FAMILY/CHILDREN LAW: An Introduction to London (Firms)

Greater Transparency in the Family Court

There have been various important changes to the practice of family law in 2024. On 29 January 2024, the Transparency Implementation Group Reporting Pilot (TIG) was extended to 16 more courts around the UK, including three in London (Central Family Court, East London and West London), following a year-long trial in Leeds, Cardiff and Carlisle.

Private law children cases were only subject to the reporting pilot in the three initial courts from January 2024 (prior to this, the media could only report on public law children cases) but were extended to the further 16 courts from 15 July 2024.

Accredited journalists and legal bloggers will be able to report on what they see and hear within private law children cases but will not be permitted to name the children or parents, along with other restrictions, to avoid identification of children.

The Pathfinder Pilot and Encouraging NCDR

The Pathfinder pilot, launched in March 2022 in Dorset and North Wales courts, was extended to Birmingham and Cardiff in April and May 2024. Billed by the President of the Family Division, Sir Andrew McFarlane, as a “problem-solving court”, Pathfinder prioritises children’s wellbeing by promoting a less adversarial approach to agreeing child arrangements and better supporting domestic abuse victims. The scheme involves early gatekeeping, with the Children and Family Court Advisory and Support Service (Cafcass) identifying whether a family might benefit from other forms of dispute resolution or are at risk of domestic abuse, and, crucially, speaking to the children to understand their wishes and feelings, all before a first hearing. Cafcass will then produce a Child Impact Report. Many cases within the pilot have been resolved at the first hearing or even without a hearing.

On 29 April 2024, in a further attempt to dissuade litigants from using the overburdened court system to settle their private law disputes, changes were made to the Family Procedure Rules 2010 to enhance the court’s powers to require litigants to consider “Non-Court Dispute Resolution” (NCDR). The definition of NCDR has been expanded to include not only mediation, but also arbitration, evaluation by a neutral third party and collaborative law. Those conducting mediation, information and assessment meetings (MIAMS) must now provide information about all forms of NCDR, whilst the exemptions available to parties have been tightened. The court also has the power to require parties to set out their views on NCDR in an open document and it can adjourn proceedings to allow parties time to undertake NCDR. Importantly, the change in the rules means that courts can take account, as a matter of conduct, a party’s position on NCDR when considering costs orders.

Domestic Abuse, Experts and the Family Court

How the family courts deal with domestic abuse, particularly fact-finding hearings, continues to be hit and miss. In the case of J (A Boy) and K (A Girl), In the Matter of (Re Children Act 1989 – Family Law Act 1996 Part IV) [2024] EWFC 77 (B), the mother successfully appealed the judge’s decision to vacate a fact-finding hearing. The court found that the way the judge came to the decision to dispense with a fact-finding hearing was procedurally irregular and unfair to the mother. The appeal was allowed on all grounds and the case remitted for fact-finding as soon as possible. A similar outcome occurred in the case of O (Appeal; Duty to Consider Fact-Find) [2024] EWHC 839.

The issue of experts in children proceedings remains a hot topic, particularly where there are allegations of “alienating behaviour” or “parental alienation”. In the case of GB (Part 25 application: Parental Alienation) [2023] EWFC 150, the mother appealed the decision to instruct an expert psychologist, where the father was alleging that the mother was displaying alienating behaviours. The circuit judge hearing the appeal was concerned about the lack of reasoning and explanation as to why the assessment was “necessary”. The appeal was allowed, and the case remitted to a lower court for a fresh hearing.

In the case of Re A and B (children: expert’s reports) [2024] EWHC 948 (Fam), a mother appealed a case management decision to appoint an expert psychologist to undertake a family assessment in a case where the mother was a victim of domestic abuse, and the father had alleged parental alienation. The mother’s appeal was successful and the order instructing the expert was set aside.

In an interesting Parental Responsibility case, the Court of Appeal, in T-D (Children: Specific Issue Order) [2024] EWCA Civ 793, allowed an appeal regarding a specific issue order which gave overarching parental responsibility to a father in respect of schooling, therapy, and interactions with social workers and medical professionals. Peter Jackson LJ found that the remedy chosen by the judge was not reasonably open to him as the order was unlikely to be effective and lacked clarity and that the court was obliged to deal with the schooling issue rather than delegate the decision to the father.

Surrogacy, Adoption and Informal Sperm Donation

The law continues to develop in the area of modern families. There have been two significant surrogacy and adoption cross-over cases in 2024. Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 is the second case involving a step-parent adoption application by the non-biological father following a surrogacy arrangement, but the first where the surrogate objected to the making of the adoption order. This case involved the same parties as in the 2023 seminal case of Re C (Surrogacy: Consent) [2023] EWCA Civ 16, where the parental order was set aside by the Court of Appeal as the surrogate’s consent had not been given unconditionally. The judge found that Z’s welfare needs did not require the dispensing of the surrogate’s consent, and the stepparent adoption order was not made.

In contrast, in Re N (Adoption – Surrogacy) [2024] EWFC 41, the adoption order was made despite the surrogate and her husband’s lack of consent. In this case, the child, N, who was aged 18, strongly supported the adoption application. The court dispensed with the respondent parents’ consent on welfare grounds. 

Informal sperm donation agreements continue to cause legal conundrums. In P v Q & Ors [2024] EWFC (B), Knowles J was faced with a declaration of parentage application from a gestational mother, P, who claimed that her former wife and second parent on the birth certificate of the child, X, was not the legal parent as she (P) had had sexual intercourse (otherwise termed natural insemination or NI) with the sperm donor within the conception window. The question of X’s legal parentage only became an issue following the parties’ separation. The non-biological mother, Q, was not aware of the natural insemination and argued that as she was married to P at the time of the artificial conception, her legal status by virtue of Section 42 of HFEA 2008 was clear.

The judge was not able to find on the balance of probabilities that X was conceived via AI (artificial insemination), and so the presumption of Q’s legal parentage was rebutted, and the sperm donor declared the legal father. Q appealed (P v Q and F (Child: Legal Parentage) [2024] EWCA Civ 878) but was unsuccessful. In the welfare hearing, however, all three parties were granted parental responsibility.