family - legal parenthood

Legal parenthood vs. parental responsibility

Legal parenthood - can only be held by 2 people, the child’s ‘father’ and ‘mother’. Is permanent, non-alienable, has legal consequences for an individual throughout their life, not just during childhood.

Parental responsibility - the legal authority to make decisions with respect to a child’s upbringing. Can be held by multiple people during the child’s minority.

Why does Andrew Bainham argue that legal parenthood is more important than parental responsibility?

1) The child’s core familial relationships flows from it, e.g. restrictions on marriage (incest); who the child’s grandparents, aunts, uncles, cousins, etc. are.

2) Entitlements on intestacy are determined by reference to LP

3) Child’s legal parents have the default right (unless overriding by court order) to make arrangements for disposing of a child’s body in the event of the child’s death

4) Citizenship rights under British Nationality Act 1981 flow from legal parenthood

5) Duty to maintain a child financially rests with legal parents

Legal parenthood is determined by reference to genetics - why Sclater, Bainham and Richards (1999) insist this will remain the case?

DNA testing techniques used to find paternity have developed, and have ‘supersede[d] marriage as the bedrock of “the family” at law (p.15).

Why does Bainham (1999) support conferring legal parenthood upon those with a genetic tie to the child?

1) Says that legal parenthood uniquely also links the child to a wider network of relationships within the family. The child would also lose these wider relationships if the law determined otherwise.

2) LP generally relates to fundamentals in the child’s life which go beyond the everyday decisions involved in raising them, e.g. financial liability for child support; the right to object to a change of the child’s surname and to removal of the child from the jurisdiction…

page 27.

What do Barton and Douglas (1995) argue?

They argue that the law has changed to accord precedence to intentional or social parenthood, esp. considering the introduction of the HFEA 2008 for determining legal parenthood in the context of assisted reproduction.

p. 51

How has the law already partially embraced intentional, rather than genetic, parenthood?

ACA 2002 - allows same-sex couples to adopt.

HFEA 1990/ HFEA 2008 - allows the creation of a child intended to have same-sex parents via surrogacy arrangement.

How is the legal mother determined in the context of natural reproduction?

The woman who gives birth to the child is the child’s legal mother (Ampthill Peerage).

What makes ‘a mother’ a mother as a matter of law, according to McFarlane P in R (McConnell)

McFarlane P states that the biological role of giving birth belongs to a mother, even if the person’s gender is male.

He says that acquiring the gender recognition certificate under the GRA 2004 does not change whether a person is the father or mother of the child.

What does Emily Jackson (2022) say about the use of the term ‘father’ and ‘mother’ in the law?

Says that McConnell case gives us room to question whether we really need to use these gendered terms.

Particularly in McConnell’s case, labelling the child’s social father as the legal mother ‘flies in the face of their actual family lives’ p. 523.

Argues that the legal institution of marriage has already been degendered - went from being between opposite-sex couples to being between same-sex couples.

What is the presumption of legitimacy (‘pater est presumption’) which helps determine paternity?

The common law presumes that the mother’s husband or civil partner is the child’s genetic father so is the legal parent.

This applies if the man was in a formalised relationship with the mother either at date of conception or at the date of birth.

Limit: only applies if there is no challenge to the paternity of the mother’s spouse. If contested, the court will usually order testing to determine the issue so presumption will no longer work.

How is paternity determined where the alleged father is not in a formalised relationship with the mother? Prima facie evidence

Has he been registered on the child’s birth certificate as the father?

This will be good prima facie evidence; it is illegal to wilfully enter incorrect information. In most cases (89% of births) both parents jointly register the birth.

Limits to effectiveness of registration for man not in formalised relationship with child’s mother

Only the child’s mother is required by law to register the child. So, registration of the father requires a mutual agreement with mother, or producing an appropriate court order after the paternity has been determined.