Breastfeeding for Co-Mothers

August 2, 2016

I have over the years had enquiries from several lesbian couples who were planning to attempt to conceive both at the same time to have children. One reason given was that they both wanted a close physical bond with a child. While most people who have had twins will say that the first three years are extremely hard, that is one choice for two women in a relationship to experience a close physical mother-child relationship.

Another way, which I had not thought of until I came across Breastfeeding Without Birthing by Alyssa Schnell, is for the co-mother (the mother who did not birth the child) in a same-sex female couple to co-nurse, whether or not she has a (full) milk supply.

Rachel and Talana and their daughter

I talked about Alyssa’s work in another blog post about intended mothers who have children through surrogacy and breastfeed them. In episode 15 of Breastfeeding Outside the Box podcasts, Alyssa talks to Rachel Gazda and Talana Keister about their experience of co-nursing their daughter as co-mothers. I love the options this creates for parenting, not least because I have in my practice come across a number of same-sex female couples where for medical reasons they choose for the younger partner to carry the children but the older was then the one who stopped gainful employment or went part time to care for the children.

Breastfeeding After Surrogacy

July 27, 2016

I was not aware that women could breastfeed without giving birth until I came across Alyssa Schnell’s book Breastfeeding Without Birthing. The book is available in the UK on Amazon.  Alyssa describes how any woman can try to induce lactation (through breastfeeding, manual stimulation, pumping and/or herbs and medication) and breastfeed a baby. Not every woman will produce the full amount of milk a baby needs, but Alyssa encourages breastfeeding for the benefit of nursing and the bond it creates irrespective of the milk supply produced. She gives tips and instructions how to supplement the breast milk supply. The book is full of practical tips and instructions. Alyssa is an International Board Certified Lactation Consultant (IBCLC) working in St Louis, Missouri, USA. She induced lactation when she adopted her daughter after earlier having given birth to her elder children.

This book is now accompanied by a series of podcasts Breastfeeding Outside the Box where Alyssa Schnell and Hope Lien talk about the experiences of different parents who breastfeed their children other than in the obvious conventional way, including those who have breastfed without birthing. Hope is a lactation counsellor, also in the US, and between them they are putting together a series of interesting episodes.

What is interesting for the work I do is that women who adopt a child or have a child through surrogacy can in fact breastfeed their child if they choose to do so. Not only is this a way to provide the baby with breast milk, which the WHO recommends as the healthier way to feed a child (as opposed to processed formula), but it can also deepen the physical bond between intended mother and child. In episode 13 of the podcasts Hope talks to an intended mother who breastfeeds her child through surrogacy.

The book and the podcasts also deal with relactation or inducing lactation to nurse an older baby, so it is not too late to think about nursing even if you did not think about this before the birth. Find the Breastfeeding Outside the Box podcasts on your podcast app, download them and listen to them when you drive or in the gym or on the tube. I highly recommend them!

Three Parent Family

July 22, 2016

I recently had this enquiry:

My spouse and I have a three-year-old son. We are both registered as parents on his birth certificate. We live with a very close friend, Jamie, who has taken an active role in parenting our son throughout his life since he was very small.

Jamie is so involved in our son’s life that their role has effectively become that of a third parent, and we want the official state of affairs to reflect this. We want to give Jamie parental responsibility, and should my spouse and I both die, for example, we would want Jamie to have all the rights of a parent in making decisions about our son.

Sarah

[I have changed names and otherwise anonymised the post to protect the enquirer’s privacy]

Now the email was entirely gender-neutral: I did not know whether Sarah was married to a man or a woman, nor did the name of their friend give me a definitive indication of their gender, nor whether any of the adults were cis- or trans-gendered. In fact it would make no difference to my answer, which was as follows:

Dear Sarah

Thank you for your email.

There are two distinct things you want to look at:

1. Parental responsibility and

2. Guardianship

Parental Responsibility

The only way to give parental responsibility to someone who is not a parent (nor step-parent) of the child is by way of a child arrangements order that provides that the child will live with that person. In your case because your son is living with all of you, the child arrangements order would provide that your son lives with you, your spouse and Jamie.

To get that order, Jamie would need to make an application to the court on form C100. They would not need permission from the court because you and your spouse agree. At the FHDRA you would explain the situation to the judge. It is up to the court then whether to grant the order, refuse it or give further directions (such as for a Cafcass report) and adjourn the matter to another hearing.

You may feel that you can represent yourselves, but we can represent you if you wish.

Please note that you could not unilaterally revoke this order nor the parental responsibility and you would need to get another court order either to terminate the original order or to make another child arrangements order that provides who your son would be living with.

Guardianship

This provides for someone to have parental responsibility if the child’s parents were to die. It only comes into affect on death, so you can change it any time before then. It needs to be made in writing and signed and dated. It is often made as part of a will. If you already have a will, all you would need to do is to write the following, date and sign it:

I, xxx hereby appoint xxx of xxx to be the guardian(s) of any of my children who are under the age of eighteen at the date of my death.

A guardian appointment only takes effect once both parents have died unless the deceased parent had a child arrangements order in place that provided the child lives with them. So in your case if you have no child arrangements order (see above), Jamie would only become a guardian of your son if you were both going to die. However, if you do have a child arrangements order providing Jamie lives with all three of you, the appointment of a guardian would be effective if one of you were to die (provided you both appoint Jamie as the guardian). You should get individual advice on your own situation and in particular you would consider wording the appointment of a guardian so that it will only be effective if both of you were going to die even if there is a child arrangements order that your son lives with both of you.

Relocation Applications After Brexit

July 20, 2016

The UK and in particular London has an international and cosmopolitan population, with many bi-national couples, not least due to free movement of citizens in the EU. On separation and divorce issues sometimes arise when one parent wants to move back to their home country with the child and the other parent does not agree. In those cases the court will need to decide on the relocation application, often called leave to remove the child out of the jurisdiction.

European_union_flag-2I have had enquiries in recent weeks from parents who are thinking over their future and their children’s futures after the Brexit referendum outcome in June 2016. Some wonder how long they can stay living in England and Wales and want to move now because they fear they may have to leave in a couple of years. Others want to move abroad with their children now, so that their children can experience an international upbringing while this is still possible in the EU.

Most strikingly, Sterling dropped against the Euro by 20% as against the exchange rate at the end of 2015. The effect on property prices in the UK remains to be seen. There are issues which can make practical arrangement in relocation cases easier or more difficult as a result of the referendum outcome and, if and when it happens, Brexit, including:

  • The Sterling fares for flights and Eurostar trips are likely to increase, either because the company bases their fares in Euros and/or because fuel is based in US Dollar.
  • Buying property in Europe will be more expensive for UK migrants as a result of the drop in Sterling.
  • Maintenance payments for children paid from the UK will not go as far in Europe as they used to only a few weeks ago.
  • It may not be clear if British Citizens will be able to stay abroad post-Brexit and if so in what circumstances. Equally, EU citizens in Britain may not be able to stay here and should consider their situation now – either by applying for permanent residence and/or citizenship or by considering when is the best time for their child to move countries.
  • UK citizens and EU citizens moving back to their own country may not be able to use the EHIC card to obtain free or subsidised health care abroad and may need to take out private health insurance from the start post-Brexit, something that makes emigrating to the US expensive.

So while there are a lot of uncertainties and issues to come if and when the UK leaves the EU, some parents may want to consider their situation now and obtain legal advice to find the best way to face what may happen head on.

Questionnaires in Financial Proceedings in Divorce or Civil Partnership Dissolution

July 19, 2016

I recently got asked about schedules of deficiencies and supplemental questionnaires by someone acting in person who had a long questionnaire to answer and was worried he had not asked enough questions himself.

I often see solicitors and barristers in financial cases drafting very extensive questionnaires including questions which are not necessary to decide the case. My view is that this is motivated by lawyers being over-cautious to protect themselves.

The questions should all be relevant to the issues, so it is best to look at and/or draft the Statement of Issues first. Questions could arise out of

  1. the Form E itself (when information is missing, such as a pension valuation) or
  2. arise later from a response to a question or from a reply to a question in the Form E, for example when a response to how much last year’s bonus was is that it came to (unexpectedly high) £50,000 and then the question arises what happened to the money.

The questions I come across can, perhaps, be put in 3 categories:

  1. Issues which the other person must know for their case, for example if the Form E simply says that someone has private pension, but no valuation is provided.
  2. Issues which the other person does not need to know but would like to know as it may help them to present the case, such as the income of the new partner when there is no suggestion that the new partner will pay maintenance or that the other person’s own income is insufficient to meet their own outgoings, or if the case is clearly not a maintenance case because both spouses have similar income. In this category are also questions which are there simply to retaliate, so it may be necessary to look at one party’s credit card statements to see how they have spent large amounts each month, while the other party’s spending is not in issue, but the question will find itself onto the other questionnaire, often as an addition on the day of the first directions appointment. These should not be allowed, but often unfortunately are.
  3. Issues which the questioner would rather remain obscured, such as if in the Form E someone says they owe £5,000 to their brother. In that case the other person may ask for proof to give the person alleging the debt the opportunity to provide that and if they do not, then they can ask the court to disregard the debt as at best a soft loan. They ask the question so that they can make the argument later on. This is legitimate.

Sometimes people ask questions which are:

  1. Issues for directions, such as the valuation of a property, for which the court usually directs that the parties either agree the value after getting estate agents appraisals or if they cannot agree, instruct an independent valuer.
  2. Issues for cross-examination, for example: “Why have you still not found a job when you had a year to find one?”

The court should disallow such questions, but often allows them. Nobody will get points at the final hearing for having asked more questions and the judge probably will not read the questions and answers, which are often then irrelevant or are at best difficult to follow. The judge would normally only look at a question and answer if an issue was not agreed.

If after the first appointment you think there are issues which you forgot to ask and could have asked, first check whether the court will need to know the answer to decide any of the issues, which the parties have identified in their statement of issues at the first appointment. If so, you should then consider if the answer is already there or if you can provide it in another way. For example, if a party claims that they cannot possibility find a suitable property in an area which is convenient for the children’s school for £100,000 less than the family home is now worth, you could do your own research and provide particulars of properties for the court. If you view them and see why they are suitable (and include perhaps a couple which are not), that shows you have researched this thoroughly. Rather than ambushing the other party at the final hearing, however, you should then send the particulars to them or their solicitor and ask them to agree that these properties are suitable and, if not, state why not and provide particulars of properties which are suitable.

If the issue is in category 3 above, that could also be addressed in correspondence with a clear warning that the letter will be referred to at the final hearing and that you will submit that the court should disregard the debt to the brother (or as the case may be) unless proof is provided of the terms etc.

You should only make an application to the court for permission to adduce further questions if you are confident that you can explain that they are absolutely vital. If that is the case, you should write to the other party’s solicitors first setting out the question or questions and why they are vital and ask for the question to be answered voluntarily. Set a deadline for them to confirm it will be answered (say 7 days) and for an answer (day 21 days) and state that you will be making an urgent application to the court if there is no positive response. You could then ask the court to consider the issue in writing and attach the correspondence.

Unfortunately each case is very different, so I cannot say what applies in any particular case without considering the documents and taking full instructions.

If you want to make an appointment, get in touch.

Brexit and Family Law

July 8, 2016

As I’m sitting on a Eurostar train to Brussels, this is a good time to reflect on what Brexit means for family law in England. It is of course important to bear in mind that until the UK actually leaves the EU, all EU law continues to apply in full and even after that, all or some may apply.

There are two main pieces of EU law which are important for family law:

20151226_075810Brussels II: This regulation provides where you can start a divorce in the EU and where you can start proceedings about children. Wherever you have started a court case first, it stays there. So there can be a race to the court. Since English courts apply English law to divorce and financial matters and also to cases about arrangements for children, the outcome of a case in the courts in England can be very different to the outcome in another country. Don’t forget though that the other country may well apply English law to all or some of the aspects of the case. So for example in a recent case the couple are both German and live in England. The husband started a divorce in Germany and the German court applies English law to the divorce itself and also to child and spouse maintenance, but not to the sharing of assets. You need specialist advice on these matters from both (or all) possible countries where a divorce could be started.

For child arrangements the courts of the country where the child is habitually resident usually have jurisdiction. It also makes some additional provisions to strengthen the Hague Convention on Child Abduction for the EU, such as targets to deal with cases in a certain time.

After Brexit, the UK might enter into a treaty with the EU to continue the provisions of Brussels II or it might not. My guess is that it would not want to be seen as a friend of child abductors, so the pressure to enter into an agreement that apply the provisions on children cases to the UK is strong. It is not so strong on the divorce side.

Maintenance: The EU provisions for maintenance regulate where you can start a case and once you have a judgment how to enforce it in another EU country. There is already a treaty to apply very similar provisions to Switzerland, Iceland and Norway, the Lugano Treaty. So on this one, my guess is that Britain might simply become a signatory to the Lugano treaty too.

Aside from the law, and whether or not Brexit is ultimately going to happen, the immediate effect is that we cannot be certain about house prices and that Sterling has seen a drastic drop. So in any financial cases where there are assets in several countries, the comparison of the valuations is going to be difficult: If the parties (and the court) think that the exchange rates are going to recover in the medium to long term, they could take historic exchange rates from earlier in 2016. Unfortunately, since one exchange rate is going to favour one party and another the other party, this could all become contentious. This does, of course, not only affect the Sterling-Euro exchange rate, which was at €1.50 at the end of 2015 and now is below €1.20, a 20% drop, but also the Sterling-US-Dollar exchange rate and any other currency linked to the dollar or Euro in some way. Some parties might want to put financial negotiations on hold until there is certainty.

Where there are assets such as real property or shares where a current valuation is impossible to obtain, it might also be wise to wait unless it is clear an asset will be sold and the proceeds be shared equally. In that case it is just a matter for the parties to agree on the time of sale.

by Andrea Woelke

The Archers – Protecting Helen Titchener

July 6, 2016

As an avid listener of the Archers I have been fascinated by the storyline of the marriage between Rob and Helen. Rob’s abuse of Helen has now culminated in a bloodbath and criminal prosecution.The topic of today’s post is, however, what Helen could have done to protect herself before it came to this.

Storyline summary:

Helen Titchener (née Archer), the daughter of Pat and Tony, was suffering from anorexia when younger and was in a relationship with the former game keeper who then took his own life. She decided she wanted a child when she did not have a partner and had Henry (now 5) by IVF. She formed a relationship with Rob Titchener, who was working at the estate farm and was then still married. He divorced his wife and married Helen, to the astonishment of her family. Rob seems charming and takes everyone in. Over the last year or so, the listener witnessed how he became more and more controlling of Helen and was violent to her. He became ostensibly caring but even more controlling after she told him she was pregnant. He stopped her from working, then from driving, talked behind her back to destroy her friendship with Ian (casually told him that his husband had kissed a colleague and Helen knew), and Helen started doubting her own sanity. Eventually, she confided in her old friend Kirsty who gave Helen a spare mobile phone and put in a number of a domestic abuse helpline.

Helen decided to leave Rob and packed a bag. While cooking dinner in the kitchen, she told Rob and he took a knife and challenged her to kill him as this was the only way she would be able to get rid of him. He then seems to have run past her to get Henry and she took the knife and stabbed Rob.

Rob survived and Helen is now on remand for attempted murder. Henry was staying with Helen’s parents while Rob was in hospital, but Rob failed to return Henry after the first contact and there are now legal proceedings about where Henry should live, while Henry is living with Rob and only sees his maternal grandparents on Sundays. In the meantime Helen has given birth to a baby boy in a mother-and-baby unit of a prison who she has named Jack. Rob wants Jack to live with him (and has given him a different name). Helen has difficulties getting her own story together and giving her lawyers instructions.

IMG-20111001-00007hThe question for me while following the story was what Helen could have done if she had sought legal advice before she left Rob. This is tricky because Rob is good at lying, so good most people believe him and doubt their own senses and sanity. Even judges are regularly taken in by such people as the recent case of Ben Butler jailed for life for murdering his daughter shows. As for Helen Rob seems to have been “gaslighting” her. He seems to have deliberately filled Henry’s bath which Helen was running, with scolding water so that Helen would believe she was losing it, for example. If Helen had left, he would have almost certainly argued she was unfit to look after Helen (and later the then unborn child) and applied for them to live with him (as he is now doing). All the abuse was behind closed doors and it would have been Helen’s (very confused) word against Rob’s (convincing and clear) evidence.

If Helen had come to me I would have firstly considered her own and Henry’s safety, whether the risk to them was such that she had to leave immediately or whether perhaps she could stay to gather evidence. It might have been possible to leave Henry more and more with Helen’s parents using excuses and also get rid of Rob’s mother Ursula (who seems even more manipulative than Rob) by Helen pleading she needed a quiet house during the pregnancy. Helen should always have had an escape plan for immediate help including friends and family who could come and a way to dial 999 to call the police. Should could have talked to the police to make them aware of the situation anyway.

If the risk was too high, I would have advised Helen to leave straight away, but she would have had to be prepared for a lengthy and relentless legal battle over children issues and finances with Rob. She may have been able to mitigate this by going into a women’s refuge, but it is difficult to hide for ever and Rob would have no doubt made applications for contact with Henry, even though he is not his legal father (he apparently has parental responsibility).

If by using some safeguarding measures Helen could have stayed on for a bit, she could have considered how to ensure that there were independent witnesses to the abuse while not provoking Rob to have dangerous outbursts. This is a tricky strategy, but it may have worked. She could, for example, have asked Rob in the village shop for the car keys so other people independent of the family would have witnessed him refusing (or taken the keys so that he would have demanded them from her) etc. Rather than having oral evidence against each other, the only way to win a case against a convincing abuser like Rob is to have external hard evidence, written documents or entirely independent witnesses.

The other strategy, which incidentally Helen’s family should pursue now, is to delve deeper into Rob’s background and anything he did. This could include:
finding out why he suddenly left his job at the estate (he would have been sacked for misconduct) and once this was found out, get witness evidence from the colleagues and research into his previous employment too;

  • find the hunt protester he assaulted a year or so before and see if Shula Hebden-Lloyd will retract her evidence in favour of Rob Titchener which meant he was not charged for the assault (Shula should be aware she might risk a prosecution for perverting the cause of justice);
  • contact the boarding school Rob and Ursula visited and planned to send Henry to behind Helen’s back, check when they contacted the school and how they presented the plans, get this is all in writing and obtain witness statements from the head teacher or admissions officer;
  • contact Rob’s first wife to see if she will give evidence – this will be tainted as Rob will no doubt argue she is just trying to seek revenge – she might, however, have similar compelling independent evidence and could help with contacting previous employers;
  • Rob similarly tried to manipulate Tom, Helen’s brother, by making orders of stock for the farm shop behind his back etc. Tom could ensure that there is a paper (or email) trail for Rob’s behaviour there – again as family, this is not the best evidence;
  • talk to Henry’s school and get details of when exactly he was being difficult or had problems, see if that can be linked to particular behaviour of Rob.
    Overall this would have been a difficult case to put together. No doubt there would have been more examples in real life which one could have looked at. Helen’s and Henry’s safety should always have come first of course.

Clients often ask if they should film their partner so they have proof of the behaviour. The family courts hate this because it seems overly intrusive and harassing in itself. However, at times this might be the only way to have evidence of abuse. This is something Helen should have considered with her solicitor in great detail. If so, cameras could have been installed in the house without Rob noticing and the footage would only be used if absolutely necessary and after Helen was away and safe. This would have required considerable logistical planning.

Staying to gather evidence would have been a risky strategy, not least because Rob’s barrister would have cross-examined Helen and put it to her why she did not leave the abuse and exposed Henry to it if it was that bad. So protecting Henry and her must be the absolute priority in any event.

by Andrea Woelke

The Archers – Anna Tregorran the Lawyer

July 5, 2016

In last night’s Archers (4 July 2016) Anna Tregorran, the barrister representing Helen Titchener confessed to her mother that she was shaken by this case because in the past she failed to protect a client who was then killed by her abusive partner. This is unfortunately not fiction and does happen. It is good to show the human side to our work as family lawyers (even if there is some artistic licence in that there does not seem to be a solicitor), which can be tough going at times.

Unfortunately, abusive partners like Rob Titchener in the Archers sometimes tend to be extremely convincing witnesses and courts are fooled and believe their story instead of the victim’s account. The storyline is fascinating and has given me plenty of food for thought as well as recognition from cases I have dealt with over the years. The most frustrating thing is that here as in real life, we see people getting into a deeper mess because they fail to get legal advice or, when they do, do not act on it. So Pat Archer (Helen’s mother) was told not to talk to the police without consulting Helen’s lawyer. She went off and did and has now become a prosecution witness and must not talk to or even meet her own daughter.

Helen could have taken steps to protect herself and Henry much earlier, although it is often not clear if she would have been strong enough. I will write more about that some other time.

by Andrea Woelke

EU-Certificate for Divorce in England

July 1, 2016

A post in an online forum for Germans in London recently asked how to get the EU-Form after a divorce in England which the German authorities require. The poster was puzzled, as were the courts. Most family courts do not know about this, but can find out and will get the form signed by a judge and sealed if you fill it in.

The EU-Regulation about divorce jurisdiction and recognition, Regulation 2201/2003 has several forms in the Annexes, which – as the whole regulation – are of course available in all official EU languages. The idea is that you get a form sealed in one EU member state and anyone can then retrieve an empty form in their language, lay them side-by-side and check what each of the points say about the parties, date of divorce etc.

In England once you have a decree absolute, you will need to get the relevant form, which you can download and then send it to the family court where your divorce was pronounced and ask them to get it signed by a judge and sealed. I’d suggest to get at least 3 copies because you might need them for various official business. It is free and easy to get immediately after your divorce. It could be a lot more complicated when you need it 10 years later.

by Andrea Woelke

Smartphone Tracking Apps

July 1, 2016

Though your smartphone will give you immediate access to any documents, letters or emails that we send you and will inevitably save time and money, there is also the danger that it is not as secure as you think – and I’m not just talking about your passwords.

man holds iphoneThe rise in connectivity and apps has created a market for apps which are often marketed under the guise of “child safety” but can be used to track the location of the phone, access messages and emails and, in some cases, even listen in via the microphone and camera. What makes these apps dangerous is that they often still work when you think the phone is switched off and, unless you are tech savvy and aware of what should be on your phone, you may not even notice that someone has installed an app without your permission.

I recently came across a case where the former partner knew about someone’s every move and where he had spent the weekend. A tracking app on his phone was the only way that this would have been possible.

Just be aware of the apps that you have installed and of the push-notifications you receive. If you worry that an ex-partner may be tracking you via your smartphone, back up your data manually and restore it to factory settings, ensuring that you download only the apps you trust rather than a full restore like Google and Apple offer.

The best thing is never to let your partner get access to your phone in the first place and always password-protect it. If you are in doubt, special agencies can do a deep clean of your phone for you.

by Andrea Woelke