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The English Law Concept of Being a Parent

Essay 2013 8 Pages

Law - Civil / Private / Family Law / Law of Succession

Excerpt

The notion of being a parent in a traditional family had not originally been a complicated issue. It is the development of society and scientific progress that has brought some degree of uncertainty to the area of family and child law. Firstly, it should be noted that under the law of England and Wales, it is birth that gives rise to parenthood[1] and “a child means every human being below the age of eighteen years...” [2] Traditional approach favoured biological mother and father since only they were able to conceive a baby.[3] However, some psychologists argue that a parent is a person who looks after the child on a day-to-day basis regardless of any blood relation,[4] whereas others claim that it is the society that determines what the role of a parent is.[5] The accepted academic approach is a division of parental aspects into: parentage, parenthood and parental responsibility . [6]

The question of parentage is concerned with the genetic relation and is set upon the conception therefore it cannot be changed afterwards. It seems to be accepted position that the knowledge of person’s biological origins, and thereby their identity, is very important for the healthy upbringing of the child. The Convention on the Rights of the Child states that “the child … shall have … as far as possible, the right to know and be cared for by his or her parents.”[7] Moreover, biological origin is relevant in terms of relations in the prohibited degree of consanguinity.[8] The European Court of Human Rights[9]held that a child had right to know [his or] her biological parenthood as part of her right to respect for private life under article 8”.[10] However, English Courts[11] have accepted this approach inasmuch as the truth would not harm the child’s welfare.[12] Accordingly, in some cases,[13] the Court refused to order blood tests as child’s welfare outweighed the right to know of the real father.[14] In terms of children born as a result of assisted reproduction, the Human Fertilisation and Embryology Authority is obliged to keep register of gamete donors[15] and disclose to a person over the age of 16[16]the information about whose gametes were used to produce them”.[17]

However, it is a major concern that in some cases revealing the truth about the biological origins might create social and psychological problems for the child[18] and the family as a whole.[19] It is also the treated couple and the actual donor that should be protected.[20] On the other hand, there is always a risk that the child may learn about his real origin from other source in which case it might have disastrous consequences for the child – parents relation.[21] It appears that the actual reasons for withholding the information serve people other than the child whose interest should be paramount.[22] Therefore, social parents have moral duty to disclose such information.[23] The only question remaining is when exactly the child should be told the truth about its origins.[24]

‘“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.’[25] The default position is that biological parents have parental responsibility.[26] The Children Act stipulates that “where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.”[27] Some authors argue that “by subsequently marrying the mother, the father … will automatically have parental responsibility” even though the Act does not expressly states so.[28] On the other hand, where a child’s father and mother were not married it is only the mother who has parental responsibility.[29] In order to acquire parental responsibility the father must either be registered on the birth certificate[30] or may apply to the Court for the relevant order.[31] The Court indicated that when making an order the child’s welfare should be the paramount consideration[32] and therefore the father must show the degree of commitment and attachment[33] in relation to the child.[34] The mere genetic link would be not enough.[35] It seems that in order to acquire parental responsibility through the Court order, the father must prove he is a good parent whereas mother enjoys the privilege automatically.[36] Alternatively, under the Act,[37] the father may conclude a parental responsibility agreement with the mother of the child.[38] This rout requires full cooperation from the mother who can effectively block the procedure. Accordingly, some authors argue that to maintain current legal position is hugely inadequate as it “does not satisfy current societal thinking, demographic and legal reality[39] and might be considered in breach of European Convention on Human Rights.[40] It could be argued that in order to mitigate the imbalance between the legal situation of mothers and fathers, the latter should be able acquire parental responsibility automatically.[41]

The concept of parenthood determines who is the parent in the eyes of law and as such possesses financial liabilities towards the child. The position of mother seems to be rather straightforward. “The woman who is carrying or has carried a child … is to be treated as the mother of the child” even if the “child [is] a result of the placing in her of an embryo or of sperm and eggs” of another woman[42] (this is also true for surrogacy[43] ). The Court[44] has pointed out that it is perhaps the case due to the requirement of certainty as well as special relationship between the birth mother and a child.[45] Parenthood can be both acquired[46] and terminated by an adoption or the Court order, though it cannot be disclaimed.[47]

On the other hand, the question of being a father appears to be much more convoluted. The default position is that genetic relation to a child makes a man the father. In cases of married man, there is a presumption of paternity[48] which will continue to apply even if a pregnant married woman divorces[49] or remarries before the birth of the child.[50] The presumption also applies to void marriages,[51] though not to the cohabitees.[52] Furthermore, the statute[53] presumes that the man’s name found on a birth certificate belongs to the father of the child, though if he remains unmarried, he must obtain either mother’s consent[54] or the Court order to register the baby.[55] Legal presumptions can be rebutted on the balance of the probabilities[56] either by genetic tests[57] or by showing evidence undermining the logical basis of the presumption.[58] Alternatively, the Court[59] has indicated that “a parental responsibility order[60] by consent could be regarded as evidence of paternity by the Child Support Agency[61] and some argue that a parental responsibility agreement could also be considered evidence thereof, though it is not conclusive.[62] The legal rules concerning parenthood in relation to fathers appear to be very complicated and barely understandable for laypeople.

In terms of assisted reproduction the Human Fertilisation and Embryology Act 2008 seems to clarify this area of law. Under the Act an unmarried man is to be “treated as the father of any child resulting from treatment provided to” woman if they have both consented[63] whereas husband “is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination”.[64] Moreover, in cases of civil partnership, the other party to the partnership “is to be treated as a parent of the child unless it is shown that she did not consent”.[65] The Act makes it clear that notwithstanding the default position that the genetic father is a legal father, sperm donors are considered to be exceptions[66] provided that the assisted reproduction is conducted by the licensed clinic[67] and according to the prescribed procedure consented to.[68] The law in relation to so called ‘alternative families’ using assisted reproduction methods appears to be fairly coherent at least when it comes to male fathers and partners. It remains unclear though on the question whether a female-to-male transsexual could be registered as a father (as opposed to a ‘female partner’).[69]

Being a parent consists of many aspects and therefore could be a challenge.[70] It seems that along with the social and scientific progress, the law struggles to cover all the possible models of family varying from traditional to ‘alternative’. The approach dividing parental facets into parentage, parental responsibility and parenthood[71] is undeniably useful.[72] However, there are still areas where the law requires either reform or clarification. The question of child’s right to know of its biological origins remains unsettled though it appears that such a right should be recognised.[73] Furthermore, the issue of different treatment of mothers and fathers in terms of parental responsibility raises doubts as to the potential discrimination thereby one could argue that the distinction should be abolished.[74] Finally, the law regarding parenthood in general seems not to meet the requirement of coherency as it remains an entanglement of the old-fashioned approaches[75] and modern concepts[76] rather than be based on one leading theme.

Bibliography

Textbooks

1. Bainham A. ‘ Children, the Modern Law (Family Law, Bristol 2005)
2. Carr A., Lowe N., White R. ‘ The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002)
3. Hale B., Pearl D., Cooke E.J., Bates P.D. ‘ The Family, Law and Society Cases and Materials ’ (Reed Elsevier (UK) Ltd, London 2002)
4. Herring J. ‘ Family Law’ (Pearson Education Limited, Harlow 2009)
5. Freeman M. ‘The Moral Status of Children, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997)

Legislation

1. Births and Deaths Registration Act 1953
2. Children Act 1989
3. Convention on the Rights of the Child 1989
4. European Convention on Human Rights
5. Family Law Reform Act 1969
6. Human Fertilisation and Embryology Act 2008
7. Legitimacy Act 1976
8. Surrogacy Arrangements Act 1985

Cases

1. Banbury Peerage Case (1811) 1 Sim & St 153, 57 ER 62
2. B v UK [2000] 1 FCR 289, [2000] 1 FLR 1, ECtHR
3. Gillick v West Norfolk and Wisbech Area Healthy Authority [1986] AC 112, [1985] 3 All ER 402 HL
4. Goodwin v United Kingdom [2002] 2 FLR 487
5. G v The Netherlands [1990] 16 EHRR 38
6. Leeds Teaching Hospital NHS Trust v A and others [2003] All ER (D) 374
7. Mikulic v Croatia [2002] 1 FCR 720
8. Re D (Care: Natural Parent Presumption) [1999] 1 FLR 134
9. Re D (Paternity) [2007] 2 F.L.R. 26
10. Re F (A Minor) (Blood Tests: Parental Rights) [1993] Fam 314
11. Re G (Residence: Same-sex partner) [2006] 1 FCR 436
12. Re H (A Minor) (Blood Tests: Parental Rights) [1996] 3 FCR 201
13. Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151
14. Re K (Specific Issue Order) [1999] 2 FLR 280
15. Re Overbury (deceased) [1954] Ch 122
16. Re RH (a minor) (parental responsibility) [1998] 2 FCR 89
17. R v Secretary of State for Social Security, ex p West [1999] 3 FCR 574, [1999] 1 FLR 1233
18. S v S; W v Official Solicitor - [1970] 3 All ER 107
19. U v W (Attorney General intervening) [1998] 1 FCR 526
20. X, Y and Z v The United Kingdom [1997] 24 EHRR 143

Journals

1. Beinham A. ‘Arguments about parentage’ C.L.J. 2008, 67(2), 322-351)
2. Moon R. M. ‘An examination of UK law as it pertains to the unmarried father: current legal thinking in an international context’ C.S.L.R. 2010, 6(1), 259-273

Websites

1. http://quizlet.com/24160858/reproductive-technology-flash-cards/

[accessed 08/12/13]

[...]


[1] Bainham A. ‘Children, the Modern Law (Family Law, Bristol 2005) at 86

[2] Convention on the Rights of the Child 1989, Article 1

[3] Johnson (1999) cited in Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 325

[4] Alternatively, from a child perspective a parent seems to be a person with whom he or she is emotionally bound regardless of any legal status.

[5] Goldstein, Solnit, Goldstein and Freud (1996: 19); Goody (1982) cited in Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 325

[6] Bainham (1999) cited in Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 326

[7] Convention on the Rights of the Child 1989, Article 7

[8] O’Donovan K. ‘ A right to know one’s Parentage?’ 2 International Journal of Law and Family 27, 29 (1988) cited in Freeman M. ‘The Moral Status of Children’, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997) at 189

[9] Mikulic v Croatia [2002] 1 FCR 720

[10] Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 376

[11] Re H (A Minor) (Blood Tests: Parental Rights) [1996] 3 FCR 201; S v S; W v Official Solicitor - [1970] 3 All ER 107

[12] op. cit. n 10

[13] Re F (A Minor) (Blood Tests: Parental Rights) [1993] Fam 314; Re K (Specific Issue Order) [1999] 2 FLR 280

[14] op. cit. n 10

[15] Human Fertilisation and Embryology Act 2008, s24(31)

[16] Human Fertilisation and Embryology Act 2008, s24(31ZA)

[17] Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 380

[18] The Artificial Family: A Consideration of Artificial Insemination by Donor (London: Allen and Unwin, 1981) cited in Freeman M. ‘The Moral Status of Children, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997) at 200-1

[19] Cook R., Golombok S., Bish A., Murray C. ‘Keeping Secrets: A Study of Parental Attitudes Toward Talking about Donor Insemination’, American Journal of Orthopsychiatry 65, 549 (1995) cited in Freeman M. ‘The Moral Status of Children, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997) at 200

[20] Politics and the Life Sciences 12(2) 1993 cited in Freeman M. ‘The Moral Status of Children’, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997) at 201

[21] Blyth E. ‘Assisted Reproduction: What’s in it for children?’ 1990 cited in Hale B., Pearl D., Cooke E.J., Bates P.D. ‘The Family, Law and Society Cases and Materials’ (Reed Elsevier (UK) Ltd, London 2002) at 539

[22] It was argued that that in fact there is no reasonable rationale behind the secrecy of donors. (‘Sharing Information about DI in the UK’, 12 (2) Politics and the Life Sciences 194 (1993) cited in Freeman M. ‘The Moral Status of Children, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997) at 199)

[23] Freeman M. ‘The Moral Status of Children, Essays on the Rights of the Child’ (Kluwer Law International, The Hague, 1997) at 204

[24] The Court indicates that it should be rather sooner than later, though it should not happen too soon either. (Re D (Paternity) [2007] 2 F.L.R. 26 cited in Beinham A. ‘Arguments about parentage’ C.L.J. 2008, 67(2), 322-351)

[25] Children Act 1989, s3(1) Parental responsibility neither gives rise to the inheritance matters nor does it oblige to maintain a child as those issues are linked with the concept of legal parenthood only. (Department of Health’s ‘Introduction to the Children Act 1998’ cited in Carr A., Lowe N., White R. ‘The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002) at 59)

[26] Although word ‘parental’ implies that the child is to be looked after by his or her parents, the Court admits that it is only the case where the care is exercised for the benefit of the child. (Gillick v West Norfolk and Wisbech Area Healthy Authority [1986] AC 112, [1985] 3 All ER 402 HL cited in Carr A., Lowe N., White R. ‘The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002) at 54). The blood-related parents has priority in terms of parental responsibility where in dispute with other potential candidates as there is assumption that the natural parents are capable of fulfilling their roles in relation to their child unless there is evidence to the contrary (Re D (Care: Natural Parent Presumption) [1999] 1 FLR 134 cited in Bainham A. ‘Children, the Modern Law (Family Law, Bristol 2005) at 130-1)

[27] Children Act 1989, s2(1)

[28] Carr A., Lowe N., White R. ‘The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002) at 71

[29] Children Act 1989, s2(2)(a)

[30] Children Act 1989, s4(1)(1A)

[31] Children Act 1989, s4(1)(c)

[32] Re RH (a minor) (parental responsibility) [1998] 2 FCR 89

[33] Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151

[34] Carr A., Lowe N., White R. ‘The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002) at 75-6

[35] G v The Netherlands [1990] 16 EHRR 38 cited in Moon R. M. ‘An examination of UK law as it pertains to the unmarried father: current legal thinking in an international context’ C.S.L.R. 2010, 6(1), 259-273

[36] It could be argued that the essence of ‘parental responsibility is to put the interests and welfare of children or future of children above one’s own needs, desires or well-being.’ (Carr A., Lowe N., White R. ‘The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002) at 70-1) If that is the case it is a right position to demand proof of commitment from the father before the recognition of the existence of parental responsibility. However, that would also mean that mother’s automatic entitlement is baseless thereby the distinction appears to be unjust.

[37] Children Act 1989, s4(1)(b)

[38] Interestingly, these three possible ways of acquiring parental responsibility are also applicable to the female partner of the mother who gave birth as a result of the assisted reproduction. (Children Act 1989, s4ZA)

[39] Moon R. M. ‘An examination of UK law as it pertains to the unmarried father: current legal thinking in an international context’ C.S.L.R. 2010, 6(1), 259-273

[40] In fact, the distinction between married and unmarried fathers was challenged before the European Court of Human Rights in the case of B v UK [2000] 1 FCR 289, [2000] 1 FLR 1, ECtHR on the grounds of discrimination (European Convention on Human Rights, art.14) in conjunction with the right to privacy and family (European Convention on Human Rights, art.8), though it turned out to be unsuccessful. (Carr A., Lowe N., White R. ‘The Children Act in Practice’ (Reed Elsevier (UK) Ltd, London 2002) at 70-1)

[41] The proposed reform of the duty of joint registration, if enacted, would (subject to certain exceptions) require both parents to register the baby and thereby partially mitigate the inequality between the position of the mother and father. (Joint Birth Registration: Promoting Parental Responsibility , Department for Work and Pensions, Cm. 7160 (June 2007) cited in Beinham A. ‘Arguments about parentage’ C.L.J. 2008, 67(2), 322-351)

[42] Human Fertilisation and Embryology Act 2008, s33(1)

[43] Surrogacy agreements are permitted but only on non-commercial basis (Surrogacy Arrangements Act 1985, s2) and remain not legally enforceable (Surrogacy Arrangements Act 1985, s1A).

[44] Re G (Residence: Same-sex partner) [2006] 1 FCR 436

[45] Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 328

[46] Ibid.

[47] Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 339

[48] Banbury Peerage Case (1811) 1 Sim & St 153, 57 ER 62

http://quizlet.com/24160858/reproductive-technology-flash-cards/

[49] Bainham A. ‘Children, the Modern Law (Family Law, Bristol 2005) at 130

[50] Re Overbury (deceased) [1954] Ch 122 cited in Bainham A. ‘Children, the Modern Law (Family Law, Bristol 2005) at 130

[51] Legitimacy Act 1976, s1

[52] op. cit. n 48

[53] Births and Deaths Registration Act 1953, s34(2)

[54] Births and Deaths Registration Act 1953, s10(1)(a)

[55] Bainham A. ‘Children, the Modern Law (Family Law, Bristol 2005) at 190-1

[56] Family Law Reform Act 1969, s26

[57] Family Law Reform Act 1969, s20

[58] Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 331

[59] R v Secretary of State for Social Security, ex p West [1999] 3 FCR 574, [1999] 1 FLR 1233

[60] Children Act 1989, s4

[61] op. cit. n 58

[62] Lord Chancellor Consultation Paper, Lord Chancellor’s Department (1998) cited in Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 330

[63] Human Fertilisation and Embryology Act 2008, s37

[64] Human Fertilisation and Embryology Act 2008, s35

[65] Human Fertilisation and Embryology Act 2008, s42

[66] Human Fertilisation and Embryology Act 2008, s41

[67] U v W (Attorney General intervening) [1998] 1 FCR 526 http://quizlet.com/24160858/reproductive-technology-flash-cards/

[68] Leeds Teaching Hospital NHS Trust v A and others [2003] All ER (D) 374

[69] In X, Y and Z v The United Kingdom [1997] 24 EHRR 143 the European Court of Human Rights indicated that the father must be a biological male in order to be eligible for registration on the birth certificate, however in Goodwin v United Kingdom [2002] 2 FLR 487 the same Court ruled that ‘refusal of English law to recognize a change of status for post-operative transsexuals’ is no longer discretional. The latter decision indicates that domestic law is required now to permit female-to-male transsexuals to be registered as fathers especially in the light of Children Act 1989, s4ZA which permits female partners to be a second parent. (Bainham A. ‘Children, the Modern Law (Family Law, Bristol 2005) at 191-2)

[70] op. cit. n 3-5

[71] op. cit. n 6

[72] An interesting example of all three aspects of legal approach to parents could be illustrated by the situation wherein the woman gives birth after having been fertilised by the donor’s sperm (parentage) and subsequently leaves her partner with whom she had decided to have a child (parenthood) and move in with another man (parental responsibility). (Herring J. ‘Family Law’ (Pearson Education Limited, Harlow 2009) at 326-7)

[73] op. cit. n 18-24

[74] op. cit. n 39-41

[75] op. cit. n 48-55

[76] op. cit. n 63-69

Details

Pages
8
Year
2013
ISBN (eBook)
9783668406001
File size
523 KB
Language
English
Catalog Number
v354398
Institution / College
University of Wales, Aberystwyth
Grade
65
Tags
english concept being parent

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Title: The English Law Concept of Being a Parent