Summary
Summary Family - Children FULL NOTES
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- Family Law
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- University Of Law (ULaw)
Family - Children FULL NOTES
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Parentage and Parental ResponsibilityLet’s begin by thinking about the family.
Q: Is there a normal or natural environment in which to raise children?
Q: Is it normal or natural for children to be raised by one mother and one father?
Q: Is it normal or natural for children to be raised by a ‘blended family’? A blended family can occur,
for example, where a mother and father get married or cohabit, but they bring children to the
marriage/cohabitation. The family is made up of the mother and the father but there is no genetic
link between the husband’s children and the wife (or the wife’s children and the husband).
Being brought up by parents with no biological link
The rise in divorce and remarriage has meant a rise in blended families and this has had a knock on
effect on classifying those who look after children.
The law distinguishes between being a parent and those with parental responsibility –
Can be a parent without having parental responsibility
There is also a distinction between someone who is a parent ‘by being’ and someone who is a parent
‘by doing’. Unhelpfully, or not, the word ‘parent’ is not defined in the Children Act 1989.
By doing:
Stepparent – look after the child on a daily basis
Genetic mother + stepfather = day to day upbringing
But genetic father = doesn’t do anything
∴ could be conflict as to what their roles and rights are
Next, we are going to consider ‘Who are a child’s parents?’
In some cases this is straightforward, but problems can arise in the following situations.
(a) the mother’s husband is not the father of the child (genetic mother + stepfather)
(b) children born through assisted reproduction
- those providing the genetic material?
- the woman who carried the baby?
- the people who intend to bring the child up?
* sometimes mistakes are made (medical staff mix up the genetic material)
(c) adoption – biological parents or adoptive parents?
(d) children taken into care
Why is it important to define who the parents are?
E.g. a right to apply for a s 8 order (covered later in the module) = allowed to apply for certain
orders
Attached to the word parent are certain rights and responsibilities
If you are a parent, it allows you in law certain rights and responsibilities
, Who is the mother?
The mother is always the woman who gives birth, this is the case even if, as in the case of
surrogacy, there is no genetic link between the mother and the child.
Gestational link
See s 33(1) Human Fertilisation and Embryology Act 2008
What is the reasoning behind this rule?
pain and effort of childbirth
provides certainty (simpler to identify the mother as the person who gave birth)
encourages egg donation
Who is the father?
The law is more complex.
A man wishing to prove he is the father of a child must show:
(a) that he is the genetic father
(b) that one of the presumptions of paternity apply and they have not been
rebutted (see slide 7)
(c) that he is the father by virtue of one of the statutory provisions
governing assisted reproduction
i.e. there is a notice that states he consents to being treated as the
father of any child resulting from assisted reproduction
(d) that an adoption or parental order has been made in his favour (more on these later)
The starting point is that the father is the person who fertilised the egg.
The Legal Presumptions of Fatherhood – presumption that you are the father
1. The man married to the mother at the time of the child’s birth
(note: excludes unmarried cohabitants, same-sex marriages or CPs)
Consider:
(a) conception before marriage but birth after marriage
- presumption still applies -married to the mother of the child
, (b) conception during marriage but birth after divorce
- presumption still applies
(c) conception in one marriage and birth in another
2. The man named on the birth certificate
Married – either one can register
Unmarried – only mother can register
3. The man living with the mother at the time of conception
Q: Why do we have presumptions?
advancements in medical treatment/testing has meant that these presumptions can be rebutted
more easily e.g. DNA testing.
In the absence of DNA testing, these presumptions still exist
….but presumptions are only presumptions – see next slide
s 26 Family Law Reform Act 1969 states
i.e. the legal presumption of paternity can be rebutted on the balance of probabilities.
1. By court order
ask the court for DNA testing (if mother is reluctant/doesn’t want it)
2. By factual evidence (e.g. was working abroad when conception took place)
Establishing parentage through the courts
Re T (Paternity: Ordering Blood Tests) [2001] concerned whether a child had the right to know their
genetic origins.
The applicant had a relationship with his friend’s wife.
The wife fell pregnant and the applicant believed and wanted to prove he was the father.
The husband and wife objected.
It was held that the child had a right to know their genetic origins. (it was better for the child to
know)
A similar approach was taken in Re H and A [2002] where it was said..
, Thorpe LJ:
‘first that the interests of justice are best served by the ascertainment of the truth and second that
the court should be furnished with the best available science and not confined to such unsatisfactory
alternatives as presumptions and inferences’
should be relying on DNA testing and not presumptions
Can parenthood be lost?
Yes.
(a) adoption order
- no longer the mother and father – lose that right in law
- no longer the legal parents = can’t apply for certain orders
(b) parental order (used in cases of surrogacy)
s 54 Human Fertilisation and Embryology Act 2008
Baroness Hale in Re G [2006] identified 3 key elements of parenthood
i.e. three ways in which a person can become or might be a parent of a child.
(1) Genetic Parenthood (genetic material used to create the child)
(2) Gestational Parenthood (woman who carries the child but has no genetic links– surrogacy)
(3) Social/Psychological Parenthood
- step parents
- parent who carries out day to day upbringing
- most important for child’s development = most impact on the child
- should a genetic absent parent have more rights than a social parent?
‘Of course, in the great majority of cases, the natural mother combines all three. She is the genetic,
gestational and psychological parent. Her contribution to the welfare of the child is unique. The
natural father combines genetic and psychological parenthood. His contribution is also unique… But
there are also parents who are neither genetic nor gestational, but who have become the
psychological parents of the child and thus have an important contribution to make to their welfare.’
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