likely. Neither of them could ever have imagined that the husband would have such amazing success in his future endeavours. Wyatt v Vince is far from an everyday situation for a previously divorced couple. Its facts are unlikely to be repeated on a regular basis. It does, however, serve as a warning and wake-up call for those couples who did not formally resolve financial matters at the time of their divorce. Prevention is usually better than the cure. As Mr Vince is finding out, the cure can be a very bitter pill to swallow.

If you are unsure where you stand after your divorce, get in touch with us.

Be careful what you wish for – the case of SC v YD

The High Court has recently heard an interesting case on whether an earlier ‘agreement’ between two parties can be admitted as evidence in subsequent court proceedings between them.

The case of SC v YD begins back in early 2013. The parties (described as mother and father) had been in a lengthy relationship of over 17 years. They were not married. They had five children whom were aged between 16 and 6 at the time of the recent hearing. The relationship ran into difficulties and in October 2012 the father informed the mother that he was worried they were drifting apart. He wanted the two of them to continue to live together with the children in the family home and hoped that they could resolve their differences. The family home was solely owned by the father and valued at between £2.5m and £2.75m. It was mortgage free. The father had total assets valued at around £14.5m. The mother had very limited assets, mainly comprising of a modest flat bought for her by the father.

In late February 2013 the mother returned from a trip to New York. The father presented her with a document. This was entitled “Agreement between SC and YD.” It was dated 24 February 2013 and was drawn up by the father. The document, referred to as ‘the agreement’ specified the following key points:

  • That the parties wanted the family home to remain a base for the children for as long as was possible;
  • That the father hoped the parties could share use of the family home until the youngest child (aged 5 at the time of the agreement) joined a weekly boarding college at the age of 13;
  • That the family home would not be sold before the end of February 2016;
  • If the family home was sold after the end of February 2016, the mother would receive half of the sale proceeds;
  • That the mother would retain her modest flat.

It should be pointed out that the mother did not sign the agreement. It was also accepted that neither party had received any legal advice when it was presented to her. The mother was distressed to read the document and refused to sign it.

The parties subsequently separated in April 2013 and the mother started court proceedings very shortly thereafter. During the course of the proceedings, the mother sought permission to rely upon the agreement. Specifically, she wanted the content of the agreement to form part of the evidence that the court would consider at a forthcoming final hearing to be heard in July 2014.

The father opposed the inclusion of the agreement as part of the evidence. No doubt by that point his position had hardened during the course of prolonged litigation. His argument was that the agreement was privileged, namely because it was a genuine offer to settle litigation between the parties. The issue was decided originally by a Deputy District Judge. He heard submissions from the parties’ legal representatives and ruled that the agreement could be admitted as evidence. The father sought permission to appeal the decision of the Deputy District Judge.

The matter came before the High Court on 17 June 2014. It was accepted that in order for the agreement to attract privilege, the following criteria must be met:

  • The document should be written in an attempt to resolve actual or pending litigation between the parties, and;
  • It must be inferred from the context of the document that there was an offer of settlement for which a party who made the offer can claim privilege.

The High Court agreed with the decision of the Deputy District Judge. Their reasoning was identical to that of the Deputy District Judge. Put simply, in late February 2013 neither the mother nor the father were seeking to resolve actual or pending litigation. There was no real dispute between the parties at that point in time and therefore the agreement was not an effort to resolve a dispute. The agreement was not privileged and it could therefore be admitted as evidence. The father was refused permission to appeal.

The main lesson of the above is that if there is even limited contemplation that a separation is possible, prompt legal advice can be invaluable. The father was essentially a victim of (from his perspective) unfortunate timing in this particular case. Had he presented the agreement to the mother after the parties had separated, it is possible that the court would have reached a different conclusion.