A former president of the High Court family division has welcomed recent government initiatives on cohabitation and children in care. But in a wide-ranging lecture on family law called “There must be a better way”, Sir Andrew McFarlane complained last night that the current state of the law meant that our courts were being required to accept foreign commercial surrogacy arrangements even though these were unlawful in England and Wales.
The annual Gray’s Inn reading is usually given at the invitation of the inn’s treasurer — its elected head. This year, the treasurer is McFarlane himself. Having recently retired as the most senior family judge of England and Wales, he now felt able to call for government action in areas he regarded as ripe for reform. In some areas, though, government ministers had got in ahead of him while he was writing his lecture.
Codify and clarify, not change
On 5 June, the justice secretary David Lammy published a consultation paper on reforming financial remedies on divorce and strengthening protection for former cohabitants.
As McFarlane explained, the main aim of the proposed reforms is to provide a clearer framework for divorcing couples — as well as those whose civil partnerships are dissolved — so it it will be easier for them to resolve financial issues without going to court.
The approach taken by the courts has changed a great deal since the most recent statutory reforms over 50 years ago and the government’s aim is to codify and clarify current practice rather than to change it.
Fairness will be the overarching objective, with matrimonial property shared equally unless adjustments are needed to meet one party’s needs. The welfare of any child would be considered first and legislation would seek to protect the financially vulnerable, including victims or survivors of domestic abuse.
“The aim of achieving greater clarity and predictability for divorcing couples is obviously a sound one,” McFarlane commented, “but the task of codifying the current approach without introducing fresh ambiguity, rather than removing it, will be a difficult one for the parliamentary drafting team.”
Pre-nuptial agreements
As McFarlane recalled, Baroness Deech and Baroness Shackleton have been among lawyers campaigning for years to make pre-nuptial agreements legally binding. The government agrees — but it says there must be clear statutory safeguards to prevent the vulnerable from being coerced into nuptial agreements and to ensure parties understand the legal consequences of signing. It sets out what it has in mind.
McFarlane, who is supportive of the Deech-Shackleton campaign and the Law Commission’s recommendations, said “the case for providing a default position whereby a validly created pre- or post-nuptial agreement is binding, subject to exceptions, will give greater clarity and may well encourage more couples to focus on their financial arrangements at a more tranquil stage of their relationship than is often the case at present.”
Cohabitation
“In contrast to the sophisticated, flexible and wide powers of a court at the end of a marriage or civil partnership,” he continued, “cohabitants are forced to rely upon a patchwork of legal rules drawn from property, trust and contact law to pursue any claim for financial relief.”
When children were involved, he added, there was a central unanswerable question: why should the financial arrangements for children and their main carers differ so radically depending on whether or not their parents were married?
As McFarlane observed:
The government’s proposals for introducing some limited rights for former cohabitants to apply for an adjustment of their respective property rights following separation have been carefully couched so as to provide something more than the current lack of remedy but significantly less than the rights that attach to those who have been married or in a civil partnership.
The former judge acknowledged that enhancing the rights of cohabiting couples risked “igniting opposition from those who seek to uphold the sanctity and status of marriage”. But it was not acceptable for the level of financial support for children to turn on whether or not their parents had been married.
Enduring relationships
On 4 June, the Department for Education launched a policy paper on enduring relationships for children in care. Josh MacAlister, the minister for children and families, said that “the purpose of the children’s social care system must be to build, protect and sustain children’s enduring relationships, so they can feel safe, supported and able to thrive.”
McFarlane observed that the government’s paper made no reference to adoption. But, despite major changes in society, adoption law had changed little in the past 50 years.
Children who came forward for adoption were no longer likely to be babies given up at birth by unmarried mothers; they were now older and more likely to have been taken from their birth families to protect them from abuse. They too might benefit from an enduring link with their birth families, he thought, provided it was safe to maintain this.
Surrogacy
“The law relating to surrogacy in England and Wales has not been the subject of any substantive amendment for over 30 years,” McFarlane said. “During that time, the public attitude to surrogacy has moved from regarding it as very much on the fringes, being largely confined to informal arrangements, to a position where it is now seen as part of the range of options available to those seeking assistance to become parents.”
Because would-be parents are not allowed to pay more than reasonable expenses, they are turning increasingly to commercial agencies abroad. But things could go very wrong. He had dealt one such case that generated a high level of concern last year and which I reported in full at the time.
These cases “starkly demonstrate the degree to which our courts are being obliged to accept commercial foreign surrogacy arrangements despite such arrangements being unlawful domestically”, McFarlane said. And Law Commission recommendations in 2023 did not address the problem of foreign surrogacy:
There is, I suggest, an obvious disconnect between a law which prohibits domestic commercial surrogacy — prohibits any payments other than for expenses — yet accepts that if a child has been born through a foreign commercial surrogacy arrangement, where the baby has plainly been bought for a commercial price, the English court will make a parental order.
If parliament reformed domestic law, McFarlane very much hoped it would “call out the commercial elephant in the room and address the issue in clear terms”.
In this area, at least, there seems very little risk of a government policy announcement before the former family judge delivers his next call for action.