Legal Parenthood (LP) Father Legal standing
‘based on fact, being proved… by parturition’ Ampthill Peerage Case Genetic father Generally – yes
Mother If sperm donor who consents to use – no (s41(1) HFEA)
• Woman who gave birth, even if acting as a surrogate (s33 Human
Fertilisation and Embryology Act 2008) Presumptive Rebuttable presumption he is the father if
• Parental rights transferred by a parental order (s54 HFEA) Paternity - Married to woman who gives birth and presumed he’s the father
• If they transition to male during the pregnancy they will still - Named on the child’s birth certificate as father (Brierley v Brierley)
be the registered mother (R (On the Application of
IVF Yes if married to woman undergoing IVF and consented (s35 HFEA)
McConnell) v Registrar for England and Wales [2020]) – s12
GRA 2004 Yes if not married but consent to him being father (s36/37 HFEA)
• Mother via adoption Parental order MAY if there is a Parental Order in his favour
The second parent
• S35 HFEA – mother’s husband Adoption If he adopts a child, he will be the legal parent
• IVF - if consents, LP , if no consent – no 2nd LP
• S42 HFEA – mother’s wife/CP
• S36 HFEA – nominated man (with consent) Category Legal Parenthood Parental Responsibility
• Brierley v Brierley – man put on the birth certificate
Birth-giver Yes (Ampthill Peerage Case) Automatic s2 CA
• S43 HFEA – nominated woman (with consent)
• S41(1) HFEA – sperm donor is not father provided he consents to Mother’s Husband Yes – if child of family, Banbury Automatic s2(1) CA
sperms use (same for egg (s47)) Peerage Case
• s31ZA – at 16 can get info about donor S2 Births and Death Registration
Nominated Person Process – s37 (mirrored for female in s44) Act 1953 – married father
• Must be in writing and signed (s37(2))
• Nominated person (s37(1)(a)) and mother (s37(1)(b)) must give automatically on birth cert.
notice they consent and it has not been withdrawn (s37(1)(c)) s35 HFEA (IVF/surrogacy)
• There cannot be any further nomination (s37(1)(d)) Unmarried Father If on birth certificate Acquired s2(2)
• Cannot be in prohibited degrees (s37(1)(e))
Mother’s wife Yes – s42 HFEA Automatic s2(1A)
• Limited to 2 legal parents Nominated Woman Yes - S43 HFEA Acquired
• LP only relinquished in limited circumstances (e.g. adoption)
• Can be gained via adoption/parental order Nominated Man Yes - s36 HFEA Acquired
• s55A(1) Family Law Act 1986 –apply to court for paternity ruling
On birth certificate Yes Yes – s4 (Births and Deaths
Registration Act 1953)
,Parental Responsibility (PR)
• S3(1) CA 1989 – all the rights duties and responsibilities which a parent has in relation to the child and his property
• ‘Parental Responsibility is more… than a mere lawyer’s concept or a principle of law… [p]arental responsibility involves duties owed by the parent not just to
the court … [it] involves duties owed by each parent to the child’ – Munby Re H-B (Contact) [2015]
• S2 CA – child’s mother and married father automatically have PR
• S2(2) - unmarried father’s do not unless (S4 FLRA 1987) on the birth certificate (s4(1)(a)) or have a PRA (s4(1)(b))/PRO (s4(1)(c)
• s4ZA – lesbian couple undertaking IVF with no ‘father’ will have PR
• S2(5) - More than 1 person may have PR, and powers do not cease if another gets PR (s2(6))
• Can act alone (unless otherwise stated) (s2(7))
Acquiring PR Losing PR
Ways to acquire PR Need court order s4(2A), can be
• Get registered under Births and Death Registration Act 1953 (s4(1)(a) CA/s4ZA(1)(a) 2nd female parent) applied for by another with PR
• Agreement (s4(1)(b)/s4ZA(1)(b)) in the prescribed form (s4(2)) (C(PRA1) Form) (s4(3)(a)) or a child (s4(3)(b))
• Court Order (s4(1)(c)/s4ZA(1)(c)) – when deciding, will consider s1 CA & Re H (Minors)(Parental Responsibility)(No 3) with sufficient understanding
factors: (s4(4))
1) Degree of commitment, 2) degree of attachment, 3) reason for person applying Re P (Terminating Parental
• Contact only a few times in the child’s life is not enough (Re J (Parental Responsibility) [1996]) Responsibility)[1995] – seriously
• Can be denied if appropriate (Re H (Parental Responsibility)[1988] – injured child; Re T (A Minor)(Parental injured child with long term
Responsibility: Contact) – harmed the mother; Re P (Parental Responsibility) [1997] – arrested when child born; mental and physical effects;
Re G (A Child)(Domestic Violence: Direct Contact)[2001]) CW v SG [2013] – father
• If child of sufficient age and understanding, will consider their views (Re G (A Child)(Domestic Violence: Direct sentences for sexual offences
Contact) – visibly upset at mention of father against the child’s half-sisters)
• Re s (Parental Responsibility) [1995]- can inquire the reasons for application but should not pass judgement on If PR under CAO and CAO stops –
the use of PR lose PR (s12(2))
• Married Step-parent (s4A(1)) with the agreement of all with PR (s4A(1)(a)) or step-parent applies (s4A(1)(b)) – generally Adoption revokes PR of
only incoming (Re R (Parental Responsibility) everyone before the adoption
• Having a s8 order made in their favour (s12) Special guardianship – does not
• Unmarried legal parent who marries mother revoke PR but means SG has
If a person is temporarily responsible, they do not have PR but can do what is reasonably necessary e.g. babysitter (s3(5)) exclusive power
if the mother is unlikely to exercise PR (e.g. negligence or illness) more important to have another with PR – S v R Ends when child turns 18
,Other Child issues
Paternity • S55A(1) FLA 1986 – anyone can apply for a declaration whether someone named in an application is/was the parent of another named person
issues • S26 FLRA 1969 – presumption of paternity rebuttable on balance of probabilities
(e.g. • Presumptions are weak so little evidence is necessary (S v S; W v Official Solicitor)
testing) • S20 FLRA 1969 – of court’s own volition or in civil proceedings (including s55A) where the parentage fails to be determined, the court can
permit scientific testing and samples to be taken at the court’s discretion (S v S; W v Official Solicitor [1970])
• S20(1) – cannot order tests to be taken, merely permit.
• S21(1) – consent is necessary, can be given for a person lacking capacity (s21(4)) or where they are a child, by the person caring for
them (s21(3)(a)) or the court (s21(3)(b))
• a person over 16 is classes as of age (s21(2)) as is a gillick competent child (L v P (Paternity Test: Child’s objection) [2011]).
• If a person refuses, inference may be drawn (s23(1)) so long as it is objectively valid and rational (Re G (Parentage: Blood
Samples) [1997])
• Must be sufficient evidence to justify considering the application (Re D (Paternity) [2006]).
• Cannot be used for deceased persons under s20 FLRA, but can under High Court’s jurisdiction if it is not speculative and a serious issue
(Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] – determine if he was the son of a man whose family had a history of
cancer)
• Can only refuse the order if it is in the child’s interest, otherwise it is always in their interest to know their parents (Re H (A
Minor)(Blood Test: Parental Rights) (Art 7 UNCRC ˅)
• Re F (A Minor)(Blood Test: Parental Rights) – would have had a detrimental effect on mother’s marriage which would have
impacted the child
• If outcome would be the same with/without the test, no point exposing child - Re F (A Minor)(Blood Tests: Parental Rights) [1993]
• UN Convention on the Rights of the Child – art7 – right to know/be cared for by parents - not absolute (Odièvre v France [2003])
• Ordering a Test is Art 8 ECHR Compliant as it is in the child’s best interest to know their parents (Mikulic v Croatia)
, Other Child issues
Surrogacy • Surrogacy Arrangement Act 1985
• Surrogacy is not legally enforceable
• S33 HFEA – person who gives birth is the mother
• Re G (Children) (Residence: Same-Sex Partner) [2006], Baroness Hale ‘while this may be partly for reasons for certainty and
convenience, it also recognises … that the process of carrying a child and giving him birth brings with it, in the vast majority of cases, a
very special relationship between mother and child’
• Commercial surrogacy illegal (s54(8)),
• Can pay reasonable expenses (X (Children)(Parental Order: Foreign Surrogacy) [2008] – disproportionate? acting in good faith? party
to defrauding authority? - reasonable based on the circumstances of the case, not so low as to exploit the mother, not so high as to
place unfair pressure on her (Re WT (Foreign Surrogacy) [2014])
• illegal to advertise,
• foreign surrogacy agreement legal (Wittington Hospital NHS Trust v XX) [2020])
• Ukrainian surrogacy – commercial surrogacy allowed – during covid could not be collected by commissioning parents, then
further by the war
• Laws on PR and Surrogacy apply to surrogate mothers
• S54/54A – commissioning couple can apply for a parental order to have the original parents’ role relinquishes – with court’s consent
• S54A – sole applicant/ s54 couple who are partners living in an enduring family relationship and not in prohibited degrees
• Re f and M (children)(Thai Surrogacy)(Enduring Family Relationship) [2016] – gay couple together for 2 years counted
• DM and Another v SJ and Others (Surrogacy: Parental Order) [2016] – couple lived together sometimes but committed counted
• S54(3) – must apply withing 6 months of the child’s birth - extended by courts (AB v CD (Surrogacy – Time Limit and Consent)[2015]; D and G
v ED and DD (Parental Order: Time Limits)[2015])
• S54(4) – must live with applicant (circumstantial (Re A and B (No 2)(Parental Order) [2015]) and parent domiciled in UK (not necessarily child
(Re Q (Parental Order: Domicile)
• S54(5) – must be over 18
• S54(6) - must be satisfied there was unconditional and knowing consent, unless impossible to discern consent (Re D and L (Surrogacy) [2012]
• once granted under s54 – mother who gave birth no longer legal parent
• The bar to revoke a PO is very high (G v G (Parental Order: Revocation [2012])
‘based on fact, being proved… by parturition’ Ampthill Peerage Case Genetic father Generally – yes
Mother If sperm donor who consents to use – no (s41(1) HFEA)
• Woman who gave birth, even if acting as a surrogate (s33 Human
Fertilisation and Embryology Act 2008) Presumptive Rebuttable presumption he is the father if
• Parental rights transferred by a parental order (s54 HFEA) Paternity - Married to woman who gives birth and presumed he’s the father
• If they transition to male during the pregnancy they will still - Named on the child’s birth certificate as father (Brierley v Brierley)
be the registered mother (R (On the Application of
IVF Yes if married to woman undergoing IVF and consented (s35 HFEA)
McConnell) v Registrar for England and Wales [2020]) – s12
GRA 2004 Yes if not married but consent to him being father (s36/37 HFEA)
• Mother via adoption Parental order MAY if there is a Parental Order in his favour
The second parent
• S35 HFEA – mother’s husband Adoption If he adopts a child, he will be the legal parent
• IVF - if consents, LP , if no consent – no 2nd LP
• S42 HFEA – mother’s wife/CP
• S36 HFEA – nominated man (with consent) Category Legal Parenthood Parental Responsibility
• Brierley v Brierley – man put on the birth certificate
Birth-giver Yes (Ampthill Peerage Case) Automatic s2 CA
• S43 HFEA – nominated woman (with consent)
• S41(1) HFEA – sperm donor is not father provided he consents to Mother’s Husband Yes – if child of family, Banbury Automatic s2(1) CA
sperms use (same for egg (s47)) Peerage Case
• s31ZA – at 16 can get info about donor S2 Births and Death Registration
Nominated Person Process – s37 (mirrored for female in s44) Act 1953 – married father
• Must be in writing and signed (s37(2))
• Nominated person (s37(1)(a)) and mother (s37(1)(b)) must give automatically on birth cert.
notice they consent and it has not been withdrawn (s37(1)(c)) s35 HFEA (IVF/surrogacy)
• There cannot be any further nomination (s37(1)(d)) Unmarried Father If on birth certificate Acquired s2(2)
• Cannot be in prohibited degrees (s37(1)(e))
Mother’s wife Yes – s42 HFEA Automatic s2(1A)
• Limited to 2 legal parents Nominated Woman Yes - S43 HFEA Acquired
• LP only relinquished in limited circumstances (e.g. adoption)
• Can be gained via adoption/parental order Nominated Man Yes - s36 HFEA Acquired
• s55A(1) Family Law Act 1986 –apply to court for paternity ruling
On birth certificate Yes Yes – s4 (Births and Deaths
Registration Act 1953)
,Parental Responsibility (PR)
• S3(1) CA 1989 – all the rights duties and responsibilities which a parent has in relation to the child and his property
• ‘Parental Responsibility is more… than a mere lawyer’s concept or a principle of law… [p]arental responsibility involves duties owed by the parent not just to
the court … [it] involves duties owed by each parent to the child’ – Munby Re H-B (Contact) [2015]
• S2 CA – child’s mother and married father automatically have PR
• S2(2) - unmarried father’s do not unless (S4 FLRA 1987) on the birth certificate (s4(1)(a)) or have a PRA (s4(1)(b))/PRO (s4(1)(c)
• s4ZA – lesbian couple undertaking IVF with no ‘father’ will have PR
• S2(5) - More than 1 person may have PR, and powers do not cease if another gets PR (s2(6))
• Can act alone (unless otherwise stated) (s2(7))
Acquiring PR Losing PR
Ways to acquire PR Need court order s4(2A), can be
• Get registered under Births and Death Registration Act 1953 (s4(1)(a) CA/s4ZA(1)(a) 2nd female parent) applied for by another with PR
• Agreement (s4(1)(b)/s4ZA(1)(b)) in the prescribed form (s4(2)) (C(PRA1) Form) (s4(3)(a)) or a child (s4(3)(b))
• Court Order (s4(1)(c)/s4ZA(1)(c)) – when deciding, will consider s1 CA & Re H (Minors)(Parental Responsibility)(No 3) with sufficient understanding
factors: (s4(4))
1) Degree of commitment, 2) degree of attachment, 3) reason for person applying Re P (Terminating Parental
• Contact only a few times in the child’s life is not enough (Re J (Parental Responsibility) [1996]) Responsibility)[1995] – seriously
• Can be denied if appropriate (Re H (Parental Responsibility)[1988] – injured child; Re T (A Minor)(Parental injured child with long term
Responsibility: Contact) – harmed the mother; Re P (Parental Responsibility) [1997] – arrested when child born; mental and physical effects;
Re G (A Child)(Domestic Violence: Direct Contact)[2001]) CW v SG [2013] – father
• If child of sufficient age and understanding, will consider their views (Re G (A Child)(Domestic Violence: Direct sentences for sexual offences
Contact) – visibly upset at mention of father against the child’s half-sisters)
• Re s (Parental Responsibility) [1995]- can inquire the reasons for application but should not pass judgement on If PR under CAO and CAO stops –
the use of PR lose PR (s12(2))
• Married Step-parent (s4A(1)) with the agreement of all with PR (s4A(1)(a)) or step-parent applies (s4A(1)(b)) – generally Adoption revokes PR of
only incoming (Re R (Parental Responsibility) everyone before the adoption
• Having a s8 order made in their favour (s12) Special guardianship – does not
• Unmarried legal parent who marries mother revoke PR but means SG has
If a person is temporarily responsible, they do not have PR but can do what is reasonably necessary e.g. babysitter (s3(5)) exclusive power
if the mother is unlikely to exercise PR (e.g. negligence or illness) more important to have another with PR – S v R Ends when child turns 18
,Other Child issues
Paternity • S55A(1) FLA 1986 – anyone can apply for a declaration whether someone named in an application is/was the parent of another named person
issues • S26 FLRA 1969 – presumption of paternity rebuttable on balance of probabilities
(e.g. • Presumptions are weak so little evidence is necessary (S v S; W v Official Solicitor)
testing) • S20 FLRA 1969 – of court’s own volition or in civil proceedings (including s55A) where the parentage fails to be determined, the court can
permit scientific testing and samples to be taken at the court’s discretion (S v S; W v Official Solicitor [1970])
• S20(1) – cannot order tests to be taken, merely permit.
• S21(1) – consent is necessary, can be given for a person lacking capacity (s21(4)) or where they are a child, by the person caring for
them (s21(3)(a)) or the court (s21(3)(b))
• a person over 16 is classes as of age (s21(2)) as is a gillick competent child (L v P (Paternity Test: Child’s objection) [2011]).
• If a person refuses, inference may be drawn (s23(1)) so long as it is objectively valid and rational (Re G (Parentage: Blood
Samples) [1997])
• Must be sufficient evidence to justify considering the application (Re D (Paternity) [2006]).
• Cannot be used for deceased persons under s20 FLRA, but can under High Court’s jurisdiction if it is not speculative and a serious issue
(Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] – determine if he was the son of a man whose family had a history of
cancer)
• Can only refuse the order if it is in the child’s interest, otherwise it is always in their interest to know their parents (Re H (A
Minor)(Blood Test: Parental Rights) (Art 7 UNCRC ˅)
• Re F (A Minor)(Blood Test: Parental Rights) – would have had a detrimental effect on mother’s marriage which would have
impacted the child
• If outcome would be the same with/without the test, no point exposing child - Re F (A Minor)(Blood Tests: Parental Rights) [1993]
• UN Convention on the Rights of the Child – art7 – right to know/be cared for by parents - not absolute (Odièvre v France [2003])
• Ordering a Test is Art 8 ECHR Compliant as it is in the child’s best interest to know their parents (Mikulic v Croatia)
, Other Child issues
Surrogacy • Surrogacy Arrangement Act 1985
• Surrogacy is not legally enforceable
• S33 HFEA – person who gives birth is the mother
• Re G (Children) (Residence: Same-Sex Partner) [2006], Baroness Hale ‘while this may be partly for reasons for certainty and
convenience, it also recognises … that the process of carrying a child and giving him birth brings with it, in the vast majority of cases, a
very special relationship between mother and child’
• Commercial surrogacy illegal (s54(8)),
• Can pay reasonable expenses (X (Children)(Parental Order: Foreign Surrogacy) [2008] – disproportionate? acting in good faith? party
to defrauding authority? - reasonable based on the circumstances of the case, not so low as to exploit the mother, not so high as to
place unfair pressure on her (Re WT (Foreign Surrogacy) [2014])
• illegal to advertise,
• foreign surrogacy agreement legal (Wittington Hospital NHS Trust v XX) [2020])
• Ukrainian surrogacy – commercial surrogacy allowed – during covid could not be collected by commissioning parents, then
further by the war
• Laws on PR and Surrogacy apply to surrogate mothers
• S54/54A – commissioning couple can apply for a parental order to have the original parents’ role relinquishes – with court’s consent
• S54A – sole applicant/ s54 couple who are partners living in an enduring family relationship and not in prohibited degrees
• Re f and M (children)(Thai Surrogacy)(Enduring Family Relationship) [2016] – gay couple together for 2 years counted
• DM and Another v SJ and Others (Surrogacy: Parental Order) [2016] – couple lived together sometimes but committed counted
• S54(3) – must apply withing 6 months of the child’s birth - extended by courts (AB v CD (Surrogacy – Time Limit and Consent)[2015]; D and G
v ED and DD (Parental Order: Time Limits)[2015])
• S54(4) – must live with applicant (circumstantial (Re A and B (No 2)(Parental Order) [2015]) and parent domiciled in UK (not necessarily child
(Re Q (Parental Order: Domicile)
• S54(5) – must be over 18
• S54(6) - must be satisfied there was unconditional and knowing consent, unless impossible to discern consent (Re D and L (Surrogacy) [2012]
• once granted under s54 – mother who gave birth no longer legal parent
• The bar to revoke a PO is very high (G v G (Parental Order: Revocation [2012])
