Harry and wendy

a. The Legal Parents of Bobby

Section 27(1) of the Human Fertilisation and Embryology Act 1990 provides:

“The Woman who is carrying or who has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child”

Section 29 (1) further provides that a woman treated as the child's mother under section 27 is treated in law as the mother of the child for all purposes. Thus there is certainty. The woman who gives birth to a child is the child's mother whether or not the child is genetically related to her . Therefore Claudia will be considered to be Bobby's mother.

As Claudia was married to Derek at the time she gave birth to Bobby the presumption of legitimacy will apply and the surrogate mother's husband will be the father. Where birth follow some form of assisted conception and the woman is married at the time when conception takes place, or when an embryo's sperm or eggs are placed in her he HFEA deems her husband to be the child's legal father and he cannot absolve himself from legal paternity and parental responsibility. The only situation where Derek will not be deemed to be the legal father is where he can show that he did not consent to his wife's fertility treatment

b. Parental Responsibility

A mother will always have parental responsibility. The position of fathers is more complicated. Section 2 (1) of the Children Act 1989 provides:

“Where a child's father and mother were married to each other at the time of the birth, they shall each have parental responsibility for the child.” Therefore Claudia and Derek will have parental responsibility for Bobby.

c. Forcing Claudia to Hand over Bobby

In the cases of surrogate motherhood there is no doubt, as is indicated above who is the child's mother, however in some instances, section 30 (1) of the Human Fertilisation and Embryology Act 1990 provides that a court may make an order in favour of the commissioning couple “providing for a child to be treated in law as the child of the parties to a marriage. ” Before such an order can be made a court must be satisfied that the child has been carried by a woman other than the wife as the result of placing in her of an embryo or sperm and eggs, or her artificial insemination, and that the gametes of the husband or the wife or both, were used to bring about the creation of the embryo. In addition it must be satisfied that various conditions specified in subsection (2) to (7) of section 30 have been complied with. These conditions include that the application for the order has been made within six months of the child's birth; that both the woman who carried the child and the father of the child agree unconditionally to the making of the order; and that no money or other benefit has been given or received by the commissioning couple for the purposes of the surrogacy arrangements and the making of the order. Once an order is made under section 30 the child becomes the child becomes the child of the commissioning parents, and the woman who gave birth to him is no longer recognised by law as his mother. However, it should be noted that proceedings under section 30 are family proceedings for the purposes of the Children Act 1989 and a court can make an order under section 8 of the Act.

The condition (v) limits any payment or the equivalent to the surrogate or by the commissioning couple but does allow reasonable expenses to be paid. However, other payments in money or kind may be made with the authorisation of the court . Section 30 only allows expenses reasonably incurred. Thus, any element of payment is outlawed by this section. On the basis of the information that has been provided to us it would appear that firstly under the HFEA 1990, Bobby can not be handed over to Wendy and Harry without her agreement and the inclusion of £17,000 to Claudia may make the agreement illegal.

Sarah and Fred

The issue of consent is crucial. In the case of R v Human Fertilisation and Embryology Authority ex p Blood this issue was considered and the applicant Diane blood wished to use her husbands frozen sperm. Her husband contracted meningitis and died. While he was unconscious in hospital doctors, at the request of Mrs Blood, removed a sample of his sperm and stored it at a licensed clinic. Subsequently Mrs Blood wished to be artificially inseminated with her late husband's sperm in order ot have a child. However, the Human Fertilisation and Embryology Authority refused to releae the sperm to her on the grounds that the husband had not consented to its removal and use, and therefore to authorise the wife's insemination with his sperm would be contrary to the provisions of the HFEA 1990 . It was accepted by the authority that it had discretion to authorise the export of he sperm so that Mrs Blood could be treated abroad. However, the Authority took the view that they should not give permission to the sperm to Belgium where she might be able to be treated.

Mrs Blood sought to challenge the Authority's decision by way of judicial review. Sir Stephen Brown, President, felt unable to accede to her application but granted leave to appeal. The Court of Appeal held that storage of sperm could only take place lawfully pursuant to a licence where the donor had given written consent, been give the opportunity to receive counselling, and had been provided with proper information. Therefore, the sperm should never have been preserved and stored and the decision of the Authority to refuse to release the sperm was correct. However, the Authority had a wide discretion to authorise the expert of the sperm , and by refusing the request to export the sperm, the Authority had failed to consider the effect of Articles 59 and 60 of the EC treaty. These provisions gave the wife a right directly enforceable by her to receive medical treatment in another Member State. On the basis of the decision in this case, provided it an be shown that Fred gave his permission it is perfectly acceptable for Sarah to use Fred's sperm in order to impregnate herself.

George

1. Parental Responsibility for Kelly

As discussed above in relation to Harry and Wendy, a mother will always have parental responsibility for her child even where she is not married to the father. Therefore Sarah will have parental responsibility for Kelly. However George's position will be somewhat different.

“Where a child's mother and father were not married to each other at the time of his birth-

(a) the mother shall have parental responsibility for the child;
(b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of he Act”

Therefore, unless he applies to the courts for a parental responsibility order, George will not have parental responsibility for Kelly as of right.

Preventing Change Of Kelly's Surname And Religion

As there is no agreement between Sarah and George, George is entitled to apply for a parental responsibility order and would need to do so before applying for any order to prevent Kelly's surname and or religion being changed. There is no specific guidance in section 4 on how the court should determine whether to confer parental responsibility, and the court is not required to apply the checklist in section 1 (3) which identifies those matters to which a court must have regard when deciding what court of action will best promote a child's welfare. However, who should have parental responsibility is undoubtedly a question with respect to the upbringing of a child, and the child's welfare is therefore the court's paramount consideration in determining the issue . Those who have parental responsibility have an advantage when decisions are made about a child's future as they are entitled to be consulted as George wishes to be in this situation.

In Re C and V (Contact and Parental Responsibility) the Court of Appeal reminded the lower courts of the discrete nature of a parental responsibility order which is designed to do no more than confer on the natural father the same legal status of fatherhood which a father has when married to the mother. Ward LJ explained that normally it is in the best interests of a child that a parental responsibility order is made

The Parental Responsibility Order is 'the subject of a discretion cast in the widest terms, without any statutory rubric being added as to the basis of its exercise '. The introduction of the parental rights and duties order was, as Waite J explained in Re CB (A Minor) (Parental Responsibility Order), 'an instance of parliamentary willingness to allow the courts to develop their own criteria', and the courts soon obliged. In Re H (Minors) (Local Authority: Parental Rights) (No 3) the Court of Appeal, delivering what has become the leading decision in this area, said:

'In considering whether to make an order under s 4 of the 1987 Act, the court will have to take into account a number of factors of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive):

(1) the degree of commitment which the father has shown towards the child; (2) the degree of attachment which exists between the father and the child; and (3) the reasons of the father for applying for the order.'

Commitment can take a variety of forms, and need not be demonstrated in day-to-day care of the child. Indeed, where the parents' relationship is acrimonious, the father's most responsible and committed response might be to withdraw on that level. In such circumstances, commitment might be evidenced by regular contact , persistence in making applications to the court , or the payment of maintenance. Attachment is regarded as a two-way process. With regard to the third of the Re H criteria, it has been pointed out that the father may have no particular reason for applying other than the desire to have parental responsibility for his child, and so the absence of specific reasons is no bar to the grant of an order; this criterion is essentially concerned with identifying the father whose motives for wanting parental responsibility are improper. Therefore it is likely in such circumstances that George will be awarded parental responsibility. He will then only have the right to be consulted about decisions made about Kelly

3. Whether George Would be Successful in obtaining a Residence Order

Under Section 8 of The Children Act 1989, George could apply for a residence order and or a contact order, as the conditions for leave to apply are very similar these two orders will be dealt with together.

A residence order means: “… an order settling the arrangements to be made as to the person with whom a child is to live”

Where a court makes a residence order in favour of the father it must also make an order giving him parental responsibility . A section 8 order can be made when someone makes a free-standing application for an order under section 10(2) as will be the case here. A court in free standing or family proceedings have power to make a section 8 order of its “own motion.” This means that where the court takes the view that a section 8 order would be in the child's best interests then it can make such an order even though no application for an order has been made.

Section 10(4) provides: “The following persons are entitled to apply to the court for any section 8 order with respect to a child-

(a) any parent or guardian of the child

(b) any person in whose favour a residence order is in force with respect to the child

This is further qualified by section 10(5) which identifies a privileged group of persons who are entitled to apply for a residence or contact order:

"The following persons are entitled to apply for residence or contact order with respect to a child

(a) any party to a marriage in relation to whom a child is a child of the family

(b) any person with whom the child has lived for a period of at least three years;

Therefore George will be entitled to apply for a residence order as he is on of the parents of Kelly.

The court will then consider whether or not to make such an order on the basis of the following

"Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, having particular regard to

(a) the nature of the proposed application
(b) the applicant's connection with the child;
(c) any risk there might be of the proposed application disrupting the child's life to such an extent that he would be harmed by it ;

The court will therefore take these factors into consideration when deciding whether or not to grant leave. The nature of the proposed application, and the applicant's connection with the child, are distinct criteria but are often considered together. They indicate that any person who can demonstrate a genuine relationship with, and a legitimate concern about, some matter relating to the child's upbringing will normally be granted leave.

When determining whether or not to grant leave, the court is required to have particular regard to (c) as above. “Harm” for these purposes means harm as defined by section 31(9) and means ill-treatment or the impairment of health or development. This will involve considering the children's wishes and feelings . The Court should also consider matters which relate to the substantive application when considering whether the application might prove to be disruptive. It is likely to be considered too disruptive in this case as Kelly has resided with her mother for such a lengthy period of time. It is unlikely that the court will award a residence order in favour of George.

Wendy Insisting On Delia Being Sterilised
Harry will have rights in relation to Delia's care as he is married to Delia's mother. It is important at this juncture to point that any treatment proposed must always be in the best interests of the child and in accordance with a recognised body of medical opinion. Children should be assed to see whether or not they are Gillick competent. A Gilick competent child is of an age and maturity to understand fully what is involved in a proposed intervention, and is capable of making decisions about their own treatment.

Delia is unlikely to be Gillick competent and therefore consent to any treatment will need to be obtained from a person with parental responsibility. It is essential that a person giving consent for treatment has all the information about the proposed procedure in order to act in the child ‘s best interests. If there is more than one person with parental responsibility then the consent of one is normally sufficient, except in cases where decisions are deemed so important that all those with parental responsibility should consent, and sterilisation is one of those situations . In such circumstances these decisions should be referred to the court, therefore Harry will have to seek leave to apply for an order.

Harry seeing Delia

As Harry is married to Wendy then he will have parental responsibility of Delia. Under Section 8 of The Children Act 1989, Harry could apply for a residence order and or a contact order, as the conditions for leave to apply are very similar these two orders will be dealt with together.

A residence order means: “… an order settling the arrangements to be made as to the person with whom a child is to live”

Where a court makes a residence order in favour of the father it must also make an order giving him parental responsibility .

A contact order means: “… an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other”

A section 8 order can be made when someone makes a free-standing application for an order under section 10(2) as will be the case here. A court in free standing or family proceedings have power to make a section 8 order of its “own motion.” This means that where the court takes the view that a section 8 order would be in the child's best interests then it can make such an order even though no application for an order has been made.

Section 10(4) provides: "The following persons are entitled to apply to the court for any section 8 order with respect to a child

(c) any parent or guardian of the child

(d) any person in whose favour a residence order is in force with respect to the child

This is further qualified by section 10(5) which identifies a privileged group of persons who are entitled to apply for a residence or contact order:

“The following persons are entitled to apply for residence or contact order with respect to a child

(c) any party to a marriage in relation to whom a child is a child of the family

(d) any person with whom the child has lived for a period of at least three years;

Therefore Harry will be entitled to apply for a residence or contact order as he has lived with Delia for a period that exceeds three years, ten years and he is a parent of the child for whom he seeks the residence order.

The court will then consider whether or not to make such an order on the basis of the following

"Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, having particular regard to

(d) the nature of the proposed application
(e) the applicant's connection with the child;
(f) any risk there might be of the proposed application disrupting the child's life to such an extent that he would be harmed by it ;

The court will therefore take these factors into consideration when deciding whether or not to grant leave. The nature of the proposed application, and the applicant's connection with the child, are distinct criteria but are often considered together. They indicate that any person who can demonstrate a genuine relationship with, and a legitimate concern about, some matter relating to the child's upbringing will normally be granted leave.

When determining whether or not to grant leave, the court is required to have particular regard to (c) as above. “Harm” for these purposes means harm as defined by section 31(9) and means ill-treatment or the impairment of health or development. This will involve considering the children's wishes and feelings . The Court should also consider matters which relate to the substantive application when considering whether the application might prove to be disruptive.

Bibliography

Legislation

The Children Act 1989

Cases

G v F [1998] 2 FLR 799

Re A (A Minor) (Residence Order: Leave to Apply) [1993] 1 FLR 425

Re A (minors) (residence order) [1992] 3 ALL ER 872

Re Adoption Application (Payment for Adoption) [1987] Fam 81

Re CB (A Minor) (Parental Responsibility Order) [1993] 1 FLR 920

Re C and V (Contact and Parental Responsibility) [1998] 1 FLR 392

Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] FAM 151

R v Human Fertilisation and Embryology Authority ex p Blood [1997] 2 FLR 742

Re J (Parental Responsibility) [1999] 1 FLR 784

Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision) [2000] 1 FLR 571

Re M (Contact: Family Assistance: Mckenzie Friend) [1999] 1 FLR 75, At P 80e

Re Q (Parental Order) [1996] 1 FLR 369

Re W (Minors) (Surrogacy) [1991] 1 FLR 385

Journal Articles

Gilmore S, (2003) “Parental Responsibility and the Unmarried Father - A New Dimension to the Debate” Child and Family Law Quarterly 15.1 (21)

The Warnock Committee Report of the Committee of Inquiry into Human Fertilisation and Embryology (`984) Cmnd 9314

Books

Barton C, (2005) “Family Law”, Fourth Edition, Oxford University Press

Douglas G, (2004) “An Introduction to Family Law”, Second Edition, Oxford University Press

Hayes M & Williams C, (2004) “Family Law: Principles Policy and Practice”, Second Edition, Butterworths