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      UK Surrogacy: proposals for overdue law reform

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      The Law Commission recently published their final recommendations for UK surrogacy law reform, following an extensive project that began in 2018.
      Their proposals seek to modernise UK surrogacy law, and improve support for children, surrogates, and intended parents, whilst ensuring that UK surrogacy remains an altruistic rather than a commercial endeavour. Stowe Partner and surrogacy lawyer, Liza Gatrell, explains more.
      UK Surrogacy: proposals for overdue law reform
      Following a public consultation in 2019, the Law Commission released its recommendations for a comprehensive overhaul of UK surrogacy laws last week. The recommendations include a draft bill that, if approved by Parliament, could become law.
      The use of surrogacy arrangements for family building has increased in recent years but UK laws have not kept pace, rendering them outdated and not fit for purpose. This causes an added layer of complexity and stress to what should be a happy time.
      What is surrogacy?
      Surrogacy is where a woman carries and gives birth to a child for the intended parents. The surrogacy can be traditional, whereby the surrogate also donates her egg, or gestational, where she has no genetic link to the child.
      What is wrong with current surrogacy law?
      Under the current UK surrogacy law, the surrogate will always be the child’s legal parent and if she is married her husband or wife will automatically be the second legal parent. This is the case even if the surrogate has no genetic links to the child. If the surrogate is unmarried then it is possible for one of the intended parents to be the second legal parent. The intended parents must then make an application to court within 6 months of the child’s birth for a parental order, which re-assigns the legal parentage to the intended parents.
      Why is change needed to UK surrogacy law?
      Existing surrogacy laws, which date back to the 1980s, frequently fall short of providing adequate protection for the surrogate or the intended parents. Surrogacy agreements are unenforceable and there is no scrutiny of surrogacy arrangements until after the baby has been born, by which point it is arguably too late. The inability to obtain a pre birth order in the UK leads many intended parents to travel overseas, meaning they are then faced with increased expense, immigrations laws that they must also navigate, and concerns about the exploitation of women and children.
      The UK surrogacy laws have always been altruistic in nature, rather than commercial, and this will continue, but under the proposed changes the intended parents would be recognised as the legal parents from birth (subject to the surrogate’s consent). This is far more in line with the shared intentions that the surrogate and the intended parents have right from the start.
      The new surrogacy pathway
      The reforms will apply to UK arrangements only. Intended parents that travel abroad for their surrogacy arrangement will still need to make an application for a parental order.
      The new pathway will allow the intended parents to be recognised as the legal parents from birth, subject to certain requirements and safeguards being met, these are:

      An agreement between the surrogate and the intended parents
      A preconception assessment of the welfare of the child to be born by the arrangement
      Independent legal advice for the intended parents and the surrogate
      Implications counselling to be undertaken by the intended parents and the surrogate
      Medical screening for the intended parents and the surrogate
      Enhanced criminal record checks
      Agreement of a Regulated Surrogacy Organisation to permit the arrangement onto the new pathway

      There is also suggested reform to the payments that can be made to surrogates to clarify what constitutes a “reasonable expense”, which will provide much needed clarity.
      Authorised payments will be:

      Costs related to the decision to enter an agreement

      Unauthorised payments will be:

      General living expenses

      The surrogacy reforms will see the creation of regulated bodies, called Regulated Surrogacy Organisations (RSOs), non-profit organisations governed by the Human Fertilisation and Embryology Authority (HFEA). They will oversee agreements under the new pathway and provide support to surrogates and intended parents.
      Reforms to the parental order process
      Parental orders will still be needed for international arrangements, but some reforms to the process have been recommended. One reform is to enable a parental order to be made without the consent of the surrogate where the welfare of the child required it.
      It is also recommended that the surrogate’s spouse should not be a legal parent and so their consent will not be required for parental order to be granted.
      A new surrogacy register
      A new register would be created to allow anyone born through surrogacy to access information about their origins. Children born via surrogacy in England and Wales will be able to access non identifying information at age 16 and identifying information from age 18. In Scotland both would be from age 16.

      These reforms do not go as far as some would have liked, but they do mean that UK surrogacy agreements will be better supported and regulated, which is welcome news. It is now for the Government to consider these recommendations. Watch this space.
      Useful links
      Why we need surrogacy law reform
      International surrogacy – what you need to know
      UK surrogacy law FAQs
      A focus on surrogate consent and parental orders
      Stowe talks: Surrogacy in the UK More

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      Mandatory mediation: what it could mean for divorcing couples

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      Last week the UK Gov announced plans to introduce mandatory mediation for separating or divorcing couples.
      This family justice system reform will make mediation mandatory in all appropriate family court cases. Under the proposals, divorcing or separating couples will be required to try to resolve child arrangements (custody) and financial arrangements through qualified mediation, with court action reserved as a last resort.
      It is hoped that by assisting families to avoid court, backlogs will be reduced, allowing the family courts to focus on cases that require their protection the most.
      Here, Stowe Senior Associate Filomena Sterkaj explains more.
      What are the UK Gov’s mediation reform proposals?
      The government’s new mediation reform plans aim to divert more family disputes away from our overburdened and backlogged family courts. Proposals call for mediation to be made mandatory in all suitable low-level family court cases, with the exception of those involving allegations or a history of domestic violence or concerns of child safeguarding.
      The proposals aim to achieve multiple objectives:

      Lowering demand within the family court system; freeing up resources to ensure that urgent cases are heard more quickly and reducing backlogs
      Protecting children from the negative consequences of seeing their parents resolve family law disputes in court, a process that is frequently fraught with conflict.

      Secretary of State for Justice Dominic Raab MP said “When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life.”
      If the proposal goes ahead, it is estimated that faster hearings and resolutions could benefit 36,000 vulnerable families each year.
      So how will mediation plans work?
      Under the proposed plans, separating couples will have to try to reach an agreement on their child and financial arrangements through a qualified mediator, reserving court action for complex issues or cases which have not been resolved via mediation.
      It has been suggested that Courts could impose costs orders to hold people accountable if they do not make a ‘reasonable attempt’ to mediate.
      In addition, the government’s Family Mediation Voucher Scheme will be extended until April 2025 backed by an additional £15 million in funding. The scheme provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation and has so far supported over 15,300 families.
      It has been reported that the voucher scheme has been beneficial for separating couples and their children. With further reports that an analysis of the first 7,200 users of the scheme shows 69% of participants have reached whole or partial agreements away from court.
      What is mediation?
      Mediation is a process in which couples work together to resolve their differences. Currently a voluntary alternative dispute resolution (ADR) option to assist families with overcoming disagreements, mediation typically minimises lengthy and acrimonious conflict, helping couples to maintain a constructive relationship – beneficial for both separated parents and their children.
      Mediation is conducted by a trained and accredited mediator who serves as an intermediary, rather than providing legal advice. Mediation can play a vital role in helping separating couples achieve positive outcomes, protecting children from disputes, as well as reducing the burden on the courts.
      Concerns about the mediation reform proposals
      However, the mediation reforms have raised some concerns.
      Firstly, the definition of ‘low-level cases’ and the process by which they will be assessed, are unclear. Furthermore, there are concerns that people will make false allegations against their partners in order to avoid mediation altogether. Equally, in cases where abuse or coercive control are unknown factors, victim-survivors may be coerced into participating, thereby empowering their abuser.
      The Law Society president Lubna Shuja said: ‘The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.’
      Women’s Aid has said clarity is “urgently needed” to understand how the Ministry of Justice will ensure all domestic abuse survivors will be kept safe and allegations will be properly investigated.
      The proposals are subject to a government consultation which will run for 12 weeks, closing on 15 June 2023.
      Useful links
      Stowe Support – Mediation More

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      Law raising age of marriage to 18 comes into force

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      Newcastle-based Stowe Partner, Nicky Hunter, explains the overdue changes to marriage law in England and Wales, including the new criminal offenses and the reasons why the law has changed after almost 75 years.
      Law raising age of marriage to 18 comes into force in England and Wales
      Today marks a historic day in the safeguarding of children and young people, as the new law raising the minimum age someone can legally marry to 18 has come into force today in England and Wales, having received royal assent last April.
      The Marriage and Civil Partnership (Minimum Age) Act 2022 has finally ended the archaic law in England and Wales that has allowed children aged 16 and 17 to be married, with the consent of their parents, even though they are legally considered to be children.
      Why has the marriage law changed? 
      The Marriage Act 1949, which was in place up until today, legitimised child marriage in England and Wales. The mechanism of parental consent which existed under this law, whilst originally intended to be a safeguard against child marriage has, in reality, proved in many cases to be a vehicle for parental abuse.
      Campaigners have long argued that the existing law has allowed children between the ages of 16-18 to be coerced into marriage without their consent and against their best interests, pointing to many cases where young people have been subjected to domestic abuse, some suffering lifelong harms, as well as losing opportunities for education, employments and personal growth and independence.
      By raising the minimum legal age of marriage to 18, the UK is finally stepping out of the environment which allows parents to force their children to marry.
      The full scope of the new marriage law
      The new law has made it an offence for a person to aid, abet or encourage any child under 18 to enter into any form of marriage. Furthermore, it will make it a criminal offence for a responsible person, i.e. a parent or guardian, to fail to protect a child from entering into any form of marriage. The law applies to religious and cultural marriages, as well as those registered with the local authority.
      These offences will now be punishable by up to seven years in prison.
      This is a powerful move that will work to safeguard young people and prevent parents or guardians from abusing their positions as responsible adults and forcing children into underage marriages.
      Child marriage, a global issue
      In 2016, UNICEF and the UN population fund launched a joint initiative to tackle the problem of child marriage globally. Whilst funding has been forthcoming from the UK, the law which allowed child marriage in our own country has not been addressed until recently.
      With the implementation of the new law, Parliament is finally living up to its international obligations to stop underage marriage and remove the inconsistencies in its approach to tackling it as a global issue.
      This is a truly positive step in the right direction, and we hope to see more action taken to protect the future of young people, particularly girls, in England and Wales. However, it is important to note that the minimum age of marriage remains 16 in Scotland and Northern Ireland and in Northern Ireland parental consent is required under the age of 18, but not in Scotland. More

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      Transparency Pilot in the Family Courts – What You Need to Know

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      Taking a family dispute to court is an inherently stressful experience. When you factor in the wide scope a court has in making decisions for you and your family, combined with the perceived secrecy of the family courts, it can be an uncertain time for all.
      With the lack of transparency and accountability both long-term concerns of the existing system, there are major changes planned for UK family court proceedings.
      This guide will take you through the changes being piloted in what is known as the Transparency Pilot.
      The family courts
      Unlike the criminal courts, which are open for the public to access and frequently reported on, going through family court is a private and confidential process. Because of this, many members of the public know very little about family law proceedings. Often, their only exposure to the family court system is television programmes like Judge Rinder, and US-style televised litigation (think Amber Heard vs Jonny Depp or the OJ Simpson trial).
      Until now, journalists, bloggers and reporters have not been allowed in family proceedings (with some rare exceptions and the judge’s permission) and the information shared within family court cases is private. You could even go to prison, or be fined, for sharing information about proceedings, even your own case.
      For years, it’s been debated whether there should be more transparency in the family courts. Contributing to the slow pace of change is the tension between two major factors: the need to boost public trust in the family court and the need to maintain confidentiality and privacy for those who use the family court to resolve family disputes.
      What is the Transparency Pilot?
      The Transparency Pilot is UK government-initiated scheme launched in Leeds, Cardiff and Carlisle on 30th January 2023. It aims to allow ‘pilot reporters’, including accredited journalists and legal bloggers, to report on cases heard in the family court, subject to strict rules of anonymity.
      Reporters’ access is being tested to ensure that it can be done safely and with minimal disruption to those involved in the cases and the courts.
      Under the new rules, a judge will set out what can and cannot be reported by making a “transparency order” which allows for the following:

      Journalists, reporters and bloggers can come into family court hearings, watch the hearing and then report what happens;
      Journalists, reporters and bloggers can look at certain documents from the case;
      You can talk to journalists, reporters and bloggers about your own case;

      The cases will still be anonymised. No one is allowed to name or take photos of the mums, dads, husbands and wives or their children. Although it may be possible for you to recognise your case based on specific details (particularly in the local press) crucially, the aim is to make sure that others cannot identify your case by any of the facts reported.
      Under the pilot, who can attend and what can they see?
      The only people allowed access to report on your case are journalists with a UK Press Card, or a lawyer who is not involved in the case but is authorised to attend hearings just like a journalist (also called a legal blogger).
      This prevents any member of the public or person with an interest in your case coming to your hearings under the guise of being a journalist.
      The journalists can only see the basic case documents, which explain what the case is about and what the parties’ positions are – if they want to see anything else, such as a report from a social worker or a report into your pension then they must ask the judge for specific permission.
      What if I don’t want my case to be reported?
      Firstly, do not panic. For the time being this trial is taking place in just three courts – and not every case in those courts will be reported on – the judge will decide in each case whether it is a suitable case for journalist access to be allowed.
      If the judge decides that it is, but you would like it to remain private, you can request that the transparency order be changed.
      The judge will balance the things that you are worried about against the overall aim of the pilot – to make the family court a more open and understood system – and then decide whether the reporting can continue.
      And remember, no matter what the judge orders, you don’t have to speak to a reporter unless you want to.
      Why is the Transparency Pilot happening?
      There are multiple reasons, but fundamentally the overall aim is to improve the courts and make law fairer for everyone.
      In the world of law, the usual cases that get reported are typically ones that reach the higher courts – complex divorce cases with millions (or billions) in assets, international children cases and ‘high profile’ celebrities.
      This means that the everyday judgements are not open to public scrutiny, therefore patterns of decisions and perceived biases cannot be seen and the risk of a miscarriage of justice increases.
      Over time the hope is this will change. With enough reporting of everyday decisions the expectations of the court will be better understood and both the judges, and the courts will be held accountable for the procedural issues.
      What do the lawyers think of the transparency pilot?
      Every solicitor is different, but the overarching feeling is that this is a long overdue change. We spoke Leeds-based Stowe family lawyer, Jake Mitchell, one of our solicitors working within the pilot, to ask his thoughts:
      Q. What can a parent or spouse going through the family court at Leeds expect to change?
      JM. Very little. Considering the number of cases that go through the courts each day, chances are that an individual’s case won’t be reported on in any event. However, if they do, then they should expect to receive the same respect and confidentiality they would have received before the pilot. The reporters and legal bloggers that are allowed into hearings will not have any impact on your case, and they should be well versed in the law (perhaps lawyers themselves) so one would hope their subsequent reporting should be accurate.
      Q. What can a parent or spouse do if they don’t want to be reported on?
      JM. Tell their solicitor and ask for the judge to be made aware. If you think that your ability to go through proceedings will be impaired by the presence of a reporter then the judge may well decide that your case can be excused from the pilot.
      Q. What do you expect to see change in the long term?
      JM. With common issues such as when a mother is moving home and wants to change her son’s school, or when a father wants to take his daughter to on holiday but the mother says no, there is little to no precedent to go on.
      If the pilot goes well and reports on these everyday disputes become better understood, it will help mums and dads, husbands and wives in knowing what to expect.
      It may also encourage compromise and co-parenting outside of the court – if you already have a good idea what is going to happen, then you may be minded to think about settling early without the need to attend court. More

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      A focus on surrogate consent and parental orders

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      Stowe family lawyer Tamara Adams explores potential complications in surrogacy cases and asks do surrogates need to give consent for a parental order to be made in the UK, and how should that consent be given?
      What is a Parental Order?
      A Parental Order is an order obtained by the court post birth which makes the intended parents of the child the legal parents and permanently extinguishes the legal status and responsibilities of the surrogate and, if applicable, their spouse.
      After a Parental Order has been made, a UK Birth Certificate will be issued recording the intended parents as the legal parents. This replaces the original birth certificate.
      To obtain a parental order, the intended parents must satisfy the family court that they meet all the criteria set out in Section 54 (for couples) and Section 54A (for single parents) of the Human Fertilisation and Embryology Act 2008. These are:

      There must be a genetic link to the child with at least one of the intended parents
      The application can be made by an individual, or a couple who are married, in a civil partnership or enduring relationship
      An application must be made within 6 months of birth
      The surrogate and their spouse must freely consent to the order being made. This consent cannot be given within 6 weeks of the child’s birth
      The Applicant(s) must be domiciled in the UK
      The child must be living with the applicant(s) at the time of the application; and
      The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred or authorised by the court) has been given or received by either of the applicants for, or in consideration of, the surrogacy arrangement

      A question of surrogate consent
      Many of the Parental Order requirements have needed judicial clarification. Most recently in Re C (Surrogacy: Consent) [2023] EWCA Civ 16 whereby the Court of Appeal provided essential guidance on the requirement for consent from the surrogate.
      Within this case, the surrogate provided consent to a Parental Order being made on the basis the Court also made a Child Arrangement Order to allow for the surrogate to spend time with the child.
      In August 2021, a Parental Order was made alongside a child arrangement order for regular contact between the surrogate and the child. The surrogate then sought to appeal on the basis she had not provided free and unconditional consent. As a result, she sought for the Parental Order to be set aside.
      The intended parents argued that the necessary consent was given, but if that is not so, they contended that irrespective, the parental order should be left in place and section 54(6) of the Human Fertilisation and Embryology Act 2008 can be read in a way as to confer a dispensing power upon the court.
      The case background

      A surrogacy agreement was signed prior to insemination
      The surrogate was pregnant and then, the relationship between the parties deteriorated
      The child was born, and the surrogate received postnatal counselling
      The intended parents then applied for a parental order but the surrogate returned the form of acknowledgement stating she did not consent to the making of the order and opposed the application
      The surrogate then provided consent orally in court on the basis that a child arrangements order was made providing for her to have monthly contact and a prohibited steps order to prevent the intended parents from moving without her written agreement
      The court in the first instance then proceeded to make a parental order and a child arrangement order. The next day, the surrogate then made contact with the intended parent’s legal team to express she felt under pressure to consent to the order
      The contact order begun, and contact took place over time. However, one scheduled contact did not take place. The intended parents then applied to discharge the terms of the contact order and they did not permit contact thereafter
      The surrogate then sought permission to appeal the parental order
      The appeal was on the basis of two grounds:

      The court was wrong to make a parental order when it was clear the surrogate’s consent was being given conditional on the making of a child arrangement order and therefore not “unconditionally”; and
      The Court was wrong to make a parental order when the consent provided by the surrogate was not provided “freely”.

      Court of Appeal decision
      The Court of Appeal considered the wording of Section 54(6) of the Human Fertilisation and Embryology Act 2008 and expressed the right of the surrogate not to provide consent is a pillar of the legislation.
      The Court confirmed that if there is any doubt about consent, it will be a matter for the Court to judge, considering all circumstances.
      The court confirmed that consent should be in writing. Even then, consent can be withdrawn at any stage before the order is made. This formality is not mandatory but, in its absence, should put the court on its guard to ensure the proffered consent is valid.
      In this case, the consent was given orally in a face-to-face court hearing and as such, any stated consent was devalued due to the possibility the court process might in itself be exerting pressure on the surrogate.
      The court therefore determined that the European Convention on Human Rights do not require a Parental Order which was made without valid consent from the surrogate.
      The court determined that the rights of the intended parents and child are not violated by the setting aside of the order for lack of consent on the part of the surrogate. As a result, the Court of Appeal dismissed the Respondents application for a Parental Order. The appeal was therefore allowed. The Court confirmed the child should be brought up by the intended parents and have contact with the surrogate as was intended by all.
      It therefore remained agreed for this to take place but the Court of Appeal did not have the power to make such an order as was beyond the scope of the appeal.
      All in all, this case is pivotal in reiterating the importance of obtaining the surrogates free and unconditional consent to a parental order and reiterated the importance of this consent to be provided in writing.
      Useful links:
      UK surrogacy law FAQs
      International surrogacy – what you need to know
      Stowe talks: Surrogacy in the UK with My Surrogacy Journey
      Guide: Surrogacy and Parental Orders
      Why we need surrogacy law reform More

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      2022 in review – reflections on the past year in family law

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      Managing Partner Julian Hawkhead finishes the year with a look back at the significant developments for UK family law over the past twelve months, and reflects on another successful year for Stowe. 
      As another year draws to a close, I have paused in the frantic closing off of the calendar year to reflect on events in the life of Stowe and the wider family law world over the past twelve months.
      Whilst 2022 brought a renewed sense of hope, no one could have predicted the new challenges that we would face. It’s hard to believe that we started the year working remotely still and talking about the Omicron variant and booster vaccinations.
      During the course of the year we have tentatively returned to some “old” ways of life, returning to offices in greater numbers and greater frequency. Collectively it has felt like the ingredient we missed so much in lockdown; the ability to share and propagate ideas in person with colleagues. It has been great to come into the office and listen to lawyers bouncing ideas off each other, essential not only for problem solving but also sharing experiences and knowledge.
      A year of change at Stowe
      2022 has been a seismic year for Stowe Family Law. We opened 17 new office locations, recruited 68 new colleagues, and completed our first acquisition of another family law firm. As a result, the firm is one third bigger in scale than at this point last year. With this growth our lawyers have been able to help even more families handle the emotional and legal consequences of family breakdown as they are faced with the combined fallout of the pandemic and the cost-of-living crisis.
      The introduction of no-fault divorce
      The past year has also been a landmark one for family law with the introduction of no-fault divorce back in April. This was the culmination of many years of campaigning, and rightly seen as a triumph for those who have advocated for a blame free divorce process and the modernisation of antiquated divorce laws.
      Here at Stowe, we saw our first no-fault divorce client reach the end of their divorce process with a final divorce order granted in November. There’s no doubt we will see many more clients reach the end of the new process in the coming weeks.
      As a lawyer it has been a relief not to have to have to discuss with clients the causes of their marriage breakdown at great length knowing that one of the primary purposes was to work out how to draft a divorce petition with sufficient points of blame. The ability to focus on client issues that needed to be resolved, whether they relate to their children or their finances, without the additional “noise” of divorce blaming is a benefit for both client and lawyer.
      The call for cohabitation reform
      Unfortunately, similar success has not been achieved by campaigners for the introduction of laws to protect cohabiting couples. Cohabitation is the fastest growing family type in England and Wales. In 2021 there were around 3.6 million cohabiting couples in the UK compared with 1.5 million in 1996. Yet the myth of common law marriage persists and unmarried couples who split up face navigating a minefield of complex legislation to resolve financial issues.
      Family lawyers have been at the forefront of calling for change in this area for some time. In August the House of Commons’ Women and Equalities Commission produced a report into the rights of cohabiting partners. This called for the Government to reform family law to better protect cohabiting couples and their children from financial hardship in the event of separation and to provide greater financial security for cohabiting couples upon the death of one partner.
      The Government’s response was to reject the Commission’s recommendation, indicating that it considers existing work underway on the law of marriage and divorce must conclude before considering any change to the law of cohabitants on relationship breakdown. In particular, the Government has said it must focus on its commitment to conduct a review of the law of financial provision on divorce: It cannot fully reconsider the law relating to relationship breakdown of cohabitants before the review on financial provision for divorce has reached its conclusions and made its recommendations.
      In addition, the Government is considering the case for comprehensive reform to marriage law and considers that the law relating to the relationship breakdown of cohabiting couples could also not be considered outside the context of any wider reform to the law of marriage.
      So, it appears that there is no likelihood of reform to the law of cohabitation anytime soon, and we will continue to advise unmarried couples in the context of an unsatisfactory patchwork of legislation which very often leads to inequitable outcomes and financial hardship.
      For me this failure to establish any measures to protect financially vulnerable people coming out of cohabiting relationships is sadly a short-sighted decision of the government. To prioritise reform to financial remedies cases for divorcing couples in circumstances where there is already a framework, albeit some might consider an imperfect framework, above a need to provide financial protection to cohabiting couples where in a large number of cases there is currently none suggests to me that the government is making moral judgements on couples depending on whether they choose to “formalise” their relationship or not.
      In any event it leaves a large number of vulnerable people even more reliant on state funded financial support. We can only hope that parliament is able to solve this problem faster than it was able to bring about reform to no fault divorce.
      Delayed surrogacy bill
      Surrogacy is another area in which we had hoped to see significant progress towards reform this year. The law in this area has remained largely the same for 30 years and has not kept pace with scientific and societal developments. The Law Commission are in the process of preparing a draft bill which was due to be published in the autumn, but the Bill will now be delayed until spring 2023. Proposals for reform which are likely to be contained within the draft Bill include:

      The creation of a new pathway to parenthood which will mean that the intended parents will be the legal parents from birth of a child born of the surrogacy arrangement, subject to the surrogate’s right to object for a defined period from birth. There would be no need for the intended parents to apply for a parental order.
      There would safeguards or eligibility requirements along the pathway which would only apply to domestic surrogacy arrangements.
      The removal of the current requirement that at least one of the intended parents must have a genetic link with the child.
      The creation of a register to allow for those born of surrogacy arrangements to access information about their origins.

      The proposals are welcomed by practitioners but there is concern at the delay in the publication of the draft bill. Nevertheless, the Law Commission has shown commitment to ensuring that our surrogacy laws are effective and up-to-date, and optimism remains that we will see the introduction of wholesale reform of the surrogacy process in due course.
      Domestic Abuse Act
      Whilst the Domestic Abuse Act received Royal Assent in April 2021, many of its key provisions only came into effect within the last 12 months, and some are still awaited. The Act was hailed by the government as a landmark bill which would transform the response to domestic abuse, helping to prevent offending, protect victims and ensure that they have the support they need. However, many of the organisations who campaigned for the new law have identified significant gaps and omissions within the Act, and it is seen by some as a missed opportunity. For example, the law fails to deliver equal protection and support for migrant women and campaigners continue to seek amendments to abolish the no recourse to public funds omission and ensure that migrant women can apply for indefinite leave to remain independently from their perpetrator.
      There is also concern that the Act fails to address aspect of the Universal Credit system that facilitates and exacerbates abuse and that whilst there is now a statutory duty on local authorities to provide domestic abuse refuges, there is no similar provision for community-based services which has lead to concern that safe accommodation will be funded at the expense of services within the community, which are vitally important for many victims.
      In addition, perhaps inevitably, it is clear that without adequate resources from government to fund the measures implemented, the effectiveness of the Act will be limited.  Thus, while the Act has potential to improve the support provided to some victims of domestic abuse and have meaningful impact upon prevention, it is not a panacea.
      As we reach the end of 2022, the weight of cost of living increases, rising interest rates and a general economic maelstrom will, I am sure, be heavy on many readers minds and I hope you are able to stay safe and healthy as we hope for better times to come in 2023. More

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      US Supreme Court overturning of Roe v Wade – what does this mean?

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      A week has passed since the US Supreme Court overturned Roe v Wade to remove the constitutional right to legal abortion. Here Stowe Family Lawyer Megan Brookfield reflects on the unparalleled decision, and what it means. 
      Last week, the US Supreme Court overturned the landmark case of Roe v Wade 1973, which provided women with a constitutional right to an abortion. The opinion, drafted by Justice Samuel Alito stated that the judgement in the case was ‘egregiously wrong”.
      Roe v Wade
      The Court in the landmark 1973 case ultimately determined that it was a woman’s right to privacy to seek an abortion during the first trimester of pregnancy. After the first trimester, the ruling allowed states to regulate abortions, except when necessary to protect the life or health of the mother. Thereafter, the later case of Planned Parenthood v Casey 1992 reaffirmed the landmark case and a woman’s right to abortion, however it broadened the power given to state to regulate and restrict abortions. Several states already had restrictive legislation in place following this case.
      The new ruling on Friday 24th June came from the case of Dobbs v Jackson Women’s Health Organisation. The Lord Justices who ruled on this case provided that abortion is no longer a constitutional right and instead, each individual state shall determine whether they will allow abortion to be legalised. It is expected that over half of the states in the USA will likely restrict abortion access.
      It is understood that a number of these states have already passed trigger laws which automatically ban abortion and such laws came into effect the moment Roe v Wade was overturned. Whilst some may carry an exception to the prohibition where there is a risk to the life of the mother, some states who impose the ban will not allow exemptions for cases involving rape or incest.
      It is extremely important to remember that abortion is not purely for women who do not want to be pregnant. Abortion procedures also form a major part of healthcare for women who wanted to carry their pregnancy to full-term, but now face life threatening issues such as ectopic pregnancies, miscarriage, stillbirth, or medical conditions that are not compatible with life. Irrespective of the circumstances, it’s indisputable that without safe and controlled management of abortion, women risk significant and long-term medical complications, trauma, and potential death.
      What the decision means
      Whilst pro-life campaigners celebrate the decision, the overturning of this landmark case is indeed going to have a number of widespread consequences. It is important to remember that whilst the US may prohibit abortions, it does not mean they are not going to continue to happen.
      Instead, to seek a legal abortion some women will travel thousands of miles to states which do continue to allow it. It’s also likely there will be a rise in home abortions and a reduction in the number of medical professionals who are willing to perform this procedure which now carries the risk of prosecution. In particular, for women who may experience financial difficulty and are unable to travel to a state which allows for abortion to take place, we are likely to see a rise in DIY abortions which carries significant risks.
      Understandably, thousands of people have gathered to protest outside the US Supreme Court, outraged by the decision. The true extent of the impact the removal of the right to abortion is likely to have on America and the rest of the world is yet unknown. There are however a number of assumptions which can be made about the outcomes for pregnant women and their families:

      The health of women will undoubtedly suffer
      Lack of access to abortion will compound and cause financial difficulty
      Mental health issues are almost certainly going to rise
      There will also be an increase in children being placed into the care system.

      What’s next?
      Whilst the recent case solely deals with the issue of abortion, Justice Clarence Thomas states within his opinion that a number of other landmark cases should be revisited. These cases are Griswold v Connecticut 1965, a case in which the Court ruled that married couples should be protected to buy and use contraceptives without government restrictions, Lawrence v Texas 2003, which legalised same sex relationships and sexual activity in every state across USA, and Obergefell v Hodges 2015, which legalised same sex marriage.
      This is indeed a very concerning time for America and the rest of the world. For women in America, a law which was in place protecting their right to abortion for half a century has now been overturned, removing a significant layer of autonomy. This highly sensitive and multifaceted issue, is now the topic of an intensely controversial social and political debate. A reversal of legislation to this extent is almost unprecedented and as such has the potential to affect the rights of more women globally. More

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      in Family Law

      No-fault divorce has arrived

      by

      As we welcome the arrival of no-fault divorce in England and Wales, Stowe Senior Partner Julian Hawkhead reflects on what this family law reform means for divorcing couples and how it impacts the role of family lawyers.
      “It’s the end of the world as we know it and I feel fine” sang the US band R.E.M back in the late ‘80s, capturing a sentiment felt by many family lawyers this week as no-fault divorce is introduced.
      The advent of no-fault divorce is the biggest change to impact marital or civil partnership breakdown in decades. The Divorce Dissolution and Separation Act 2020, after years of campaigning by various stakeholders in and around the world of family law, brings about the removal of blame or the requirement to live separately for at least two years as reasons for divorce.
      The new changes take effect from 6th April 2022 and it is hoped will bring about a paradigm shift in the way separating couples approach the process of divorce.
      Does taking the blame out of divorce mean the end of family lawyers?
      Not at all. For many years family lawyers have recognised that the reasons given for a couple separating have had little, if any, material impact on the future plans and arrangements that need to be made following on from their divorce. That one spouse or civil partner behaved in such a way that the other party could no longer be reasonably expected to live with them would not itself be a factor in separating financial resources or making arrangements for the children. A barrister I worked with for many years would often tell me that the family court is not a court of morals.
      Turning the focus to the future
      As a family lawyer for over 20 years, I have seen many clients who have focused so much on their past that it created a distraction and shifted focus away from resolving the important issues that needed to be addressed. When anchored to the past, separating couples can often find themselves unable to move forwards, either emotionally or practically, and yet the court’s have expressed a lack of interest either through irrelevancy or simply a lack of time to do so.
      Mr Justice Coleridge in a judgement published back in 2002, sought to discourage parties from undertaking a general “rummage through the attic of their marriage to discover relics from the past” in order to assert a greater level of contribution to the marriage than the other party. The same could be said for any individual who has had to harvest a list of reasons why they believed the marriage broke down as if to satisfy a judge’s morbid curiosity when reviewing the divorce petition. Save that the judge had no such curiosity, but was instead simply performing an out of date statutory duty to check that sufficient boxes had been ticked to enable a divorce to proceed.
      However, from 6th April the requirement to rely on behaviour or a period of separation to justify divorce ends and is replaced with a single assertion that the marriage has broken down irretrievably. It is not an assertion that can be contested by the other person and the reasons for disputing a divorce are limited to questions relating to the validity of the marriage or jurisdiction.
      A simpler divorce process
      The divorce process has also been simplified, removing rather archaic language such as “decree nisi” and replacing it with a simpler more functional description of “conditional order”.
      It needs to be said that this simplification of the legal process is not making it easier to get a divorce. There is and never has been such a thing as a “quickie divorce”, a phrase often used by the media and much maligned by people working in family law. The new process will take at least 6 months to conclude with a waiting period of 20 weeks from the date of issuing the divorce application before the applicant, or with the new law, both parties as joint applicants, can apply for the conditional order.
      This 20 week period is designed to give the couple time to pause and reflect on their marriage and to also focus on addressing the practical arrangements that need to be made such as agreeing arrangements for the children and making progress towards a financial settlement. Parties will be actively encouraged to reach agreement wherever possible, using mediation and other forms of out of court dispute options where possible.
      The role of family lawyers
      Interestingly, when Stowe Family Law conducted a survey a couple of months ago it showed that the majority of people when asked about no-fault divorce were unaware of the imminent changes. A significant number still believed that bad behaviour during the marriage was and should be a factor that would influence the outcome of other issues in the divorce. A divorce process which removes any element of blame or causation to the act of ending your marriage may be difficult for some people, but it is a responsibility that rests on the shoulders of family lawyers and all those who attend to the needs of people going through relationship breakdowns to keep their attention and focus fixed firmly on looking forwards rather than looking backwards.
      Whilst no-fault divorce will not remove the pain that people feel when their marriages or civil partnerships end, it will hopefully help them get through the legal process of separation with less emotional impact and help prepare them for the next chapter of their lives.
      Get in touch
      For more information on no-fault divorce please do get in touch with our Client Care Team using the details below or make an online enquiry More