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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33311
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I would like to appeal against a magistrate court decision

Customer Question

Hi I would like to appeal against a magistrate court decision that went against me ,how can i appeal aginst the decision made by a magistrate court judge?My situation is as follows .My wife acted as a surrogate carried for her sister and had a child.I agreed with me wife that she would be the mother and i would be the father of the baby when she was born as according to the surrogacy laws in the uk clearly says" the woman who gives birth is the childs mother and her husband is the father" This is regardless of biology.Me and my wife agreed in July 2012 and she was pregnant with the baby in August 2012.
However while pregnant my wife met another man and began a relationship with him,when the child was born instead of recording me as the childs father on the birth certificate she recorded her new boyfriend as the father.I point out again that she met this man after she was pregnant.
The reason she did this and denied my parenthood and broke our agreement is because she wanted me out of her life and she did not want me coming between her new relationship with her new boyfriend.I found this to be totally dishonest and also illegal ,i then started divorce proceedings and at first she was happy about it and said she would agree to divorce back in 2013 .Despite the divorce proceedings being started by me ,she then started to backtrack on the divorce too and became irrational then totally un co-operative.The divorce petition went on for 2 years ,mostly trying to find her and serve her with court papers,the divorce proceedings is still going on to this day .I have a penal order dated 16th of August 2016 (this month) for her to submit her form e and attend court (she has not even submitted a single paper to court)I applied to court at the same time (this month) for application for decleration of parentage for the baby who is now 3 and i do not know where the baby is or who with but she is not with my wife.I am of the opinion the baby could be with her sister.I have found out also that her relationship with the man she met while pregnant has ended and that is why she is not co-operating with the divorce.She now does not want to divorce me on the hope we can reconcile.
However with all this that has gone on i have lost all confidence in her integrity and wish to divorce.I have now a dicri nisi and a penal order from court against her.I applied for the decleration of parentage but the judge in court threw it out ,his reason was because the baby is born surrogate and does not carry my DNA and also that she might have a surrogacy agreement with others that has nothing to do with me.I feel a wrong decision was made by the judge as 1. surrogacy contacts are not enforced by UK law and 2.the father and mother of the surrogate born baby are the woman who gives birth and her husband regardless of biology.I am of the opinion that the judge has made an error and overlooked surrogacy laws and fell strongly i have a case to appeal.What is your advise please
Submitted: 3 months ago.
Category: Family Law
Expert:  Clare replied 3 months ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further informtaion first.

Was the surrogacy dealt with via a Fertility clinic or privately?

Customer: replied 3 months ago.
it was dealt by a fertility clinic .it could not have been done private as the egg of my wifes sister had to be farmed from her ovary.Her womb cannot gestate
Customer: replied 3 months ago.
did you mean by private as done at home ?
Expert:  Clare replied 3 months ago.

Where does her sister live?

Customer: replied 3 months ago.
Her sister lives in Southampton .my wife lives with another relative in torquey .her ex boyfriend who she was with and registered who is not genetically related left her and lives in Birmingham .I have contacted him but he said he won't have anything to do with it anymore and won't co operate at all .it's so complicated now and all because of my wife's stupidity ,I am left to pay for her acts
Expert:  Clare replied 3 months ago.

has a Parental Order been made relating to the child?

Customer: replied 3 months ago.
I am not sure about that ,but if it has been it would have been with the fake birth certificate that her ex boyfriend would have signed the parental order .I am of the opinion that's the reason why my wife is completely avoiding the divorce ,the court and refusing to file her financial form e and also why her ex boyfriend won't xo operate .I am of sure opinion the parental order is illegal ,as a falsified birth certificate and false father as in her boyfriend been used to sign parental orders .as you can imagine it's a massive mess and why I am left in the cold .
Customer: replied 3 months ago.
The judge has overlooked all this in the deceleration for parentage and decided I have no case because I am,not the biological father and its my wife's business what she does .I feel let down by law and the judge .do I have case to apply to higher court and a professional judge in crown court maybe ? I feel a better judge must see the dis honesty
Expert:  Clare replied 3 months ago.

How do you intend to prove that the child is "yours" when there is no DNA test that can be done?

Customer: replied 3 months ago.
I want to prove only that my wife and her family has been dis honest and that has seriously had a damage on my life ,I have suffered depression and financial loss and a long expensive divorce .I dont understand why a DNA test cannot be done ? If court orders it under the circumstances it will prove the child is not biologically related to me wife or her ex boyfriend .
Customer: replied 3 months ago.
All I wanted to probe was that the child is surrogate and my wifes dishonestly has had immense damage on me
Customer: replied 3 months ago.
I have a penal order from court now to file her form e and attend the next court date .I am also sure my wife in court will concent to the child being of surrogacy .that will prove the ex boyfriend is not the biological father and therefore the birth certificate is flase .would this be of any help in court to my case maybe ?
Expert:  Clare replied 3 months ago.

The reason why the court dismissed the application is because you have no way of proving what you believe is true.

Simply because there is no DNA link to you your wife or her ex boyfriend still would not prove that the child was the one conceived at the clinic.

In addition the reason you have for making the application in respect of a child you are NOT biologically related to is not one which is of benefit to the child

In fact you do NOT have good grounds for appeal.

However if you still wish to incur the expense of an appeal you need to seek permission to appeal, and file your actual appeal at the same time

The process is set out here

http://www.familylaw.co.uk/system/uploads/attachments/0002/0019/FPR_PD30A.pdf

Please ask if you need further details

Customer: replied 3 months ago.
Furthermore she has also told me her ex boyfriend was not a real boyfriend but a family friend made up to get the parental order easier as her family did not trust me.I dont know if to believe her as I am very sceptical .but I know my wife will confess in court if forced to come there .I am very confused what to do and what to believe
Customer: replied 3 months ago.
Thank you for your advice ,under the circumstance I will not appeal.If my wife does confess that the child is born of surrogacy and ex alleged ex is not the biological father ,would this be considere as proof ? I am sure once in court my wife will be ready to confess the truth .that the child was conceived artificially with her sisters egg and her ex is not the biological father .would I then have a case to appeal ?
Expert:  Clare replied 3 months ago.

What do you wish to achieve by this?

Customer: replied 3 months ago.
The truth .I have suffered severe financial and mental illness and so has our other daughter who lives with me ,because of this our daughter has not had any contact with her mum since she was 13.her family have ruined our marriage for this and now our life.I want the truth out ,a closure and move on
Expert:  Clare replied 3 months ago.

Then I am sorry but there is no question of an out of time appeal being successful - none of those are good reasons for a DNA test on a child

Customer: replied 3 months ago.
My wife and her family have destroyed my life ,my marriage and blocked my divorce case to a point where it has finacialy crippled me .all to hide the truth and their dishonesty .I have nothing left .no marriage ,no divorce so I can move on and no money left .the divorce case has cost me £46 000
Expert:  Clare replied 3 months ago.

I understand that (although I cannot see how your solicitor has allowed matters to run so far out of control) but this is not a way of taking it further I am afraid

Customer: replied 3 months ago.
I would like my wife and her family to be held accountable to the damage they caused me and our daughter .that really is my aim
Expert:  Clare replied 3 months ago.

This is not a way of doing so - you can appeal if you wish but there is no chance of success based on what you have said

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