Legal parenthood Flashcards
(7 cards)
Re G (Children) (Residence: Same-Sex Partner) [2006]
Baroness Hale talked about how a ‘natural parent’ of a child could be determined:
* genetic parenthood –
* gestational parenthood –
* social and psychological parenthood –
“To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person’s family, but it does not necessarily tell us much about the importance of that person to the child’s welfare” Baroness Hale in Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43.
Ampthill Peerage Case [1977] AC 547 at 577.
Where a child is conceived naturally, the woman who carries the child and gives birth to him/her is both the genetic and legal mother of the child
Banbury Peerage Case (1811
f a married woman gives birth, it is presumed that her husband is the father of the child
R v SS for Social Security, ex parte West
c. Having a parental responsibility agreement may be prima facie evidence of paternity (as suggested by the Lord Chancellor’s Consultation Paper (1998). The case of R v SS for Social Security, ex parte West [1999] 1 FLR 1233 also suggests that this can be evidence of paternity.
Re G (Human Fertilisation and Embryology Act 2008) [2016]
The law presumes that the second parent has consented unless there is evidence to the contrary:
Certain criteria must be satisfied before a parental order will be granted:
a) The application for a parental order must be made within 6 months of the child’s birth – s.54(3) & s.54A(2) HFEA 2008.
* This used to be quite strictly enforced. For example, in JP v LP and Others (Surrogacy Arrangement: Wardship) [2014] EWHC 595 (Fam) the court held that parental orders were not available if made outside this time limit.
* However, courts have shown a willingness to be more flexible now. In Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam) Munby P allowed an application made 2 years and 2 months after the child’s birth.
* The approach in Re X has been followed in a host of other cases: AB v CD (Surrogacy – Time Limit and Consent) [2015] EWFC 12 (application made 2 ½ years after birth); A and Another v C and Another [2016] EWFC 42 (parental order granted in respect of children aged 13 and 12)
* In all of these cases the courts considered the public policy and decided that nobody would be prejudiced if the application for parental order was allowed to proceed. Conversely, if the parental orders were not granted, the children were likely to be disadvantaged in not being able to secure their legal relationship with the people who were caring for them.
b) At the time of making the application, and of making the order, the child’s home must be with the applicants – s.54(4)(a) & s.54A(3)(a) HFEA 2008
* The child must be living with the applicants, but does not have to be in the UK
* Where the parents have separated since the child was born, it will be enough to show that the child was living with at least one of them, and for the other party to show that there is contact with the child – see Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam) and Re A and B (No. 2) (Parental Order) [2015] EWHC 2080 (Fam)
c) Either or both of the applicants must be domiciled in the UK, Channel Islands or the Isle of Man - s.54(4)(b) & s.54A(3)(b) HFEA 2008
d) All applicants for a parental order must have attained the age of 18 - s.54(5) & s.54A(4) HFEA 2008
e) The court must be satisfied that the woman who carried the child, and any other parent of the child (who is not one of the applicants) “have freely and with full understanding of what is involved, agreed unconditionally to the making of the order” - s.54(6) & s.54A(5) HFEA 2008
f) The court must be satisfied that no money or other benefit (other than reasonable expenses) has been exchanged, either for the surrogacy or for the child to be handed over to the applicant(s), except if authorised by the court - s.54(7) & s.54A(6) HFEA 2008
* The rationale for this is to ensure that: money is not paid for children; commercial surrogacy is not used to circumvent childcare laws and place children in unsuitable arrangements, and that money is not used to overbear the will of a surrogate: per Hedley J in Re S (Parental Order) [2009] EWHC 2977
* The court will therefore ask itself 3 questions: (1) was the sum paid disproportionate to reasonable expenses? (2) were the applicants acting in good faith and without “moral taint” in their dealings with the surrogate mother?: (3) Were the applicants party to any attempt to defraud the authorities? – X (Children) (Parental Order: Foreign Surrogacy) [2008] EWHC 3030 (Fam)
