Chapter 9 Children and Parents Flashcards
A father, having failed in his application for a parental order because he was a “single person” and therefore excluded by the legislation, sought a declaration in accordance with s4 HRA 1998 that ss54(1) and 54(2) HFEA 2008 were incompatible with his and his son’s rights under Art 8 and/or Art 14 ECHR. The Secretary of State conceded that the discrimination was no longer justified and the judge granted the certificate, but made no comment as to how the discrimination should be remedied, leaving this to the government. This discriminatory position has now been changed by amending s54 HFEA 2008 by way of the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018.
Re Z (a child) (no.2) (2016)
The applicants, Mr and Mrs A, had entered into surrogacy agreements in India and 2 children were born to two surrogate mothers as a result. Mr A provided the sperm and the egg was from an anonymous donor. The surrogacy contract provided for a payment of the equivalent of £27,000. The court was asked to consider whether the payment was permitted under s54 HFEA 2008. The court found that Mr and Mrs A had acted in good faith and that the payments were not disproportionate and so the parental orders were made.
Re X and Y (Children) 2012
The judge endorsed the approach taken in Re X and Y about payments. Accordingly, the judge found that although the payment was too large to be considered reasonable, there was no doubt that the children’s welfare would be enhanced by the making of the parental orders.
D and L (Surrogacy) (2013)
The judge took the view that refusing to make the order would mean that the child was denied his right to respect for his family life under Art 8 European Convention on Human Rights because there would be no legal recognition of his relationship with his father. The judge noted that the state had a positive obligation under Art 8 to ensure that active steps are taken to promote the recognition of family relationships. Under s3 HRA 1998 the judge interpreted the word applicants in a way that was compatible with the child’s rights to include a deceased parent. The judge made the parental order in respect of both the mother and father.
A v P (2011)
Issues sometimes arise about the timing of the application for a parental order as this must be done within 6 months of the birth. The judge criticised the 6 month time limit as being too strict. He said that the court could make the parental order despite the clear deadline because of the importance of the order to the child’s identity. Parliament could not have intended that being even one day late would mean that the gate to such a “transformative” order was “barred forever”.
Re X (a child: Surrogacy: Time Limit) (2014)
A same-sex couple entered a surrogacy agreement via a clinic in India. Twins were conceived using the sperm of one of the couple and a donor egg. The court stated that the welfare of the children clearly required a parental order to be made rather than an adoption order. Parental orders were created to deal with surrogacy and were far more suited to it.
AB v CD (2015)
S41 HFEA 2008 provides that a sperm donor providing his sperm for treatment services or non-medial fertility services is not to be treated as the father of the child.
This case concerned a man who donated his sperm to a female same-sex couple in response to an advert. The donation was not performed in a clinic and the court held that the situation was outside the provisions excluding sperm donors from fatherhood that were then in force. The man was the genetic and legal father of the child.
Re M (Sperm donor: Father) (2003)
The mother had been unable to conceive a child with her husband. She had a sexual relationship with 3 men and the applicant and eventually became pregnant. The husband raised the child as his own. Initially, the applicant visited the child as a friend of the family but the contact ended because the mother considered that he had become too demanding. The marriage of the mother and her husband was stable and both were aware of the paternity doubts. In balancing the interests of the child against the interests of the mother and her husband, it was proper that DNA testing be carried out.
Re T (Paternity: Ordering blood tests) (2001)
Claimant unsuccessful sought a declaration that it was unlawful to provide her 4 daughters all under the age of 16 contraceptive advice without her consent. Parental rights were said to exist for the benefit of the child alone and to yield to the child’s right to make their own decisions when of sufficient age and understanding.
The court declined to impose fixed age limits on the process of growing up but clearly envisaged a gradual reduction in the range and scope of parental rights as a child acquired the maturity and understanding to make their own decisions. A child who has reached this point is often referred to as “Gillick competent”.
Gillick v West Norfolk & Wisbech HA (1985)
A child’s parents, who were Jehovah’s witnesses refused consent for the child to receive blood transfusions. The court held that a specific issue order allowing the transfusions had to be made; the child’s need for blood was so overwhelming that, in her best interests, her parents beliefs had to be overridden.
Re A (a Minor) (Blood Transfusion) (1993)
A rare example of the court considering the termination of a PR agreement. In this case, the mother applied, because at the time of the agreement, she was unaware that the father had caused the child serious, potentially disabling, injuries. The judge revoked the agreement on the ground of the welfare of the child. He also suggested that it would be relevant on the facts to consider whether the court would have made a PR order if the father did not already have it.
Re P (Terminating Parental Responsibility) (1995)
The COA found that the court should consider:
• The degree of commitment shown to the child by the father
• The degree of attachment existing between the father and the child; and
• The fathers’ reasons for applying for the order
Re H (Minors) (Local Authority: Parental Rights) (No.3) (1991)
The fathers’ reasons for applying were the basis for a refusal of PR. Despite the evidence of a close bond between the father and child and a commitment to the child, the COA held that a PR order would be inappropriate because the father intended to use the order for inappropriate reasons, e.g. to interfere with the child’s education.
Re P (Parental Responsibility) (1998)
The mother became pregnant by a man who was not her husband. She initially persuaded both men that the husband was the father. However, when the child was 2 the mother left her husband and renewed her relationship with the child’s father. DNA testing established that the husband was not the father and he applied for PR under s4A CA 1989. The court stated that the husband had only been able to apply under s4A as he and the mother were not yet divorced. S4A was primarily meant to apply to an “incoming stepparent” although it was not limited to this. The husband was very committed to the child, but it was not in the child’s best interests to grant the husband PR. It would place the husband at the heart of all future important decisions about the child which was likely to lead to conflict with the mother.
R v R (2011)
The mother had PR but did not have care of the child. The court held that she was entitled to be consulted over arrangements by the father for the education of the child.
Re G (a Minor) (Parental Responsibility: Education) (1994)
