Please enable JavaScript.

Coggle requires JavaScript to display documents.

Parenthood, Parental Responsibility, and Private Law Disputes (3.1) -…

- - - - Bainham:
        
        Commitment to truth
        
        Individual autonomy
        
        Priority for the rights and interests of those primarily affected i.e. the child
    - - Legal parenthood can only be held by 2 individuals at a time
        
        It is a permanent, inalienable and has legal consequences throughout life and confers a core body of rights and responsibilities that result from the legal status of being a child or parent:
        
        Legal recognition of familial relationships
        
        Duty to financially maintain a child
        
        Entitlements on intestacy
        
        Citizenship rights
        
        Parental responsibility
        
        Confers standing to bring/defend proceeedings about a child
    - - At birth - Ampthill Peerage
        
        Via Adoption Proceedings, Adoption and Child Act 2002
        
        Via a Parental Order - HFEA 1998, HFEA 2008
- - - - Who is the legal father:
        
        Depends on consent, marital status and method of conception
        
        Married:
        
        pater est quen nuptiae demonstrant (the father is he whom the nuptials points out) presumption applies
        
        Presumption is rebuttable by evidence, proven on the balance of probabilities (S.26 Family Law Reform Act 1969)
        
        Unmarried:
        
        Via joint registration on the birth certificate (consent of both is required, as per S.10 Births and Deaths Registration Act 1953)
        
        Via a declaration of parentage (S.55A Family Law Act 1986)
        
        Disputed Paternity?
        
        Need to make an application to court for declaration of parentage (S.55A Family Law Act 1986)
        
        Must be made by a person with 'sufficient personal interest', e.g. a parent or alleged parent, or child themselves
        
        Under S.20 Family Law Reform Act 1969, the court can order DNA testing, but S.21 outlines that a person's consent is required
        
        Once declaration of paternity is obtained, the court forwards this to the General Registry Office, who re-register the birth (ss.14, ss.14A Birth and Deaths Registration Act 1953); or mother, biological father, 'wrong' father, or person with PR can apply to the Registrar General for re-registraition
  - - - TT (on the application of R) v Registrar General [2019]:
        
        Facts: C (a transgender man) gave birth to a child, could not be registered as the child' father or 'parent'. C is legally recogised as a male, confirmed by gender recognition certificate issued on April 2017. Subsquent to the GRC, his eggs were fertilised with donor sperm. He became pregnant and gave birth in 2018.
        
        He went to register the child's birth but the registrar refused to name him as the father/parent. As C gad given birth to the child; the registrar registered him as the mother
    - - Second male parent in ART:
        
        It is not possible for both parties in a male couple to be a child's parent at the point of birth (as it is with heterosexual or lesbian couples)
        
        A child can only have legal father at birth, but same-sex male couples can both become the legal parents by an adoption order, or in the case of surrogacy, a parental order
    - - Leeds Teaching Hospital NHS Trust v A [2003]:
        
        Mr & Mrs A and Mr & Mrs B both underwent fertility treatment at same clinic. Consented to use own gametes. Mrs A's eggs were fertilised with Mr B's sperm, resulting in embryo which went to full term. Mrs A gave birth to mixed race twins
        
        Mr B sought declaration of parentage/ Mrs A was legal mother having given birth to the twins
        
        Held: Per S.28(2) Mr A could not be recognised as father as he had given consent to using donor sperm, so common law rules would apply meaning Mr B was the legal father
        
        In the matter of the Human Fertilisation and Embryology Act 2008 (Case K) [2017]:
        
        Facts: Application brought by father under S.55A of the Family Law Act 1986 & ss.36-37 HFEA for a declaration of parentage of twins born to the couple using donated sperm. Couple had instigated treatment together, never withdrawn consent, intention that he would be the legal parent of any children born. Registrar had refused to register the man at the father because the necessary consent documents could not be produced (Reg = Form WP and Form PP, but couple had signed Form IC.
        
        Held: Declaration made by Munby P in favour of the couple, quashing the original birht certificate and allowing the children to be registered as the children of both the couple
- - - - Traditional = surrogate is artificially inseminated with the intended father's sperm. The surrogate's egg is used
        
        Gestational = surrogate's eggs are not used; intended mother's or donor's eggs are used. Sperm may be intended father's or donor sperm
        
        Who is the mother in the case of surrogacy?
        
        Person who gives birth is the legal mother, whether or not she is genetically related to the child; mater semper presumption applies in the case of surrogacy
        
        S.33(1) HFEA 2008: woman who carried child is the mother, regardless of genetic link
        
        S.47 HFEA 2008: any woman who donates eggs to another woman/couple will not be the legal mother, despite biological/genetic link
        
        In order for an intended mother to become the legal mother, a parental order needs to be awarded by the court; this extinguishes the surrogate's status as a legal parent (S.54 HFEA 2008)
        
        How can the intended parents become the legal parents in the case of surrogacy?
        
        Surrogacy arrangements are not elgally binding in England and Wales; contingent upon consent of surragate
        
        Intended parents can apply for a Parental Order (S.54-joint applicants, S54A-single applicants):
        
        must be applied for within 6 months time limit
        
        one of the applicants must have a genetic link with the child
        
        conception was not via intercourse
        
        arrangement must have been con-commercial
        
        must be over 18 and domiciled in the UK
        
        child's home must be with the applicants
        
        must have consent from the first legal parents
        
        Ab v CD and the Z Fertility Clinic [2013]:
        
        Facts: Mother of children born following donor insemination (in a licensed clinic) disputed that her female ex-partner was the children's second parent
        
        Issue: Was the ex-partner the second female parent?
        
        Judgement: Held that the treatment had taken place over 2 days, and the consent forms had only been signed on the 2nd day, thus they were not effective. Further, a series of failures at the clinic meant that the clinic had breached the conditions of its license. Cobb J held that the ex-partner was not the 2nd legal parent
  - - - When might adoption be used?
        
        Adoption by a non-parent
        
        Public (e.g. looked after child) or private law (e.g. surrogacy)
        
        Adoption by a step-parent
        
        Child must have lived with step-parent for at least 6 months prior to application