FAMILY LAW
LARGE GROUP 3
Student Guide
Legal Parenthood and Parental Responsibility
Context
The area of law relating to children is both huge and complex. It covers numerous
issues: Who has duties and obligations towards a child? What rights does a child
have? How are disputes between parents about their children resolved? What
happens when a child is subjected to abuse or neglect? Your study of the topic of
children law will extend over several Large Groups and Workshops in the Family Law
Module.
In this Large Group you will begin your study of the topic by looking at two key
concepts which underpin children law: legal parenthood and parental responsibility.
Outcomes
By the end of this Large Group you should be able to:
1. Describe the distinction between legal parenthood and parental responsibility.
2. Outline how the concepts of legal parenthood and parental responsibility apply to
surrogacy.
1. Introduction
Baroness Hale in Re G (Children) (Residence: Same-sex Partner) [2006] 2 FLR
629:
“There are at least three ways in which a person may be or become a natural
parent of a child, each of which may be a very significant factor in the child’s
welfare, depending upon the circumstances of the case. The first is genetic
parenthood: the provision of the gametes which produce the child….The
second is gestational parenthood: the conceiving and bearing of the child. The
third is social and psychological parenthood: the relationship which develops
through the child demanding and the parent providing for the child’s needs….”
2. Legal Parenthood v Parental Responsibility
,
Parental responsibility= the person(s) having legal authority to make
decisions about a child’s upbringing
3. Legal Parenthood
The person(s) who are regarded by the law as the child’s parents
General rule- legal parenthood will follow biology
Statutory exceptions:
Mother- person givig parent- biological/genetic parent
- pregnant through surrogacy- not genetically related
So law sees
Father
Second female parent
Human Fertilisation and Embryology Act 2008
S33- the woman who is carrying or had carried the child as a result of
placing in her of an embryo or a sperm and eggs and no other woman
is to treated as the mother of the child
In law woman who gives birth is always the childs mother
R( on the app of McConnel) v Register for E + W [2020] EWCA Civ 559
By the time of birth the appellant was legally recognised as male
Wanted to appeal on childs birth certificate as childs father
Registrar refused- said as person who gave birth but say mother on
birth certificate
Decision upheld by court of appeal
Legal father- general rule- man who provides sperm is legal father
Exception- s41 HFEA 2008
A man who donates sperm for use in a assisted reproduction is a licensed clinic is
not a legal father of any children
S35- mothers husband - Where a mother undergoes assisted reproduction using
sperm and is in heterosexual marriage at time of treatment- husband is legal father
unless he didn’t consent to the treatment
S42 mothers wife/civil partner- mirrors s35- same sex marriage or civil partnerships
But mothers wife/civil partner- is child’s second female parent
S36 nominated man- mother who in a relationship but not married or In civil
partnership- she can with mans consent give notice for the partner to be childs legal
father
S43 nominated woman -same sex couple but not married or in civil partnership- can
be second female parent
Result- child can have max of 2 legal parents
Legal parenthood can only be lost in vary limited circumstances
Eg adoption and surrogacy
Second female parent
Activity 1
©
LARGE GROUP 3
Student Guide
Legal Parenthood and Parental Responsibility
Context
The area of law relating to children is both huge and complex. It covers numerous
issues: Who has duties and obligations towards a child? What rights does a child
have? How are disputes between parents about their children resolved? What
happens when a child is subjected to abuse or neglect? Your study of the topic of
children law will extend over several Large Groups and Workshops in the Family Law
Module.
In this Large Group you will begin your study of the topic by looking at two key
concepts which underpin children law: legal parenthood and parental responsibility.
Outcomes
By the end of this Large Group you should be able to:
1. Describe the distinction between legal parenthood and parental responsibility.
2. Outline how the concepts of legal parenthood and parental responsibility apply to
surrogacy.
1. Introduction
Baroness Hale in Re G (Children) (Residence: Same-sex Partner) [2006] 2 FLR
629:
“There are at least three ways in which a person may be or become a natural
parent of a child, each of which may be a very significant factor in the child’s
welfare, depending upon the circumstances of the case. The first is genetic
parenthood: the provision of the gametes which produce the child….The
second is gestational parenthood: the conceiving and bearing of the child. The
third is social and psychological parenthood: the relationship which develops
through the child demanding and the parent providing for the child’s needs….”
2. Legal Parenthood v Parental Responsibility
,
Parental responsibility= the person(s) having legal authority to make
decisions about a child’s upbringing
3. Legal Parenthood
The person(s) who are regarded by the law as the child’s parents
General rule- legal parenthood will follow biology
Statutory exceptions:
Mother- person givig parent- biological/genetic parent
- pregnant through surrogacy- not genetically related
So law sees
Father
Second female parent
Human Fertilisation and Embryology Act 2008
S33- the woman who is carrying or had carried the child as a result of
placing in her of an embryo or a sperm and eggs and no other woman
is to treated as the mother of the child
In law woman who gives birth is always the childs mother
R( on the app of McConnel) v Register for E + W [2020] EWCA Civ 559
By the time of birth the appellant was legally recognised as male
Wanted to appeal on childs birth certificate as childs father
Registrar refused- said as person who gave birth but say mother on
birth certificate
Decision upheld by court of appeal
Legal father- general rule- man who provides sperm is legal father
Exception- s41 HFEA 2008
A man who donates sperm for use in a assisted reproduction is a licensed clinic is
not a legal father of any children
S35- mothers husband - Where a mother undergoes assisted reproduction using
sperm and is in heterosexual marriage at time of treatment- husband is legal father
unless he didn’t consent to the treatment
S42 mothers wife/civil partner- mirrors s35- same sex marriage or civil partnerships
But mothers wife/civil partner- is child’s second female parent
S36 nominated man- mother who in a relationship but not married or In civil
partnership- she can with mans consent give notice for the partner to be childs legal
father
S43 nominated woman -same sex couple but not married or in civil partnership- can
be second female parent
Result- child can have max of 2 legal parents
Legal parenthood can only be lost in vary limited circumstances
Eg adoption and surrogacy
Second female parent
Activity 1
©
