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(4) Parental Responsibilities and Rights
Embryology Act 1990 (amended
HFE Act 2008)
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.
Meaning of "father"
- (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,
- (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 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
1 Section 1
Welfare of the child. 1989
(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.
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.
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.
2 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
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:
o (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?
3 --Man who wishes to prove he is father of the child must show:
o (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:
o 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:
o 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
- Who has parental responsibility?
o 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 order4
Who should get parental responsibility?
o (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?
o 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 that father has shown commitment to child, and one that reflects the reality that he is sharing day-to-day upbringing of child
What is the basis for granting parenthood?
- Significant discussion on what is at the heart of the concept of parenthood — four main views:
o (i) Genetic parenthood
(ii) Intent to be a parent
(iii) Earned parenthood (by commitment to and care of the child)
o (iv) Social parenthood (day-to-day caring)
o NOTE: Categories not necessarily incompatible
Callus: genetic link plus intent to produce a child should be used to allocate parenthood
Bainham: using a variety of understandings of 'parent' the law can recognise different aspects of parenthood — eg. possible for law to acknowledge that both genetic parents and social parents have role to play in child's life
5(i) Genetic Parentage
Claim that core notion of parenthood is genetic — two key arguments:
(i) Recognition of (importance of) genetic identity:
HOWEVER: Confuses knowing genetic origins with allocation of parenthood (ie. can give child right to know genetic origins without giving parenthood to biological father)
(ii) Recognition of genetic contribution:
Re G — Baroness Hale: Knowledge of genetic link important component of: love and commitment by both parent and wider family; knowing origins and heritage
HOWEVER: No evidence that children who live with non-biological parents suffer hardship
While no exact correlation between genetic parentage and legal parenthood, vast majority of genetic parents are parents in law
HOWEVER: If genetic parentage is heart of legal parenthood, could expect law to take stronger steps to determine genetic parenthood (ie.
require genetic testing)(ii) Intent
Claim that core notion of parenthood should be intent
While instances in practice in which intent crucial: man in context of assisted reproduction and adoption — problems in context of more common origin of parenthood: inter alia —
rate of unintended pregnancies (and limited role of father in decision regarding abortion, and reasons why women may not have abortion)
burden of parenthood falling on more women (more likely that man will successful argue he did not intend to be parent)
(iv) Social parenthood
Claim that law should recognise the day-to-day work of parenting
Herring: Parental status should be earned by the care and dedication to the child, something not shown simply by a biological link(v) Child welfare
Dwyer: Child's welfare should be key to allocation of parent — should not thrust parent-child relationship on child where adult presumptively unfit to parent — factors that illustrate that person who not be treated as parent unless they can show competence
HOWEVER: Danger of social engineering and impossibility of predicting who will be good parent
Same-sex couples and parenthood
- Legal response to same-sex couples who wish to produce and raise child reveal difficulties law is facing in using traditional concept of child with one mother and one father
Note: Under HFEA — women who gives birth is mother, but partner is 'other parent' — resistance to see child as having two mothers
- Baroness Hale: Re G: weight on fact that one woman was genetic and gestational mother — residence order in favour of genetic mother
Impression that lesbian parents can never be fully equal — genetic and/or gestational parent will have legal advantage — law seems to prevent same-sex couples from being equal parents
- Difficulties shown in cases where lesbian couple have asked man to provide sperm, and man subsequently sought to become involved in child's life:
o Leading case: A v B and C:
A was biological father and married to B — A was thus child's father and had parental responsibility — dispute focused on extent of contact — joint residence order for B and C (same-sex couple)
Emphasis that role of court not to give effect to intention of parties, but to promote welfare of child: While same-sex couple may have desired to create two parent lesbian nuclear family free from third parent, such desires "may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child they have created"
Herring: Twofold approach:
(i) Court keen to solidify parental role of same-sex couple in relation to child (ie. shared residence order)
(ii) Court seeking to maintain parental role of father (ie. acknowledged as father) and ensure meaningful role
HOWEVER: Two goals in conflict — lesbian couple may feel role as parents undermined by fact that third party is given role to interfere in the way they wish to raise child
Post-HFEA — Re G; Re Z: Potential importance of genetic and psychological parenthood not automatically extinguished by removal of status of legal parenthood of sperm donors
Important: Two reasons commonly given for maintaining role of father — "unconvincing":
(i) Claim that child needs male parental influence — unsupported by evidence
(ii) Claim that child needs to know genetic origin — does not require father being given particular role
Given weaknesses of arguments of giving sperm donors parental status or responsibility, might be better to recognise social reality — for these children, lesbian couple are the child's parents
- Argument: Abolish concepts of parents before the law
The complex sets of relationships within which children are raised require law to recognise that a variety of people may act towards children
in parental and quasi-parental way
Breakdown of sharp distinction between parents and non-parents — recognise broad range of adults that play important role in life of child — any adult with close beneficial relationship to a child should have legal rights and responsibilities to the child — recognise that different adults in child's life especially well placed to make different decisions
Cf. Brighouse and Swift: Children need particular kind of relationship with one or more (but not more) adults — children need parents (ie.
essential core to what they need is best delivered by parents)
Parents' and Children's Rights
'Parental responsibility': Children Act 1989 - section 3 - 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.'
- Note: First word used to describe parental responsibility: rights
(a) Wrong to say that parents do not have rights
(b) Need to balance notions of responsibilities and rights in parenthood
- Need to distinguish between:
o (a) rights that a parent has as a human being (human rights)
o (b) Rights that a parent may have as a parent (parental rights)
- Parental rights may be understood as:
o (i) Liberty rights (ie. States cannot prevent parent carrying out particular activity)
o (ii) Legal authority (ie. acts of parents are lawful)
o (iii) Claim rights (ie. State must enable parent to perform the activity)
Are parents' rights and responsibilities linked?
- Gillick - Lord Scarman: parents' rights exist only for purpose of discharging their duties to children — parental rights derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child(ie. any parental rights exist for purpose of promoting children's interests)
- CONTRAST: McCall Smith: not all parental rights exist for benefit of children
Parents have two kinds of parental rights: parent-centred (for benefit of parent) and child-centred (to enable them to carry out duties)
Example parent-centred: right to determine the religious upbringing of children
Parent-centred rights justified not because they positively promote the welfare of the chid, but because they cannot be shown to harm the child, but can benefit the parent
Supported by Bainham: Not reasonable to take the position that those who bear legal and moral burdens which society expects of a parent should be denied all recognition of their independent claims or interests
- Areas of parenting in which parents do not have discretion and areas where there are no State-approved standards:
o Baroness Hale
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