#17058 - Family Parental Responsibility - Family Law

Rights for children- adult work for their welfare?

• Parentage- genetic links, how this person is created, biological contribution

• Parenthood- can contribute parentage but not enjoy parenthood status of the child ie. Sperm donation/ Legal sperm donation Couple who received the reproductive technology, mother= women received reproductive technology, legal father= partner of the said woman

• Parental responsibilities- legal responsibilities, usually legal parenthood enjoy but can be separate ie. Unmarried fathers need to acquire the legal status of parental responsibilities, people who are not parents can acquire ie. Appointed as special guardian have legal status of parental responsibilities without being the parents ie. Someone could not take up such responsibilities due to drug addiction

• Who are a child’s parents?

• What are the legal consequences of parenthood? - need clarification on issues of the legal status

• Determining parenthood in natural and assisted conception (identification- because of reproductive technology nowadays)

Who is a parent?

• Several different approaches to determining parenthood

• Johnson (1999) identifies 4 components:

  1. Genetic component: 2 sets of chromosomes –inherited from mother and father, combination of their 2 sets identified by DNA (entirely accurate? Breakthrough technology for baby to born from 3 person DNA- for woman who have genetic disease passed on through maternity, now combine two eggs from woman+ healthy egg donor to make a healthy egg to prevent genetic disease passing on)

  2. Coital component: act of mating – sexual intercourse during the time and count the gestation period to determine parentage (ancient time method)

  3. Gestational component: exclusively female – talk about maternal parentage because in that time paternal parentage is hard to determine. This is obsolete nowadays, now can trace with certainty

  4. Post- natal component: social parenthood – parentage and parenthood is not only biologically having a child rather than the up-bringing of the child, true mark of parentage and parenthood, no need biological connection with child but taking care, social, giving education ,religion to the children- can be the wider family, but loses all value and meaning

• But these components can be carried out by different people?

• So who shall be regarded as parents?

• Re G (2006): Baroness Hale identifies 3 ways to be regarded as natural parent

  1. Genetic parenthood- DNA

  2. Gestational parenthood: “unique bond with the gestational mother”- ignore male, concept cuts through different culture and religion

  3. Social and psychological parenthood- donkey work of bringing up the child

Used 1 & 2 in the case, unique case as implication of judgement, need to show 1 & 2 if argue over parenthood with other person

Lesbian couple prior HEFA- using donor sperm inseminated and pregnant, but agreement is equal mothers to bring up (two children)- relationship broke down with two mothers, usually children stay with best able met welfare, in the case equally matched of two parties tie-breaking factor: genetic and gestational parenthood, not usually applicable in all case but need some distinction

• Key issue: which aspect of parenthood should take precedence in determination?

Why is legal parenthood important?

• Bainham (1999): most fundamental relationship between parent and child

• Parenthood is non alienable

• Parenthood determines several things: eg. Incestuous relationships, inheritance, citizenship

Legal parenthood vs. Parental Responsibility

• PR can be held by several persons ie. Relatives, local authority

• Parenthood can only be held by 2 individuals at any one time

How to determine a child’s legal parents?

• Inconsistent & ad-hoc approach by court

• Which aspect of parenthood should be given priority?

• Law has not always taken a consistent approach

• Historically, law insists on one man and one woman

• X, Y and Z v. UK: no violation of Art 8 to refuse to register female to male transsexual as father. Can still take on social parenthood Just because not recognising as father, does not affect family life, nothing stops from taking responsibilities, not needed to be registered can still call father

• Decision seems to indicate that genetic component is given priority

• Bainham: argues that genetic component should be given priority (adopted by Baroness Hale) only genetic can call parent legally, only thing can identified with certainty

• Biological truth should reign supreme

• It is genetics that make up the core of a human physical body- one thing can be trace is DNA, only aspect unchangeable

• Biological truth vs. “fiction” of social parenthood- will step into who should be parent and to what degree, muddy s different standard but no one can argue with DNA

• English Law currently has no clear priority

• Natural Conception: favour biological truth

• Assisted reproduction (official): pragmatic, somewhat policy based manner- sometimes genetic truth may not reign supreme

• Legal adoption will clear out all ties with biological parents- in eyes of law will be stranger, adopted parents will be legal parents in all aspects, can only seek contact if over-18, parents no duty to tell child they are adopted but local authority have to keep record of adoption register- real life usually adopt children who have some idea ie. child in care usually 6 years old

Determining Legal Parenthood

• Natural Conception

  • Mother: woman who carries and gives birth to child -gestational land genetic component

  • Father: Married or unmarried – depend on the status of mother

  • Married Father: common law presumption that husband of mother is child’s father – Ampthill Peerage Case – not presume woman commit adultery, rule of convenience

  • Presumption of Legitimacy But this presumption can be rebutted: S26 FLRA1969

  • But need some strong evidence – not rumours

  • Very detrimental to disrupt a child’s legitimate status- Presumption not always biological truth, will lead to social problem if started

  • Not necessarily committed to establishing biological truth

  • Easier to rebut today, less stigma of illegitimacy- now easier to proof and child do not need to live in stigma Court willingness, clarify and move on

  • Unmarried father: if registered on birth certificate, taken to be child’s father- no presumption, if agreed and allowed to register on birth certificate , law take presumption as he is father

  • Ex parte W (1999): man who has S4 Child Act 1989 Parental Responsibility order made in his favour also regarded to be father- even not on birth certificate and not married, if court PR order= father

  • What if there is dispute over paternity?

    • Disputes can apply to married and unmarried fathers

    • Law has already identified the father but someone come to challenge the title, even the said father can make application

    • S55A Family Law Act 1986: can make an application to court to determine parentage

    • S20 Family Law Reform Act 1969: court has the power to order scientific tests to determine parentage – can direct the taking of bodily samples- when will court use? What will motivate court to use such power?

    • S20 FLRA 1969 only states that court has the power to order the tests, but cannot apply for a S20 order on its own- not order, just power, usually inside application and when paternity issue arise then court will use such power

    • Court may exercise the S20 power only if the issue of parentage arises in other civil proceedings- only use is need to clarify to proceed application

    • Eg: if some makes a S55A FLA 1986 application, or if there is an application for S8 CA 1989 order with regards to a child and parentage becomes an issue.

    • What will courts consider before making such direction?- must be careful with the power, only use if in doubt or has a good case

      • Several possible factors can affect court’s decision

      • English Law has tended to favour the factor of child’s best interests- only exercise if in child’s best interest

    • But what constitutes child’s best interests?

      • Traditionally, courts feel that if child is in happy and settled family, then best interests have been served

        • No point disrupting child’s settled life- if child in happy settled family, knowing truth will only cause trouble= against child’s interest

        • Re F (A Minor) (Blood Test: Parental Rights)(1993): in this case interests of the child does NOT lie in discovering the abstract truth

      • But today this approach has changed

        • Ascertainment of the truth is held to be in child’s best interests

        • Use power because dispute has arisen, the best way is to discover the truth and move forward- short term pain

        • Don’t lie, let biological truth come out even family breaks out and let child move one instead of having secrets ie. Better to know when have disputes than knowing it when the child is 15 and need blood transfusion and know that man is not his father

        • Re H (A Minor) (Blood Test: Parental Rights) (1997)

          • interests of justice are best served in ascertainment of truth

          • “every child has the right to know the truth unless his welfare clearly justifies the cover up” need to be extreme and exceptional to hide the truth for the sake of the child

        • Lambeth London Borough v. S, C, V and J(2006): “right to establish their identity is not absolute in the sense that there is no absolute right of access to genetic information...may be controlled by the State, but for that control to be lawful i.e human rights compliant there has to be a mechanism that provides that any interference is only that which is lawful, necessary in a democratic society for the specified Art 8(2) purposes and proportionate

        • Re T (a Child) (DNA Test: Paternity) (2001):...