22 December 2017
November 2017 - Private Law
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The Husband (‘H’) was 72 and Iranian. The Wife (‘W’) was 49 and Irish. The parties married in 1992 and had three children.
In 2009 H found out about W’s affair. In August 2009, W was informed of this through her brother but H told the brother that he wanted the relationship to continue. However, at this time H was communicating with his lawyers asking for them to draw up a settlement agreement which gave H full control over the parties’ finances and children. He also asked for a recommendation for a lawyer for W.
On 25 August 2009, H’s lawyers said they had filed the case. On 27 August 2009, in highly emotional circumstances, W signed a power of attorney in Arabic, a language she did not know, and the settlement agreement, which was in English. W was not given copies of these documents. The court found that W was not given an opportunity to consider the terms of the settlement agreement because if she had, she would have been very reluctant to sign it as it contained very draconian terms.
In relation to the financial clauses, W signed despite not receiving any financial disclosure.
The power of attorney was dealt with by H’s solicitors. W did not have a choice of attorney and she never met the man selected to act for her in the Dubai proceedings. On 24 September 2009, the Dubai court agreed that there had been a divorce within the proceedings and that it was a revocable divorce.
Cohen J held that this divorce should not be recognised on either of the grounds of section 51(3) of the Family Law Act 1986, in that W was not given notice of the proceedings and the ability to participate:
Notice of proceedings – the fact that the settlement agreement mentioned a divorce was not proper notice as it gave no notice of filing a petition or commencement of proceedings and the court found that she was not given an opportunity to fully consider the terms of that agreement anyway.
Ability to participate – W was not told of the proceedings and did not meet with the attorney who acted on her behalf.
H argued that the divorce could still be recognised notwithstanding these conclusions.
H referred to Duhur-Johnson citing that ‘the provisions need not be exercised if the interests of the respondent are met by other means’. Cohen J disagreed with this and concluded that the fact that W could make a Part III application did not mean that he should recognise the divorce. W may not get the same award under Part III as she would under the MCA 1973 and she would still have to fight against H saying that weight should be attached to the settlement agreement. Cohen J also thought that the quote from the case was taken out of context and even if the award would be the same it should not release the court from its duty to consider the statutory criteria and not recognise the divorce.
Cohen J also found that the divorce was revoked under Islamic law because the parties had recommenced their relationship and shared a bed within 90 days.
At a judgment on 11 September 2017, Cobb J made a range of private law orders in respect of a child (‘T’), aged 8.
At the conclusion of this hearing the Applicant (‘A’), a psychological parent to T, made an oral application that the Respondents, T’s father and his partner, should pay or substantially contribute to A’s cost of litigation. Both respondents were not present nor represented at the hearing.
A contended that she was put to considerable expense in issuing a further application so soon after the conclusion of the previous litigation because the Respondents had failed to comply with the order Cobb J made in April 2016. A also contended that the Respondents had been unable or unwilling to acknowledge their damaging behaviours and/or face up to the consequences of their breaches of earlier orders. For these reasons they should be penalised in costs.
The Respondents stated that they had limited means and costs against them would be an undue and onerous burden and would make contact with T more challenging to afford. The second respondent, T’s father’s partner, said that she not be liable for costs because she is not directly involved in the matter despite being named as a Respondent. The Respondents submitted their own claim for costs in excess of £16,000.
Cobb J set out the law in the matter. In summary, the law is that costs shall be in the discretion of the court and it may make such an order as to costs as it thinks just. He also acknowledged that costs do not follow in the event in family proceedings and a costs order in Children Act 1989 cases can only be justified where litigation or other conduct has been found to be ‘unreasonable or reprehensible’.
Cobb J highlighted the relevant conduct at paragraph 10. The main points being:
The Respondents ignored the orders designed to meet T’s needs;
The father cancelled more than half of his contacts with T;
The father lied to A about his plans for holiday contact and encouraged T to lie about where she had been; and
The father said he had not really read the court order;
Cobb J found the father’s conduct to be unreasonable and reprehensible and that the father was aware he was breaching the order.
In relation to the father’s ability to pay, Cobb J weighed the father’s asserted impecuniosity against the fact that both the Respondents are in work and the father makes no financial contribution to T’s upbringing.
Cobb J took account of the fact that the father suffered from serious mental ill-health, he was unrepresented, he apologised for the breaches and the impact a costs order may have on the father’s future compliance.
Having weighted the matters, Cobb J concluded that the father, but not the partner, should contribute £15,000 to A’s total costs of £35,000.
This order for costs was not to be enforced without the leave of the court.
A and B issued legal proceedings against C and D when notified of the birth of H following the reneging of the surrogacy agreement by C and D and arrangements for contact were made which increased to a shared care arrangement pending the hearing.
C, despite no genetic connection to H, as gestational mother is the legal mother – S33(1) HFRA 2008 and D as C’s husband is the legal father – s35(1). That could only change by the making of a parental order under s54 or an adoption order.
A and B gained parental responsibility by virtue of the interim child arrangements order meaning that H had two legal parents and four adults with parental responsibility.
The original intention was that C and D would co-operate in A and B obtaining a parental order thereby transferring legal parenthood.
However, surrogacy arrangements are unenforceable – s1A Surrogacy Agreements Act 1985 and parental orders can only be made if the legal parents unconditionally agree – s54(6) HFEA 2008.
The central task for the Judge was to identify H’s main home and thus directed herself with reference to Re N (A Child)  EWCA Civ 1053 and Re G (Children)  UKHL 43.
The Judge was critical of C and D’s behaviour and described them as having embarked on a deliberate course of conduct and having continued to put obstacles in the way of A and B in seeking to establish a relationship with H.
The Judge concluded it was best for H to live with A and B because (1) H’s identity needs as a child of gay intended parents would be best met by living with a genetic parent, (2) A and B could meet H’s day to day needs in an attuned way, (3) A and B were best able to promote the relationship with C and D despite the difficulties and (4) C and D were unlikely to change their views about A and B.
The Judge concluded by approving a change of H’s name to reflect each of the adult surnames.
On behalf of C and D it was argued that;
By limiting contact and fettering P.R the Judge effectively made a parental order
The Judge should have striven to provide two homes and four parents and instead undertook no detailed analysis of the purpose of contact, neglected Article 8 rights and failed to explain why contact that marginalised C and D was necessary or proportionate
Criticism of C and D was unwarranted
With reference to the parental involvement presumption the judge should have treated the case like any other case of parental breakdown
The Court decided that: it did not agree the order was the equivalent of a parental order as such order would leave C and D without any rights.
Further it would not be in H’s best interests to have more than one secure home base which would inevitably lead to reduced contact.
The law is the same as in cases of separated parents but each case is different with different considerations and the court needs to analyse and carefully weigh them.