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Should Biological Parents Have Greater Rights And Responsibilities Notes

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Should biological parents have greater rights and responsibilities?
The three different types of parents

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Bainham: o Genetic Parentage - Those whose gametes are used to conceive the child o Legal Parenthood - Those the law recognises as the parents o Social Parents - Those who parent children and are responsible for their dayto-day care and needs If there is a dispute between those with genetic parentage and a social parent over residence, who wins?

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The social parent?
o 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

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

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

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

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the children will not distinguish between one woman and the other on the grounds of biological relationship.
? Hallet LJ (reluctantly agreeing)

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

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She is both a biological parent and a "psychological" parent. o I would attach greater significance perhaps than some to the biological link between the appellant and her children

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The biological parent?

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o Re G (Children)(Residence: Same Sex Partner) [2006]:
? Lord Nicholls

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This is not a dispute between two biological parents. The present unhappy dispute is between the children's mother and her former partner o As in all cases, the welfare of the children is the paramount consideration o 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.

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I decry any tendency to diminish the significance of this factor. o A child should not be removed from the primary care of his or her biological parents without compelling reason.
? Baroness Hale

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Parents can have a number of links to a child o One is genetic through having provided the gametes which produce the child o The second is gestational -the conceiving and bearing of the child, o The third is psychological or social
? this relationship develops through the child demanding and the parent providing for the child's needs,

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While CW is their psychological parent, CG is, as Hallett LJ pointed out, both their biological and their psychological parent. o In the overall welfare judgment, that must count for something in the vast majority of cases o 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 o 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

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Making a residence order for G was not an order properly open to the judge o The judge failed to recognise that there is a benefit in maintaining the status quo o 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

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