This is an extract of our Family Parental Responsibility document, which we sell as part of our Family Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Family Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Child Law L3 Parental Responsibility
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 This is obsolete nowadays,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 Child Law L3 Parental Responsibility
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
ᴥ Mother: woman who carries and gives birth to child -gestational land genetic component
ᴥ Father: Married or unmarried - depend on the status of mother Child Law L3 Parental Responsibility
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 sampleswhen 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 interestsonly 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 Child Law L3 Parental Responsibility
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)
o 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): human rights approach. Child's rights prevailed- even though there is clear evidence will disrupt child's life
Re H and A (children) (1997): order tests even if it would disrupt a child's settled life- man said will leave family if clarified not his child even he had brought up children and had close relationship, court still order tests
But the courts can only give direction for testing
What if parties refuse to comply?
Need two set of samples
If child or person with care and control of child refuse to allow testing - S 21(3) FLRA 1969
Courts can compel testing if it is in child's best interests
Possible 2 stage test of considering child's best interests
Courts will look at all circumstances to decide if it is in the child's best interest to compel the test despite objectionsunless extreme situations
Child's age and understanding, their reasons for refusing testing etc
Re D (Paternity) (2006): not in the child's best interest to force the issue at such a turbulent time in his life- need to have test but that time was not the best time, allow to do it later when the child is able to cope with the result Child Law L3 Parental Responsibility
If adult refuse to be tested: S23(1) FLRA 1969, courts can draw an adverse inference- court cannot compel adult to be tests, only adverse inference on the issue ie. Refuse to compel if claim not the father of the child, will see as the father of the child
Re A (A minor) (Paternity: Refusal of Blood Test)
Once the truth is established, child has the right to know
In the matter of F: court can order truth to be made known to child
ᴥ Only refer to reproductive treatment inside framework of HFEA (in licensed clinic in
UK), if outside even using reproductive technology ie. Private/ overseas will see as natural conception
ᴥ Governed by HFEA 1990 for those born before 6 April 2009
ᴥ Governed by HFEA 2008 for those born after 6 April 2009
ᴥ Evaluation of HFEA 2008:
Recognise lesbian co - mothers- traditionally two people and has to be one man and one woman (Can be one people)→ now can mother+ other mother/ second female parent- no need father but controversial (Men's right activist- men will become obsolete and redundant and remove from family life only need sperm)
Recognise dead father who has provided sperm- born after father's death
But no provision for gay fathers- no provision in law to have one father and other male parent, only can through surrogate outside HFEA- disadvantaged
Brought in provision for assisted reproduction to keep in step with technology
ᴥ HFEA 2008:
S33: mother is woman who is carrying or has carried the child- reproduces position in common law, gestational component given priority
Where S33 is satisfied, who is the other parent?
Under HFEA 2008, the other parent could be a father or a lesbian co-mother
S35: if M is married at the time of child's birth (to a man), then her husband will be the father, UNLESS he did NOT consent to the treatment(need to be proven with clear evidence) Presumption in eyes of law- need to comply with the counselling and treatment to be protected under HFEA, if not go to private and deemed to be natural- lengthy and not everyone can go through the process
Leeds Teaching Hospital v. A and Others: must consent to actual treatment received
M v. F and H ( Legal Paternity)(2013): just because husband does not take positive steps to stop treatment does NOT mean he actually consents- Court strict in consent, need positive actions and active, actual consent- sign HFEA
form on paper
S36: If M is NOT married, and underwent treatment at licensed clinic, using donor sperm, AND the agreed fatherhood conditions in S37 apply in relation to a man, then that man will be father. Also, such man must be alive at the time M was treated.- in order for the unmarried father to be recognised, Child Law L3 Parental Responsibility
need to comply with all the requirements (in each round of treatment)statutory
S37: agreed fatherhood conditions. Both parties consent, such consent has not been withdrawn or changed -mother agree man to be the father
Only if S36 is satisfied, then consider S37
S38: if baby was created using sperm of man who has died, then such man can be treated as father if he had, before death, consented for his sperm to be used and consented to being recognised as father. M must consent to him being recognised as well
S39: Man who has died but his sperm was NOT used in creating the child
(used donor sperm) can also be treated as father if married to M or if not married underwent treatment together with her and both parties consented to him being recognised as father
S42: if M is in a civil partnership or married to a woman, then such woman to be regarded as other parent UNLESS she did not consent (same as men)
S43: if M is not married or in civil partnership, and underwent treatment in a licensed clinic and agreed parenthood conditions(Second/Other female parent parenthood conditions) in S44 are met in relation to a woman, then such woman is taken to be the other parent
S44: both parties consent and such consent not withdrawn or changed
Only if S43 is met, then consider S44
S41: sperm donors not regarded as legal parents (Genetic proof not recognised)
S47: egg donors not regarded as legal parents
But children born from sperm and egg donors can be given information about donors
Can be given identifying information about donor conceived siblings and donors- must consent
Donors can also receive non identifying information about children conceived
If not go through HFEA, use sperm donor from unofficial/ friends/ private clinic, donor allowed to come and claim to be father, can apply to court and have right to have decision and contacts with the child
HFEA have rules and rigorous tests, they cannot donate over 8 times to prevent incestuous relationships therefore strictly regulated
Not natural nor IVF
Surrogacy with intention for commissioning parents for someone to carry child for themwomen steps in
Usually used in heterosexual couple when female have reproductive issues or gay couples
May or may not share genetic link with surrogate
Governed very loosely by Surrogacy Act 1985 (very outdated)
Buy the full version of these notes or essay plans and more in our Family Notes.