#1867 - Wider Parenthood Issues - Family Law

Wider Parenthood Issues

What is 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 seems based on intention, but in a negative way in that, unless the guardian expressly disclaims the guardianship, they will be a guardian

      • Adoption is intent based. An adoption order is made only after a person volunteers to be an adoptive parent.

  • Problems

    • When a couple has intercourse, would be simplistic to say they intend to be parents

      • Father will have very limited role in whether M has abortion or not

      • Fact that M doesn’t abort doesn’t mean that M or F intend to be parents – may be religious/moral reasons

      • Also, if using contraceptives, then a presumption of intent flies in the face of the facts

    • A neighbour could not see that Y was pregnant and intend to be a parent – would not be recognised in law

    • Intent is uncertain – difficult to prove for routine and frequent things like childbirth

      • Might also hide certain policies behind it – e.g. not allow drug addict to have “intent” to be a parent b/c not capable of being an effective one

      • Focusing on intent more likely to burden the woman b/c easier to prove that man did not intend to be parent

  • Good points

    • Might allow same-sex to be easily considered parents – they intend to have child, therefore are parents.

    • Similarly, useful where competing claims of biology – one from the genetic mother and one from the gestational surrogate

      • Intent could play as the trump card – but for intent of commissioning parents, child not born.

• Earned parenthood?

  • Mother has earnt it through pregnancy and child birth

  • F must prove and earn it –

    • While good test for parental responsibility, genetic father could still be considered father despite having done nothing to earn it.

• Social parenthood and child welfare

  • We could get away from genetics and abstract notions of intent and actually deal with the realities of child psychology

    • For children, the person who provides their constant care and with whom they have an emotional relationship is who is most important

• All of the above

  • Bainham: The four need not be incompatible. By using a variety of understandings of “parent”, the law can recognise different aspects of parenthood

    • E.g. it is then possible for the law to acknowledge that both the genetic parent and the social parent have a role to play in a child’s life

Is there a right to know one’s genetic parentage?

• What could such a right entail?

  • It could involve one of three things:

    • 1. A right to know some non-identifying information about genetic parents

    • 2. A right to be told the names of genetic parents

    • 3. A right to meet one’s genetic parents

  • There rights could arise from an early age, or when the child reaches the age of majority

    • It should be borne in mind that there might be a right not to know about your genetic parents

    • Or a right to privacy in certain cases for parents not to be identified

    • Or the rights of social parents not to have an unwanted revelation about genetic heritage which might amount to interference of their family life

• Does the law recognise the right to know one’s genetic parentage?

  • There is no general right to know, as we don’t test children on birth, but since non-resident parents are likely to be liable to pay child support

    • they may wish to deny parentage and get DNA tests as a way of verifying the claims

  • Children born as a result of sexual intercourse

    • Not a free standing right

      • A child can discover from their birth certificate who are registered as his or her parents

        • Once they are 18, a child can request a copy of the certificate

      • And a child might identify from their mother who the CSA are chasing to pay child support

        • But the child has no right to be told by the CSA who the genetic father is (Re C (A Minor)(Child Support Agency: Disclosure))

      • A father cannot simply request paternity owing to curiosity – it must be attached to some relevant application (e.g. contact, residence)

        • However, sometimes there’s no need to pursue such tests (e.g. if child has bond with parent, genetic testing not decisive for contact disputes)

    • When should tests be ordered?

      • In ordering tests, the child’s welfare is not the paramount consideration. The child’s upbringing is not in dispute, so no need to use s.1

      • A right of child to know? Re H (A Minor)(Parental Blood Tests):

        • Ward LJ:

          • Every child has the right to know the truth unless his welfare clearly justifies a cover up

            • This is seen by Art 7 of UN Convention on Right of Child – right to care by parents so far as possible

          • Relationship with F unlikely to be affected here by revelation, and child likely to find out about the doubts anyway b/c of older brothers

            • Better to solve now rather than later.

      • Mikulic v Croatia

        • ECtHR:

          • Knowing biological parentage is right of child as part of Art 8

            • State must put in place procedures which would protect that right

        • Herring: Court did not say that F had right to establish it.

    • Why might we not want to order a test?

      • Re F (A Minor)(Blood Test: Parental Rights): W became pregnant while she was having “relations” with H and another man, X (separately, not together!) After the affair, she reconciled with H and they raised the child together. X applied for parental responsibility

        • CoA

          • Welfare of child depends on stability of the family unit, which includes H as W’s husband

            • If tests ordered, evidence that will damage H and W’s relationship

            • Advantages to the child of blood tests are minimal compared w/ benefits of secure family upbringing

      • Re K (Specific Issue Order)

        • Hyam J

          • Child’s right to know the identity of father could be outweighed by the child’s welfare

            • W will go psycho if child finds out about F, and child will suffer in the turmoil – therefore no tests ordered.

      • J v C

      • Re D (Paternity)

    • Tests and consent, and adverse inferences

      • S.21 FLA 1969 only permits the court to direct tests – it cannot force and adult to take them

        • S.21(3)(b)Although it can make a child take one if person with care and control consents or in best interests of child

      • S.23(1): BUT refusal to take test, then the court will draw inferences.

        • If a man is seeking to show he is the father, but refuses to be tested, it will be presumed he is not the father

          • If the mother refuses to consent, it will be presumed that the man is the father

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