EU Regulation, civil partnerships and surrogacy: The last week in family law

The government has decided to opt into a European Commission proposal to repeal and replace the Brussels IIA regulation, which helps international couples resolve disputes involving more than one country, over their divorce and custody of their children. The regulation establishes rules to decide which EU Member State’s courts can determine divorce and other matrimonial matters, and parental responsibility matters, including residence and contact, and how orders arising from these cases can be recognised and enforced in another Member State. In a written statement to the House of Commons, Sir Oliver Heald, Minister of State for Courts and Justice, said that notwithstanding the result of the EU referendum vote in June, it was in the UK’s interests to opt into the proposal. He went on to say that the government “wants to avoid the risk that, if the new regulation comes into force before the UK’s exit, and the UK has not opted in to the regulation, the existing regulation will no longer apply to the UK because it might be deemed inoperable. This might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a member state.”

The House of Commons Home Affairs Select Committee has begun to hear evidence on Sharia councils operating in the UK. The Committee will examine how Sharia councils operate in practice, their work resolving family and divorce disputes and their relationship with the British legal system. The Committee has published written evidence submitted to it that is heavily critical of the Muslim Arbitration Tribunal (‘Mat’) in Nuneaton, Warwickshire. The Mat states on its website that it urges the Crown Prosecution Service to “reconsider” criminal charges brought against Muslim men accused of domestic violence.

The Court of Appeal will this week hear an appeal from a London couple against a judgment dismissing their application for judicial review of the Government’s ban on different-sex civil partnerships. The couple – Rebecca Steinfeld and Charles Keidan – demand the right to a civil partnership, arguing that they face discrimination under the present law, which gives gay couples the option of marriage or a civil partnership but denies the latter to heterosexual couples. Keidan told the Observer: “A civil partnership would reflect who we are. It’s a modern social contract that doesn’t have the associations of marriage but would give the protection that we and other cohabiting couples crave.” The judgment of the Court of appeal is expected to be reserved, and handed down at a later date.

Hospitals are forcing surrogates to hand over new-born babies to parents in car parks, for fear they may fall foul of “dire” and “outdated” surrogacy laws that are failing families, an investigation by The Independent has revealed. The paper states: “Surrogates, parents and lawyers say such handovers are “demeaning” and leave families feeling distraught, humiliated and let down by an ongoing failure to properly legislate for surrogacy. They say hospitals are insisting the emotional moment of receiving the baby happens in the bleak environment of the car park because hospital staff fear they could be implicated in legal disputes if the exchange happens on NHS premises.”

And finally, still on the subject of surrogacy, the High Court has ruled that it cannot award legal parenthood to the biological parents of twins born through a UK surrogacy arrangement, because the surrogate who carried them has refused to give her permission. Under the present law a parental order cannot be made without the permission of the surrogate, although the Law Commission has recently announced that surrogacy may be included in their next programme of law reform. The case has been adjourned, in the hope that the surrogate changes her mind.