ADR: what is it, and how might it help you resolve your family dispute?

alternative dispute resolution arbitration

ADR: what is it, and how might it help you resolve your family dispute?

Protecting the interests of families is at the heart of what we do, and for our clients who are parents, we encourage them to put the children at the very centre of their decision making. That is why there are times when our family law experts may advise that going to court is not the best way to resolve a dispute.

We offer a range of approaches to help you resolve successfully the issues between you and your partner. Non-court dispute resolution (alternative dispute resolution or ADR) is something that we will discuss during our first meeting when we review your situation; together we will determine the best option for you and your family. Child and family law disputes can be extremely costly; reaching an agreement outside of court has a much higher success rate and can help to preserve good relations. And reaching agreements out of court generally takes considerably less time and money than a contentious, litigious approach.

This month our family law specialists will guide you through all you need to know about ADR: partner Caroline Bilous, a trained collaborative lawyer, a member of Resolution and an acknowledged expert in being able to assist her clients resolve their family disputes using alternative means of dispute resolution through the collaborative process, here explains arbitration.

 

What is Arbitration?

Arbitration is a form of dispute resolution that has been available for family disputes in England and Wales since March 2012.

The process involves the parties entering into an agreement under which they choose an Arbitrator to make a decision on the division of their assets. The Arbitrator’s decision is then binding on both parties.

What are the benefits of Arbitration?

There are a number of benefits to arbitration over the Court process including:

*  you are in control of the process. You can select your preferred Arbitrator from a list of specially trained experts who are all registered on the CIArb.org website. And unlike the Court process, you can choose the Arbitrator who is best suited to your own set of circumstances. Here at McAlister Family Law we have our own in-house Arbitrator.

*  The process can be much quicker: this means you could expedite the process and decide on what issues need to be resolved. The process can also be designed by both parties, and if there is any disagreement on the timetable then you could always consult the Arbitrator who can make a decision. For instance, if you wish to agree the forms of disclosure between you then you can schedule the resolution of issues very quickly and at the convenience of the Arbitrator, instead of waiting your turn in the Court list. This can result in a final decision, in the absence of an agreement, being made much more quickly.

*  Finally, it can be more cost-effective as you and your spouse can determine the way in which the Arbitrator deals with your case. You can agree to bypass some of the usual stages in the Court process (although it’s important to note that you do have to pay the costs of the Arbitrator).

And arbitration may well be a welcome alternative for those people facing financial challenges in the ongoing Covid-19 crisis. Also, non-urgent financial disputes are being given the lowest priority when it comes to the allocation of Court hearings, so there are no guarantees how long a case might take.

 

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

Surrogacy: what does it involve, and what are your rights?

surrogacy

Surrogacy: what does it involve, and what are your rights?

What a month Naomi Campbell is having. First she announced the birth of her first daughter and a few days later she celebrated her 51st birthday. The supermodel shared the first photo of her newborn on Instagram, posting a snap of the baby’s tiny feet in her hand, captioned: “A beautiful little blessing has chosen me to be her mother. So honoured to have this gentle soul in my life there are no words to describe the lifelong bond that I now share with you my angel. There is no greater love.”

naomi campbell baby
Photograph: @NaomiCampbell

There has been speculation that Naomi used a surrogate, but the supermodel hasn’t said anything about that, nor should she have to. But it does lead us to the subject of surrogacy, what it involves, and what your rights are.

Senior Associate Nicola McDaid explains.

There are a number of differing types of surrogacy now available, and UK law supports same-sex parents conceiving through surrogacy in the same way as it does different-sex couples.

There is what might be termed traditional surrogacy, when the surrogate provides her own eggs to achieve the pregnancy. The intended father, in either a heterosexual or male same-sex relationship, provides a sperm sample for conception, through either self-insemination at home or artificial insemination with the help of a fertility clinic. If either the surrogate or intended father has fertility issues, then embryos may be created in vitro and transferred into the uterus of the surrogate.

Gestational surrogacy, when the surrogate doesn’t provide her own egg to achieve the pregnancy, is when embryos are created in vitro (the literal translation of which is “in glass”, in this case meaning outside their normal biological context), and transferred into the uterus of the surrogate, using the eggs of the intended mother, fertilised with sperm of the intended father or donor.  Alternatively, it might involve the eggs of a donor, fertilised with the sperm of the intended father, where the intended mother cannot use her own eggs, or the intended parents are a same-sex male couple.

Your rights as a donor, a surrogate or an intended parent

Your rights differ depending on whether you are the donor, the surrogate, or the intended parent(s).

A typical situation is when a couple finds a surrogate, and all parties draw up, and agree to, a contract whereby the baby is placed in said couple’s care when s/he is born. However, there are certain issues of which you should be aware:

  • Surrogacy arrangements and contracts before/after birth are not legally binding in UK law, and do not transfer parental responsibility, which means that the surrogate (in effect the birth mother) remains the child’s legal mother until the court makes an order removing her parental status. The woman who gives birth to a child is always considered the legal mother in UK law, even when using a donated egg
  • Intended parents can make an application for a parental order which reassigns parenthood fully and permanently, and extinguishes the legal status and responsibilities of the surrogate (and her husband or wife.) Same-sex parents have been able to apply for a parental order since 6 April 2010.

How do you become a child’s legal parent?

As outlined above, you can apply for a parental order; if you are applying with a partner, you must meet the following criteria ( although this can be subject to interpretation and without question is ripe for amendment):

  • one of you must be genetically related to the child – in other words, be the egg or the sperm donor
  • you must be married/civil partners/living as partners in an enduring family relationship
  • have the child living with you
  • reside permanently in either the UK, Channel Islands or Isle of Man
  • You must apply within six months of the child’s birth

If you are applying as a single person (enforced since 3 January 2019)

  • you must be genetically related to the child in other words, be the egg or sperm donor
  • have the child living with you
  • reside permanently in either the UK, Channel Islands or Isle of Man
  • You can apply for a child of any age if you apply before 4 July 2019.  After that date, you must apply within six months of the child’s birth

Whichever the scenario, the court must be satisfied that you have freely, and with full understanding of what is involved, agreed unconditionally to the making of the Parental Order.  What’s more, the court must be satisfied that no money or other benefit ( other than expenses responsibly incurred) has been given or received by either applicant(s), unless authorised by the court.

If neither you nor your partner are genetically related to the child, adoption is the only way you can become the child’s legal parent.

For many, the surrogacy journey can be full of potential pitfalls and it is important that you research the subject as fully as possible; we would certainly advise you consult a lawyer well-versed in the subject.

For example, if you donate sperm through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic, you will not:

  • be the legal parent of any child born
  • have any legal obligation to any child born
  • have any rights over how the child will be brought up
  • be asked to support the child financially
  • be named on the birth certificate

Bear in mind that if you use an unlicensed clinic to donate sperm, you will be the legal father of any child born from your donation, under UK law.

Some people, who consider the UK’s laws with regard to surrogacy to be restrictive, may seek help abroad. However, bringing a surrogate-born baby back into the UK is a legal minefield.  You can read more about international surrogacy here.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

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