Parenthood - Family law

1. FAMILY LAW
SEMINAR 4:
PARENTHOOD AND PARENTAL
RESPONSIBILITY
Professor Thérèse Callus
Module convenor
m.t.callus@reading.ac.uk
School of Law

3. LEARNING OBJECTIVES
This seminar will enable you to:
 Explain and understand how parents are recognised in law
and the differences between legal parenthood and parental
responsibility;
 Identify how common law and statute interact in the law on
parenthood;
 Critically analyse the relevant case law;
 Assess the current reform proposals on surrogacy;
 Apply this knowledge to practical problem scenarios

4. 4.1 How are parents recognised in law ? Do you think the law is in a satisfactory state?
Common law position:
o Genetic parentage: the provision of the gametes which produce the child
Presumptions based upon genetic default – mother is the one who gives birth (mater certa semper
est);
- husband is presumed father. If not, DNA testing can confirm who is the genetic (and therefore
legal) father
Legislative provisions:
o Legal parenthood: specific statutory provisions to vary from the genetic default
Human Fertilisation & Embryology Act 2008 – provides for parental status following assisted
conception at a licensed clinic (see table on next slide) :
- Agreed fatherhood and second female parent provisions
- Parental order (s54) in surrogacy
Adoption and Children Act 2002 BUT MAXIMUM OF TWO PARENTS

5. MOTHER FATHER LEGAL PARENT
Woman who gives birth
(biological/gestational mother)
Husband of mother (if married at birth) s.2(1) CA
1989 - rebuttable presumption
Genetic father (unless sperm donor in clinic)
Legal Father: Husband of artificial insemination
woman (unless no consent to treatment) - s.35
HFEA 2008
Man cohabiting with AI woman if both parties
consent - ss.36-7 HFEA 2008
Man named on birth certificate
s.4(1)(a) CA 1989 & Brierley v Brierley (1918) -
rebuttable presumption
Parental Order made s.54 HFEA 2008
(“intended parents” of surrogacy – could
be heterosexual couple, same-sex couple
or single applicant)
Surrogate who gives birth
(gestation)
s.33(1) HFEA 2008
Surrogate spouse/CP presumed to be
father/parent (rebuttable if shown not to have
consented); but if he consented, surrogate’s
husband will be the father under s35 HFE Act.
Wife/civil partner of woman undergoing
artificial insemination - s.42 HFEA 2008
“second parent” (not necessarily in a clinic
because formal relationship) unless shown
there was no consent.
Adoptive mother - s.67
Adoption & Children Act 2002
Adoptive father - s.67 ACA 2002 Female partner (not married/civil partner)
of woman undergoing artificial
insemination at licensed clinic if consents
- s.43-4 HFEA 2008 “second female
parent”

6. ARTIFICIAL INSEMINATION, CLINICS & CONSENT
(NB. "NORMAL SEX" - GENETIC FATHER IS LEGAL FATHER)
IF PARTNER DOES NOT CONSENT – NO ATTRIBUTION OF PARENTHOOD
Parental Relationship DIY Insemination (no clinic) Clinic with consent of
partner
Married heterosexual
couples
s.35 HFEA – husband is legal
father, unless shown he did not
consent; s.41 applies to sperm
donor – who is not to be
treated as father.
s.35 HFEA – husband is
legal father – s.41 applies to
sperm donor.
Unmarried heterosexual
couples
Genetic father is legal father;
HFE Act only applies if
married/CP OR licensed clinic
Ss.36/37 HFEA – partner is
legal father; s.41 applies to
sperm donor
Married/civil partnership
same-sex women
s.42 HFEA – partner is second
female parent; 2nd parent
overrides sperm donor (S.41)
s.42 HFEA – 2nd parent
overrides sperm donor
(S.41)
Unmarried same-sex
couples
Genetic father is legal father Ss.43-44 HFEA – 2nd
agreed parent overrides
sperm donor (S.41)
6

7. 2 PARENTS & NO MORE...?
o Think about situations such as:
o Re D (contact and parental responsibility: lesbian mothers and known fathers)
[2006] 1 FCR 556,
o Re B (role of biological father) [2007] EWHC 1952 (Fam),
o R v E & F (female parents: known father) [2010] EWHC 417 (Fam) ;
o A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285
o Can the interests and rights of all adults be reconciled with the
child’s welfare?
o Should an adult be able to ‘contract out’ of his legal status of parent?
o How relevant should the agreement between the parties be?
7

8. COMPARING PR APPLICATIONS –PRE HFE ACT 2008
8
Re D (contact and parental responsibility: lesbian mothers and
known fathers) [2006] 1 FCR 556 Black J
Lesbian partners A & C; Advertised for sperm donor B –
but common law default, B= legal father
A&C feared B would abuse PR.
PR granted to B but with undertakings restricting right
to exercise.
‘Mr B expressly recognises, Ms A and Ms C are her day
to day parents and he has no role in her day to day
care… He will, however, be kept informed of all major
decisions taken by Ms A and Ms C in relation to her. He
will thus be recognised as a parent by the grant of
parental responsibility but it will be a parent of a very
different sort — no less important, just very different.
What will be different for D if her father were to be
granted parental responsibility is his visibility… This will
affect peoples' awareness of the importance of D's
father and, in this sense, give him recognition and
some authority.’
Re B (role of biological father) [2007] EWHC 1952
(Fam) Hedley J
2 female civil partners
Approached brother (of non-carrying
mother) for sperm (=informal uncle).
3 agreed – child will be brought up as nuclear
family with 2 women not including brother.
At 18 mths – father wished to establish his role
as father – sought contact & PR.
Partners opposed PR & only agreed limited
contact.
No PR order (although fulfilled 3 conditions,
child's welfare overrode it)– 4x p/a contact

9. 9
R v E & F (female parents: known father) [2010] EWHC
417 (Fam) - Bennett J
Birth mother & female civil partner – conceived child
via fertility clinic treatment.
PR agreement s.4(1)(a)– civil partners had PR.
Biological father in gay relationship in USA – name
registered as father (no automatic PR as pre-2003
reforms).
Father issued applications for staying contact, PR &
shared residence.
No order on PR, dismissed shared residence, joint
residence for mother & civil partner, defined contact
for father.
‘The boy had two families, not four parents; his
nuclear family comprised the two women.
The father had a key role to play but was not on an
equal footing with them…If PR were granted to
Richard (father) it is likely that conflicts would arise.’
A v B & C (Lesbian Co-Parents; Role of Father) [2012]
EWCA Civ 285 – Thorpe LJ, Black LJ, Sir John Chadwick
Agreed child brought up in B & C's household as primary
caregivers, & biological father's role secondary.
A applied for contact (with view to staying contact).
Judge allowed contact – unlikely to get staying contact in
near future.
Appeal – ‘no general rule in family proceedings between
two female parents and an identified male parent that
the biological father was to be regarded as a secondary
parent or to have a limited relationship with the child;
that each case was fact-specific and the only principle
was the paramountcy of the child's welfare’.
B & C – lesbian couple; Agreement with A (homosexual
friend) to donate sperm.
Too definitive decision – remitted to Fam Div Judge for
consideration of all factors in welfare balance.

10. Intentional / contractual parenthood?
o Provisions in HFE Act 2008 enshrine intention (evidenced through
consent) as the decisive factor – so should a legal parent (either through
default genetic connection or by statutory provision) be able to contract
out of parenthood?
o Isn’t this whas a parental order allows a surrogate to do?(see 4.3 below)?
o What are the advantages/disadvantages?
- certainty/permanancy?
- agreement of all parents?
- enforcability/policing of any contract?
- relevance of continued insistence upon maximum of two parents?

13. Who is not a parent?
o Egg donor – s47 HFE Act 2008
o Sperm donor under statutory conditions – s41 HFE Act 2008
o Known sperm donor where the mother and her partner are married or in CP :
- Re G; Re Z
Known sperm donor for Civil Partnered female couple. S42 second female parent
applied to mother’s partner; sperm donor not a legal parent. Yet, granted leave to
apply for s8 CA 1989 order for contact with children.
By granting leave to apply for a s8 CA 1989 order, is the court circumventing the
policy of the HFE Act? Does it support arguments for recognising for than two
parents? Does it support a patriarchal view that a child needs a ‘father’? Or is it
merely a recognition of the child’s welfare in knowing/having contact with, their
genetic progenitors?

14. PARENTHOOD & PR EXAM PROBLEM QUESTION
Anisha and Bridget are civil partners. They want a baby and approach Cai,
a friend from college. To save money, they do not go via a clinic. Bridget
falls pregnant. Nine months later, a baby girl, Denver, is born. Cai visited
the baby in the hospital, and was surprised by how much he loved her and
wanted to play a proper part in her upbringing. He has made regular
short visits during the first few weeks, but now fears the women are trying
to shut him out. Who are Denver’s legal parents? Who has parental
responsibility? How would your answer differ if Bridget. Who is bisexual,
had been having an affair with Cai, so that Denver had in fact been
conceived through ‘normal’ intercourse?

15. Who are the legal parents?
Mother = Bridget (biological mother) – proved by parturition
Other Parent = Anisha (civil partner of mother at time of insemination - s.42 HFEA 2008
unless didn’t consent)
Genetic/Biological Father = Cai (but only 2 legal parents - A & B) - s.45 HFEA 2008 where
woman is treated as parent by ss.42-43, sperm donor is not legal parent (s41 HFEAct).
(NB. If A & B had not been civil partners/married then he would have retained the status
of legal father.Parallels with Re.G; Re. Z [2013] situation.
Who has PR?
 Bridget = automatic PR. Anisha = s.2(1A) Children Act 1989
 Cai = can apply for PR; s8 CAO - needs leave s.10 Children Act 1989, because not a
parent. For PR: Court considers degree of commitment, degree of attachment &
father’s reasons for applying - Re. H (Minors) [1991]

16. ALTERNATIVE SCENARIO
“NORMAL” INTERCOURSE - IS NOT ARTIFICIAL INSEMINATION, OR ‘PLACING IN
HER’ (MOTHER) OF GAMETES, SO HFEA DOES NOT APPLY.
16
Legal Parents:
• Bridget = Mother
(parturition)
• Cai = Father (default
common law recognises
genetic link)
Parental Responsibility
• PR - Bridget
• PR if Cai is named on birth
certificate s.4(1A) CA 1989 or by PR
agreement s.4(1)(b) CA 1989 or
Court order s.4(1)(c)
• PR - Anisha if s.4A CA 1989 as step-
parent in civil partnership with
biological parent; or by agreement
s.4A(1)(a) or Court order s.4A(1)(b).

17. Building Families Through Surrogacy, Law Commission, Consultation Paper, No. 244, October 2019

18. Imagine the following scenario:
Deb and Evan are married, create an embryo with their gametes at a licensed clinic and
ask Sara to carry the baby for them. Sara is married to Harry who agreed to the
arrangement. Just before the baby is born, Deb changes her mind and says she doesn’t
want the baby. Sara says she has to have the baby as she is the genetic mother. Harry
would rather he and Sara raise the baby as their own, but Evan says he is the legal father.
The baby was born last week. Who are the legal parents? Who has PR?
- Legal parents: birth mother, Sara and her husband by presumption, and by s.35 HFE Act
as he consented to the implantation.
- Evan – genetic father – could trump simple presumption of H’s status, but can it
override the consent of H resulting in statutory status of H?
- Deb – genetic connection, but ‘egg donor’ status – she is not the mother (s47 HFEAct)
Parental Responsibility: mother and her husband have automatic PR; E – can he apply for
PR? If so, would it be likley to be granted?

19. SURROGACY – CURRENT PARENTAL ORDERS
S54 (couples), s54A (single applicants) HFE Act 2008: parental orders
o Application within 6 months of birth
o Child’s home with applicants at time of application
o Either or both parents domiciled in UK
o Parents over 18 years old
o Unconditional agreement of birth mother and any other parent (eg
her husband)
o No money or other benefit paid (except for expenses reasonably
incurred)…
The law ‘may… be honoured more in the breach than in the
observance.’ (Law Commission 13th Programme of Reform, para
2.42).

20. The new pathway to
parenthood (1)
Building Families Through Surrogacy
Law Commission, Consultation Paper,
No. 244, October 2019

22. 4.4 Parental responsibility
o What is the importance of parental responsibility?
o How is parental responsibility acquired by different groups? Is there
unfair discrimination in the way PR is granted (differences depending on
whether the parents are married; or in applications for PR orders, or
depending on whether father is named on birth certificate?)? Or in the
way it can be removed?
o What is or should be the purpose of birth registration? (See A.Bainham,
What’s the point of birth registration? [2008] CFLQ 449).
o Do you agree with the outcome in Re D (A Child) (Termination of Parental
Responsibility) [2014] EWCA Civ 315?

23. 23
What is Parental Responsibility?
‘…parental responsibility can be an inaccessible concept at the
best of times, not infrequently difficult for lawyers to grasp
and often very challenging for those who are not lawyers.’
per Black J in Re D (contact and PR; lesbian mothers and
known fathers) [2006] 1 FCR 556
s.3(1) Children Act 1989:
‘…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’.

24. 24
PARENTAL RESPONSIBILITY
o Identifies who is legally responsible for decisions
concerning the upbringing and welfare of the child
o Automatic for mothers and some fathers
o May be agreed upon between a mother and
(unmarried) father
o Can be shared with a number of adults, through
court order
o Does not have to be exercised by the biological
‘parent’ (s4ZA CA 1989 second female parent under s43 HFE
Act assimilated to ‘unmarried father’)
o Parental responsibility - cedes to growing autonomy
of the child to take decisions for herself (Gillick)

25. o Elements of parental responsibility :
o Bringing up the child
o Protecting and maintaining the child
o Disciplining the child
o Determining child’s education / religion
o Consenting to child’s medical treatment
o Claiming child’s passport
o Naming the child
o Administering child’s property…
See Bromley’s Family Law, (10th ed.) p.377. 25

26. PARENTHOOD V PARENTAL RESPONSIBILITY OR FORM VS FUNCTION...AGAIN!
PARENTHOOD (FORM) PARENTAL RESPONSIBILITY (FUNCTION)
Maximum 2 people Unlimited numbers
Biological Fact/Formality (HFE Act;
Adoption Act)
Can be temporary or permanent
Status based (may also depend on
parents’ relationship status)
Reality of relationship
Duty to maintain child financially - not
automatically involved practically
Practical role - caring, consenting,
decision-making etc.
Relevant to marriage, intestacy,
nationality
No further legal consequences eg
succession, nationality

27. WHO HAS AUTOMATIC PR?
MOTHER FATHER SECOND PARENTS
s.2(1) & s.2(2)(a) Children
Act 1989 “legal mother”
If married to mother -
s.2(1) CA 1989
S.42-43 HFEA 2008 via
s.2(1A) CA 1989
Not married to mother - if
named on birth certificate
- s.4(1A) CA 1989

28. WHO CAN ACQUIRE PR?
MOTHER FATHER SECOND PARENTS LOCAL
AUTHORITY
SPECIAL
GUARDIAN
By adoption order
- s.67 Adoption &
Children Act 2002
By PR Agreement - s.4(1)(b)
CA 1989
s.4ZA CA 1989 - second
female parent via s.43
HFEA 2008
By Care Order -
s.33(3)(a) CA
1989
By Special
Guardianship
Order - s.
14C(1)(a) CA
1989
By Child Arrangements Order
(residence) - s.12(1) CA 1989
By Court Order (PRO) s.4(1)(c)
CA 1989 eg. if has Child
Arrangements Order (contact)
STEP PARENTS
By adoption order - s.67
Adoption & Children Act 2002
If parent is married to
step-parent by
agreement/ order - s.4A
CA 1989
Delegated PR - s.3(5) CA 1989: do what’s reasonable in the circumstances to safeguard & promote the child’s welfare
eg.babysitter, school, those “in loco parentis”

29. PR orders under s4 and s12 Children Act 1989:
o S12 CA 1989 – court must or may take into account making PR order depending on
which s8 Child Arrangement Orders are being made.
o S4 CA 1989 – factors the court will take into account:
o degree of commitment shown by father to child
o degree of attachment
o reasons for father’s application
Re H (minors)(Local authority: parental responsibility)(no.3) [1991] 1 FLR 214
But what is/should be the purpose of PR order?
‘What will be different for D if her father were to be granted parental
responsibility is his visibility: his involvement in decision making, his
presence at important events (doctor's appointments, school open evening
and events and other things that he becomes aware of). This will affect
peoples' awareness of the importance of D's father and, in this sense, give
him recognition and some authority.’
Re D (contact and PR; lesbian mothers and known fathers) [2006] 1 FCR 556 29

30. 4.3 REMOVAL OF PARENTAL RESPONSIBILITY
Do you agree with the outcome in Re D (A Child) (Termination of
Parental Responsibility) [2014] EWCA Civ 315?
o Father has PR by virtue of being named on birth certificate.
o Mother seeking to remove father's PR. Father wanted specific issue
order, mother to provide annual updates on child (no other s.8 orders)
o "The Court reiterated that as parental responsibility is a status relating
to the welfare of the child the paramountcy test is overarching; it is the
welfare of the child that creates a 'presumption' as to the existence or
continuance of parental responsibility, not the fact of the father's
parenthood." per Ryder LJ
30