Should Biological Parents Have Greater Rights And Responsibilities Notes

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...

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