Tom Quail, family law specialist at WJM, has issued a warning to those considering a ‘DIY’ sperm donor agreement instead of going through regulated clinics.

As the unregulated sperm donation market continues to grow and more people opt for private arrangements, greater awareness of the legal implications is needed.

He said: “While it is illegal to sell sperm in the UK, there is a growing trend of people obtaining sperm through unofficial and unregulated channels, whether that’s by using online marketplaces or making arrangements with close friends.

“However, as well as the lack of screening for medical conditions or background checks on donors, there is also a host of legal implications which it’s vital to consider.

“Some people going down this route may decide to draw up and sign a ‘donor’ or ‘co-parenting’ agreement to set out in writing what is agreed between all parties, believing these are legally binding. They’re not, nor are they a guarantee about the role a donor will or won’t have in the child’s life.”

He warned that the consequences of donating sperm through a licensed clinic and donating through a private arrangement differ considerably.

Donors who donate their sperm through a licensed clinic are not treated as the legal father of any child they help conceive. This means that a clinic donor cannot be held financially accountable for their genetic children, nor will any donor-conceived children have any rights of inheritance from the donor. Furthermore, the donor will also not have any say in the upbringing of the child.

By contrast, a donor who donates sperm outside of a licensed fertility clinic will not acquire the same automatic protection, and will be considered the legal father of the child.

Tom added: “A sperm donor should think carefully about the role they may wish to play in the child’s life and whether they want to have any contact with the child in future. If they don’t, there is the potential for disputes further down.

“Going down the non-licensed route can lead to major problems and exposes all those involved to potential legal battles in future.

“Some people may feel the licensed clinic route is cost prohibitive, but in reality going down the route of a DIY donor legal agreement could have considerable consequences so it is important to take this into consideration and plan carefully from the outset.”

October 26 2022, Virtual Seminar

2pm – 5pm: £180

Speaker : Tom Quail, Wright, Johnston & Mackenzie LLP 

The Children (Scotland) Act 2020 received royal assent in August 2020. The changes have not yet been brought into force as the Government, Local Authority Courts and Children’s Hearings prepare for the changes before they have to start delivering them.

The new Act brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC).

This seminar will consider the main changes for children and young people being:-

• Children and young people having more opportunity to give their views to court;
• The courts having to explain decisions to children;
• Children having Support Advocacy Workers in family court actions;
• Measures to keep children safe in contact centres;
• Registration of Child Welfare Reporters and Curators ad litem and rules of how they should carry out their duties;
• The court having to investigate the reason contact arrangements are not working
• Rules to avoid legal proceedings taking too long

The seminar will look at the potential impact, the changes the new Act will bring and the advice which requires to be given by family law/child law practitioners.

Book your place here: http://ccpdtraining.co.uk/booking/booking-childrenscotlandact

With international travel back on the cards after two years of significant restrictions, it stands to reason that we’re going to experience an increase in the number of people relocating to new countries.

Some who live in Scotland but are originally from elsewhere may have been hoping to move back to their home country for some time but have been unable to do so until now as a result of travel restrictions.

For those who are parents, this also means facing the challenge of relocating children. This can be a lengthy process at the best of times, but for separated parents, it can be incredibly complex from a legal standpoint.

The decision to relocate can be incredibly emotional and complicated and when children are involved, another layer of complexity is added, especially when the parents are separated and have differing opinions on the relocation.

When this is the case, it can be near enough impossible for the other parent to relocate to their selected country.

This presents a legal issue and one that should be handled as soon as possible when planning a significant move.

Taking a child out of the country without having the other parent’s consent, can be considered wrongful removal or abduction. Getting the child back from this situation is also dependent on where the child has been moved to.
If a child has been moved permanently to a country that is part of The Hague Convention on the Civil Aspects of

International Child Abduction, then there are procedures in place to ensure the safe return of the child to the UK.

If, however, the country is not part of this convention, a different approach must be taken. This involves getting consular and diplomatic services involved including the Foreign and Commonwealth Office.

In Scotland, it is not a criminal offence to take your own child abroad without the permission of the other parent unless there are certain court orders in place. The legislation differs in England and Wales where a single parent is prevented from taking children abroad without another parent or carer’s permission.

The Children (Scotland) Act 1995 does not require a signature from the other parent as proof of consent to the child being moved away, however, it is generally a wise course of action to obtain this anyway.

It is important to keep in mind that other countries may have different regulations, and these should be thoroughly researched before travel.

Some countries will require signed affidavits from the other parent as proof of consent to travel, where others will want to see the child’s birth certificate, or even an extract decree of divorce if that is the current state of the relationship.

Border controls are very thorough when an adult is travelling with a child, and most family lawyers can assist with organising all the relevant documents and paperwork that may be required.
If one partner does not want their child to move to another country, they may raise a court action, which would prevent the other parent from taking the child out of the UK.

They may even go one step further and ask the court to have the child’s passport surrendered and their whereabouts declared at this point.

The most important factor to consider before moving abroad is what is best for the child. Of course, there are lots of factors to consider and weigh up.

Arrangements must be made to ensure parents will be able to remain in regular contact with their child, as well as what their schooling situation will be when they relocate, amongst other factors such as living circumstances.

Courts are also likely to take the child’s feelings on the situation into account but will balance this with the proposal of the parent who wishes to relocate and determine if they have a genuine motivation to move and that they do not wish to sever any contact between the other parent and the child(ren) in question.

It is always advisable to seek legal advice, whether you are the parent hoping to move abroad or the other parent in the scenario before the relocation process is too far along.

A solicitor will be able to talk you through each step and advise on the process to ensure the child’s best interests are taken into consideration at every turn.

This article first appeared in The Scotsman 

Whether you are married or in a cohabiting relationship, one of the first things your solicitor will focus on during your initial meeting will be to establish the date you separated from your spouse or partner. 

In divorce, the date of separation is important because the value of matrimonial property will be determined on the date you separated.  In essence, you are looking to obtain the balance sheet of the marriage at the date of separation – that is the total of all assets which make up the matrimonial property after deducting any debts. 

If you are cohabiting, when you cease to cohabit is critical because you only have one year from the date you separate to bring your claim to court.  If you fail to meet this deadline, the financial claim you may have against your former partner will fall. 

How then is the date when you stop cohabiting established?

In many situations the date will be obvious and not subject to dispute. 

But sometimes parties to a relationship will have differing views as to when a relationship broke down.  A couple may still live in the same house but have stopped cohabiting for legal purposes long before one of you moves out. 

The issue will be determined objectively so your solicitor will ask you questions about the nature of your relationship and changes in the normal pattern of behaviour. This will include sleeping and eating arrangements, holidays and social activities, and whether there was any change in the usual financial arrangements which operated between you.

For couples in a cohabiting relationship which may be breaking down it is imperative to get early legal advice on this issue to alleviate the risk of losing your right to make a claim against your ex.

If you have any questions following a separation, please contact our Roger Mackenzie at rlm@wjm.co.uk

Get in touch – call us on 03333 661 274