#16945 - Parental Responsibilities And Rights

PROVISIONS
Assisted Reproduction
Human Fertilisation and Embryology Act 1990 (amended HFE Act 2008)	Section 27	Meaning of “mother” (1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.
	Section 28	Meaning of “father” (2) If— (a) at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was a party to a marriage, and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to subsection (5), the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent (3) If no man is treated, by virtue of subsection (2) above, as the father of the child but— (a) embryo or sperm and eggs were placed in the woman in the course of treatment services provided for her and a man together, and (b) creation of the embryo carried by her was not brought about with the sperm of that man, then, subject to subsection (5), that man shall be treated as the father of the child.
	Section 29	Section 29 Effect of sections 27 and 28. (1) Where by virtue of section 27 or 28 a person is to be treated as the mother or father of a child, that person is to be treated in law as the mother or father of the child for all purposes. (2) Where by virtue of section 27 or 28 a person is not to be treated as the mother or father of a child, that person is to be treated in law as not being the mother or father of the child for any purpose.
Parental Responsibility and Rights
Children Act 1989	Section 1	Welfare of the child. (1) When a court determines any question with respect to— (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration. (3) Court shall have regard in particular to— (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.
	Section 2	Parental responsibility for children. (1) Where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility. (1A) Where a child— (a) has a parent by virtue of section 42 of the Human Fertilisation and Embryology Act 2008; or (b) has a parent by virtue of section 43 of that Act and is a person to whom section 1(3) of the Family Law Reform Act 1987 applies, the child’s mother and the other parent shall each have parental responsibility. (2) Where a child’s father and mother were not married to each other at the time of his birth— (a) the mother shall have parental responsibility for the child; (b) the father shall have parental responsibility for the child if he has acquired it in accordance with the provisions of this Act. (2A) Where a child has a parent by virtue of section 43 HFEA 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies— (a) the mother shall have parental responsibility for the child; (b) the other parent shall have parental responsibility for the child if she has acquired it in accordance with the provisions of this Act.
	Section 3	Meaning of “parental responsibility” (1) “Parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
	Section 4	Acquisition of parental responsibility by father. (1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if— (a) he becomes registered as the child’s father under [Births and Deaths Registration Act] (b) he and the child’s mother make an agreement (“parental responsibility agreement”) providing for him to have parental responsibility for the child; or (c) the court, on his application, orders that he shall have parental responsibility for the child.

General — Academic Commentary
*Herring 2017	Who is a Parent? Four developments have caused re-examination of parenthood: (i) reproductive technologies (ii) increased marital/relationship breakdown — common for children to be cared for by someone other than genetic parent (iii) increased acceptance of “psychological” parents (ie. regarded by child as parent) (iv) changes in what it means to be a mother or father Different meanings of being a parent in law Baroness Hale: Re G (Residence: Same-sex partner) — distinguish between three key elements: (a) legal; (b) genetic and (c) social Often but not always carried out by same person Bainham: law distinguishes between: parentage (genetic link); parenthood (legal status) and parental responsibility (rights and duties of being a parent) Benefit of different understandings: increases flexibility — law able to capture the variety of ways in which an adult can act in a parental role Not about which to prefer but about accommodation distinctive contributions that individual made to life of the child HOWEVER: In reality, increasing number of people who can be regarded as parents is increasing number of people who can be regarded as fathers Who is the child’s mother? For legal purposes, mother is woman who: (a) gives birth to the child (whether or not genetically related) — gestational, rather than genetic link, which is crucial (b) obtains adoption order or parental order Note: In relation to same-sex couples, only woman who gives birth is the mother — partner can be recognised as ‘second parent’ but will not, as a matter of law, be defined as a mother — however: no legal significant in different in name — fully a parent before the law Who is the child’s father? Man who wishes to prove he is father of the child must show: (a) genetically father; or (b) legal presumption of paternity applies; or (c) father by virtue of statutory provisions governing assisted reproductive; or (d) obtains adoption or parental order. HFEA provides exceptions to basic rule that genetic father is the father: Section 41: sperm donor is not the father Section 42: man who dies before sperm used in procedure leading to pregnancy not father (unless consented before death) HFEA provides that man not genetically related to child is legal father in following cases: Section 35: Husband of woman who gives birth unless husband did not consent Note: Father’s status secured through the mother (ie. acquires parental status through being her husband or as a result of her consent) Bainham: Objection to extension of notion of parenthood under the HFEA — need to distinguish between parental role and parental status Parentage should follow genetics — should use parental responsibility to recognise role played by partners in assisted reproduction Surrogacy Who has parental responsibility? Mothers: automatic parental responsibility Explained on basis that mother throughout pregnancy has sustained child and undergone great sacrifices — demonstration of commitment through pregnancy — accepted that she will be involved in care of child Fathers: secured via: (i) mother: married to mother; registered on birth certificate; order parental responsibility agreement with mother; (ii) Court: parental responsibility order from court (or residence order) While case law inconsistent, appears that if father has shown sufficient commitment to child then parental responsibility order will be made unless serious concerns that he may harm the child View that father needs to be vetted and approved before acquiring parental responsibility Note: Father, unlike, mother has a choice (ie. can father child without parental responsibility) — cultural assumption that it is ‘natural’ for mothers to care for children, but not necessarily expected of fathers Non-parents: appointed guardian; obtain residence order; granted emergency protection order Who should get parental responsibility? (a) Unmarried fathers: Acquire parental responsibility via: agreement with mother and being registered on birth certificate or registering parental responsibility agreement; marrying child’s mother; parental responsibility order from court Debate as to whether parental responsibility should be automatic Key question: where the burden should lie — on mother or State to establish that father is unsuitable, or on father to show suitability? Heart of debate: what parental responsibility means Argument: Law is requiring too much of responsibility — single concept cannot: (i) acknowledge parent’s commitment; (ii) stamp of approval for parenting role; (iii) provide parents with rights and responsibilities of parenthood; and (iv) decide who can make important decisions in relation to child Thus: Law develop two categories of parental responsibility: one to acknowledge...

*Herring

2017

Who is a Parent?

Four developments have caused re-examination of parenthood:

(i) reproductive technologies
(ii) increased marital/relationship breakdown — common for children to be cared for by someone other than genetic parent
(iii) increased acceptance of “psychological” parents (ie. regarded by child as parent)
(iv) changes in what it means to be a mother or father

Different meanings of being a parent in law

Baroness Hale: Re G (Residence: Same-sex partner) — distinguish between three key elements: (a) legal; (b) genetic and (c) social
- Often but not always carried out by same person
Bainham: law distinguishes between: parentage (genetic link); parenthood (legal status) and parental responsibility (rights and duties of being a parent)
Benefit of different understandings: increases flexibility — law able to capture the variety of ways in which an adult can act in a parental role
- Not about which to prefer but about accommodation distinctive contributions that individual made to life of the child
HOWEVER: In reality, increasing number of people who can be regarded as parents is increasing number of people who can be regarded as fathers

Who is the child’s mother?

For legal purposes, mother is woman who:
- (a) gives birth to the child (whether or not genetically related) — gestational, rather than genetic link, which is crucial
- (b) obtains adoption order or parental order
Note: In relation to same-sex couples, only woman who gives birth is the mother — partner can be recognised as ‘second parent’ but will not, as a matter of law, be defined as a mother — however: no legal significant in different in name — fully a parent before the law

Who is the child’s father?

Man who wishes to prove he is father of the child must show:
- (a) genetically father; or
- (b) legal presumption of paternity applies; or
- (c) father by virtue of statutory provisions governing assisted reproductive; or
- (d) obtains adoption or parental order.
HFEA provides exceptions to basic rule that genetic father is the father:
- Section 41: sperm donor is not the father
- Section 42: man who dies before sperm used in procedure leading to pregnancy not father (unless consented before death)
HFEA provides that man not genetically related to child is legal father in following cases:
- Section 35: Husband of woman who gives birth unless husband did not consent
- Note: Father’s status secured through the mother (ie. acquires parental status through being her husband or as a result of her consent)
Bainham: Objection to extension of notion of parenthood under the HFEA — need to distinguish between parental role and parental status
- Parentage should follow genetics — should use parental responsibility to recognise role played by partners in assisted reproduction

Surrogacy

Who has parental responsibility?
- Mothers: automatic parental responsibility
  - Explained on basis that mother throughout pregnancy has sustained child and undergone great sacrifices — demonstration of commitment through pregnancy — accepted that she will be involved in care of child
- Fathers: secured via:
  - (i) mother: married to mother; registered on birth certificate; order parental responsibility agreement with mother;
  - (ii) Court: parental responsibility order from court (or residence order)
    - While case law inconsistent, appears that if father has shown sufficient commitment to child then parental responsibility order will be made unless serious concerns that he may harm the child
  - View that father needs to be vetted and approved before acquiring parental responsibility
  - Note: Father, unlike, mother has a choice (ie. can father child without parental responsibility) — cultural assumption that it is ‘natural’ for mothers to care for children, but not necessarily expected of fathers
- Non-parents: appointed guardian; obtain residence order; granted emergency protection order
Who should get parental responsibility?
- (a) Unmarried fathers:
  - Acquire parental responsibility via: agreement with mother and being registered on birth certificate or registering parental responsibility agreement; marrying child’s mother; parental responsibility order from court
  - Debate as to whether parental responsibility should be automatic
    - Key question: where the burden should lie — on mother or State to establish that father is unsuitable, or on father to show suitability?
      - Heart of debate: what parental responsibility means
- Argument: Law is requiring too much of responsibility — single concept cannot: (i) acknowledge parent’s commitment; (ii) stamp of approval for parenting role; (iii) provide parents with rights and responsibilities of parenthood; and (iv) decide who can make important decisions in relation to child
  - Thus: Law develop two categories of parental responsibility: one to acknowledge...

#16945 - Parental Responsibilities And Rights - Children, Families & the State

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