#1850 - Should Biological Parents Have Greater Rights And Responsibilities - Family Law

Should biological parents have greater rights and responsibilities?

The three different types of parents

• Bainham:

  • Genetic Parentage – Those whose gametes are used to conceive the child

  • Legal Parenthood – Those the law recognises as the parents

  • Social Parents – Those who parent children and are responsible for their day-to-day care and needs

If there is a dispute between those with genetic parentage and a social parent over residence, who wins?

• The social parent?

  • Re G (Children)(Residence: Same Sex Partner) [2006]: G and W had cohabited in a same sex relationship, during which G conceived two children following anonymous donor insemination. Following the couple's separation the court imposed a condition preventing G, as per her stated intention, from relocating to Cornwall with the children and her new civil partner (M). W was granted a joint residence order. Shortly thereafter G, in breach of the court order and without W's knowledge, relocated the children overnight to Cornwall.

    • Thorpe LJ

      • The presumption of natural parentage is not correct - The question is: who is the natural parent?

        • All the judges spoke of the biological parent as the natural parent,

          • but in the eyes of the child the natural parent may be a non-biological parent who,

            • by virtue of long settled care, has become the child's psychological parent.

            • That consideration is obviously pertinent to any resolution of the competing claims of same sex parents.

        • As in the present case the family may be created by mutual agreement and with much careful planning.

          • Where, as here, the care of the newborn, and then the developing baby, is broadly shared

            • the children will not distinguish between one woman and the other on the grounds of biological relationship.

    • Hallet LJ (reluctantly agreeing)

      • For the reasons given by Thorpe LJ, I too agree that this appeal must be dismissed. I do so with a degree of hesitation.

        • I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent

          • who has been their primary carer for most of their young lives and in whose care they appear to be happy and thriving.

      • She is both a biological parent and a “psychological” parent.

        • I would attach greater significance perhaps than some to the biological link between the appellant and her children

• The biological parent?

  • Re G (Children)(Residence: Same Sex Partner) [2006]:

    • Lord Nicholls

      • This is not a dispute between two biological parents. The present unhappy dispute is between the children's mother and her former partner

        • As in all cases, the welfare of the children is the paramount consideration

        • In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent

          • can be expected to be in the child's best interests, both in the short term and in the longer term.

      • I decry any tendency to diminish the significance of this factor.

        • A child should not be removed from the primary care of his or her biological parents without compelling reason.

    • Baroness Hale

      • Parents can have a number of links to a child

        • One is genetic through having provided the gametes which produce the child

        • The second is gestational –the conceiving and bearing of the child,

        • The third is psychological or social

          • this relationship develops through the child demanding and the parent providing for the child's needs,

      • While CW is their psychological parent, CG is, as Hallett LJ pointed out, both their biological and their psychological parent.

        • In the overall welfare judgment, that must count for something in the vast majority of cases

        • The fact that CG is the natural mother of these children in every sense of that term, while raising no presumption,

          • is undoubtedly an important and significant factor in determining what will be best for them now and in the future.

• Relatives and residence orders

  • Re R (Transfer of Residence Order) B, by way of a residence order, was given to the care of his paternal grandparents having previously lived with M. M appealed.

    • Wall LJ

      • Making a residence order for G was not an order properly open to the judge

        • The judge failed to recognise that there is a benefit in maintaining the status quo

        • And that it is a fundamental proposition that children have a right to be brought up by their biological parents

          • unless welfare positively demands the replacement of that right

      • The judge lost sight of the fact that removing him from M deprived B the chance of family life with his half brother

        • By moving B and completely decreasing the contact time he would get with M and his half brother,

          • the judge also failed to show why such a radical change was justified.

  • Re B (A Child) (Residence – Second Appeal) [2009]: B was born in 2005 and, since neither parent was able to care for him, he was placed with his maternal grandmother, G, who became his primary carer. In 2006 she obtained a residence order in respect of B. F, who was now married to another woman and had a child of that marriage, made his own application for a residence order so that B could live with his family. The judge sided with F.

    • Lord Kerr JSC

      • While Lord Nicholls decried any attempt to diminish the principle that the child’s welfare is generally best served by being with the biological parent

        • it is important at the outset to recognise that Lord Nicholls's comment is set firmly in the context of the child's welfare.

      • All Lord Nicholls was saying was that common experience shows that, in general, children tend to thrive when brought up by parents to whom they have been born

        • Therefore, although one should keep in mind the common experience to which Lord Nicholls was referring,

          • one must not be slow to recognise those cases where that common experience does not provide a reliable guide

      • Child welfare is the paramount consideration.

        • It is only as a contributor to the child's welfare that parenthood assumes any significance.

        • Harry has lived virtually all of his young life with his grandmother. He has naturally formed a strong bond with her.

          • There is reason to apprehend that, if that bond is broken, his current stability will be threatened

What should be the basis for granting parenthood?

• Genetic Parentage

  • It could be claimed that the core notion of parenthood is genetic parenthood.

    • However, it is clear that there is not an exact correlation between genetic parentage and legal parenthood

      • The circumstances may mean that someone else does the job of the biological parent

  • The exceptions

    • But, there are only four times where the legal father will not be the genetic father:

      • 1. A husband is presumed to be the father of his wife’s child –

        • if the biological father does not object, the presumption is that H will be treated as the father

      • 2. In cases of AID treatment where the husband is the father under s.28(2) or the partner is the father under s.28(3) of HEFA 1990,

        • the child’s legal father will not be the genetic father

      • 3. An adopted father will be the father in the eyes of the law, even if he is not the genetic father

      • 4. Where the father has the benefit of a parental order, he will be the legal father but may not be the genetic father

    • However, all the above circumstances are quite rare

      • The vast majority of genetic parents are parents in law, although not all genetic fathers are awarded parental responsibility

        • However, it is odd that if genetics are the heart of legal parenthood, we do not require routine genetic paternity testing at birth

        • Instead we are happy to use presumptions of law – despite some claims that 30% of “fathers” are unaware they are not the genetic father of their wife’s children.

  • Why should genetics be considered the best?

    • Genetic Identity

      • Our genetic parents play a crucial role in our self identity – as shown by how it is often that adopted children later in life seek to trace their genetic parents

        • To recognise genetic parenthood acknowledges the importance of the child of the genetic link,

          • and recognises the importance many parents place on genetic links to their children.

    • Genetic Contribution

      • Genetic link is important b/c the child has been born out of the genetic contribution of the parents

        • As the child’s being results from the contribution of the two genetic parents, this contribution must be recognised.

    • Re G (Children)(Residence: Same Sex Partner)

      • Baroness Hale

        • For the parent, perhaps particularly for a father, the knowledge that this is “his” child can bring a very special sense of love for and commitment to that child

          • For the child, he reaps the benefit not only of that love and commitment,

            • but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up.

        • The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family,

          • perhaps especially grandparents, from which the child has so much to gain

• Intent

  • Should the law place less emphasis on genetic parentage and focus on intent?

    • Baker: A man is a father if he has struck a bargain with the gestational mother to take on that role

    • Clearly some circumstances where intent is crucial

      • In assisted reproduction, a man jointly receiving treatment with a woman is the father, even if no genetic link

      • A sperm donor can waive his parental status by going through the proper channels

      • Guardianship...