Solicitors’ Delay in preparing a Will – When is it Negligent?
The decision of A against B & C was delivered by the Court of Appeal of England and Wales on Wednesday 14 March.
The court unanimously found in favour of Kingsley Napley’s client (A), the biological father in a situation where a lesbian couple (B & C) bringing up the child sought to restrict his contact.
One member of that couple (B) had entered into a marriage of convenience in 2007 with the father (A). She was concerned about the reaction of her strictly religious family if she had a child outside of traditional marriage. The biological parents (A and B) never intended to live together – it being intended that the child would be living in the household of B and C from birth.
Prior to the child’s birth, the three adults discussed the level of involvement that the father would eventually have in the child’s life. Following the conception of the child, the father hoped for overnight contact and a greater role than B and C were prepared to offer. In his court evidence he expressed his joy at seeing his child, and his wish to be involved more heavily in the child’s life. The mother and her same-sex partner told the court they wished to provide for the child’s needs as a nuclear 2 parent family, and that the father’s role should be more restricted.
The Court of Appeal said that the High Court had been wrong to refuse overnight contact. The High Court has been ordered to reconsider the case. The appeal court also said there could be no strict guidelines in these difficult and important cases – except that the needs of the child should predominate. The law was still evolving to meet the demands of new family structures. One judge said talk of a primary and secondary family was probably unhelpful.
The court also questioned whether it was right for the father in these cases to be labelled as simply the “donor” referring to his role as sperm donor, since that would diminish what he potentially had to offer as a caring father in the child’s life.
This case took place outside the provisions of the Human Fertilisation and Embryology Acts of 1990 and 2008, which provide for very restricted rights of fatherhood in the United Kingdom in cases of sperm donation through licensed fertility clinics.
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