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Alison and Benjamin were good friends. Benjamin was very keen on having children and Alison agreed to have a child with him, but medical tests indicated that he had a low sperm count. In 2004, they decided to attend a fertility clinic, stating that they were partners. Unknown to Benjamin, Alison was having an affair with Charles.
In May 2005, Alison gave birth to Serena. Her relationship with Charles ended and she has since refused to let Benjamin see Serena, saying that the child is not his. In June 2005, Benjamin found out from a common friend that Alison had given Serena to Lisa and Fred, a married couple, and that she was paid £15,000 by them. Apparently, Alison had agreed to have a baby for them, as Fred has a rare genetic order and had been advised not to have children. Lisa already has three children living with them from a previous relationship- Maria, aged 4, Ned, aged 8, Olaf, aged 14.
Lisa has recently been unwell and Fred is unable to tolerate the strain of looking after the three children and the baby, Serena. The neighbours have heard Fred shouting and the younger children crying. One of the neighbours has said that she saw Fred shaking the baby Serena to stop her from crying. The school has also noticed that the children look very tired, unkempt and that Ned has a very bad bruise on his arm. Unknown to Lisa, several years ago, Fred was questioned by the police in relation to an allegation of sexual abuse by a young girl, but there was insufficient evidence to prosecute him. Olaf has recently been diagnosed with a kidney disorder and the doctors recommend a transplant. Ned, his younger brother, has agreed to donate one of his kidneys. Although Fred and Lisa approve of the operation , Olaf is adamantly opposed to it, as under his aunts influence he has recently become a devoted Jehovas witness, the tenets of which preclude, for example blood transfusions, Olaf has threatened to leave home and move to his aunts house if they do not respects his wishes.
Alison now bitterly regrets having given Serena away. She says that she is her legal mother and wants to look after her. She is, however unemployed and concerned about receiving sufficient child maintenance. Benjamin insists that he is Serena Father and has threatened to initiate legal proceedings so that Serena can live with him and his girlfriend. Last week Benjamin assaulted Alison when she told him about her affair with Charles. The Ever Ready Social services has been alerted about all four children and are considering there options in relation to them.
Advise Alison, Benjamin, Olaf and the Ever ready Social services as to what steps they can take in light of the above circumstances.
Law governing domestic relations always treads a very careful line between protecting the rights of privacy of people living in a liberal state and the need to protect and regulate certain relationships that are open to extreme abuse. In the following situations we will advise four inter-related person’s on the legal consequences of their domestic situations and disagreements.
The first step in establishing the likelihood of Alison being able to fulfil her desire and have Serena returned to her is to establish the existence of parental rights given the somewhat complex situation in which Serena was conceived. The existence of in vitro technology has caused novel problems for the law’s approach. The vestment of rights and responsibilities in the mother was, at common law and statute, straightforward, automatic and fundamentally premised on the genetic tie to the child concerned. However, the potential for the genetic link between mother and child to be broken by the implanting of a foreign embryo in her womb means that the law must have some method of resolving disputes over who has parental rights and responsibilities. This situation does not exist in this case however the issue of surrogacy is linked to the regulation of parental responsibilities and rights in conjunction with these new technologies under the Human Fertilisation & Embryology Act 1990.
It would appear as though Alison had a surrogacy arrangement with Fred and Lisa to give them Serena for a certain amount of money. It is well established that the gestational mother, in this case Alison, automatically inherits parental rights and responsibilities under s.27 (1) of the HFEA 1990. This includes the right to determine the child’s residence and other correlative rights.
The commissioning couple, in this situation Fred and Lisa, have tow options to formalise their relationship with Serena. They can, within 6 months of the birth, apply for a parental order under s.30 of the HFEA 1990; this is equivalent to a speedy adoption process.
They could make an application under the Children Act 1989 for a residence order or they could opt for the full adoption process. It appears at the moment that Lisa and Fred have done none of the above and therefore currently do not have any legal relationship with Serena. This however does not mean that it is merely a formality for Serena to be returned to Alison.
In order for Alison to have Serena returned, presuming Fred and Lisa are unwilling to return her voluntarily, she will have to make an application to the court to make a residence order under s.8 of the CA 1989 in her favour. In doing this Fred and Lisa may well make some form of counter-claim for parental responsibilities whether this is a residence order, adoption order or a parental order. The courts have given us little guidance as to the outcome in surrogacy disputes over the years given the infrequent nature of disputes of this kind. In RE P the court held that where the surrogate mother declined to hand over the twin babies to a married couple it was of the utmost importance to maintain the maternal bond and awarded what was then ‘custody’ to the mother. However, in C v. S a very similar situation arose to the facts in this case where the commissioning parents had been de facto in charge of the child for a year. Although a Scottish case the reasoning would certainly exert influence on English Law and in this case the Sheriff felt that the welfare of the child being the paramount principle required the court to adjudicate in the favour of the surrogate parents given that the child had established a bond with them and their genetic mother was a stranger.
In attempting to conclude the likelihood of success of Alison’s action I draw on wider case-law on the issue of the blood link in parenthood. The case of Re K (A Minor) (Custody) established that the relevant question is not to consider who can offer a better home but whether the welfare of the child positively demands the displacement of the parental right. In that case a child was removed from his Aunt and Uncles were a disturbed child had apparently ‘flourished‘ and given to his father. Similar situation arose in Re K where the child had formed strong bonds to the Uncle and Aunt but the Mother changed her mind about the arrangement 18 months after she had handed over the child and applied for custody. Butler-Sloss LJ relied on other psychological evidence to the effect of enhanced sense of identity. In Re W (A Minor) (Residence Order) 1993 the maternal grandparents had looked after a boy who had been very disturbed and emotionally deprived, the grandparents were acknowledged to have ‘worked wonders‘ with the child, the child wished to stay with his grandparents but the judge gave residence to the father. In spite of all the contrary evidence, fortunately it became clear on appeal that the father wouldn’t be able to provide a perfect normal family and the order was overruled. In Re M (Child’s Upbringing)and Re B (A Minor) children had been removed from their parents to another culture for some time by the time the court awarded residence to the parents, particularly in Re M where the child had been with the parents for 4 years by the end of litigation, spoke little of his native language and was well settled.
Given the overall favouring of the blood-link in English domestic relations law generally I would argue that the evidence of violence and investigation by social services of Fred and Lisa would be enough that the blood link presumption would operate in favour of Alison and she would be able to get a residence order over Serena.
Benjamin faces much the same situation as Alison in that he must primarily establish his paternity and then make out his case to have Serena returned to him. The paternity issue is confused given that Alison was having an affair with Charles at the time and presumably it is difficult to tell whether the pregnancy ensued from the fertility treatment or the affair. The position of unmarried fathers in law is not particularly satisfactory, they do not get automatic parental rights or responsibilities and the situation is always more difficult than for the mother. In this situation there are three potential fathers; Benjamin, Charles or Fred. In the same way as we mentioned above Fred can be discounted as there doesn’t seem to have been any legal actions taken by the surrogate couple and therefore he has no parental rights or responsibilities.
s.28 (3) of the HFEA 1990 deals
with the situation where an unmarried couple go to treatment ‘together‘, given that none of the paternity qualifications in normal circumstances (i.e. he is not married to Alison (s.2 (1) CA 1989) nor is he, as far as we know, been subject to a parental responsibility agreement pursuant to s.4 of the CA 1989) we have to look at the HFEA 1990 to establish his paternity automatically.
The Warnock Committee considered this very issue and in a progressive move allowed unmarried partners to have automatic parental rights, this translated into s.28 (3) of the HFEA 1990 which provides that ‘in the course of treatment services provided for her [The Mother] and a man together’ then the man will be considered to be the father. This only operates if the procedure used, required donation from a third party as s.28 (3) (b) requires that the man is not to be the donor of the sperm. We do not have details of the treatment but if it was Artificial Insemination by Donor or In Vitro Fertilisation using another man’s sperm then this presumption operates. If not however and it was Benjamin’s sperm then he will be in the same position as an unmarried father which as mentioned above doesn’t automatically give him rights and responsibilities. He could in conjunction with an order for residence also request an order of parental rights and responsibilities under s.4 (1) (a) of the 1989 Act. However, this will operate primarily on the basis of blood groups and DNA profiles and if Alison is correct and it is in fact Charles that is the genetic father Benjamin’s order will be rejected. This would effectively bar him from requesting an s.8 order for residence in that he would not fall in any of the categories entitled to make a claim.
However, assuming that he wasn’t the sperm donor or he was the genetic father we now have to consider his application for residence with him and his girlfriend. Presumably in this case the actions of both Alison and Benjamin would be joined so the court could make a uniform decision between maintaining the status quo and granting residence to Benjamin or Alison. We have already seen in Alison’s example that the blood link presumption is strong. The operation of this doctrine in Benjamin’s case is unclear because he might have parental rights and responsibilities but not actually be related to the child genetically. However, given the unsatisfactory nature of Fred and Lisa’s relationship with the children it was argued above that a residence order would be considered in any case.
This would effectively bring Alison and Benjamin into conflict over who would best serve the child’s welfare. The court’s in recent years have taken a move away from unilateral residence orders and following the landmark case of D v D (Shared Residence Order) where the court seemed to reject decades of case law on the issue and state that the best interests of the child may be suited to this and that there was no need for exceptional circumstance nor even a positive benefit.
This is a distinct option in this case where the issues are finely balanced given Benjamin’s assault on Alison, Alison’s behaviour in refusing contact, selling Serena to Lisa and Fred, Serena’s lack of finances to support Serena and the potential of a nurturing nuclear family in Benjamin and his girlfriend.
All these factors must be weighed and the application of the Welfare principle will be different in every situation. However, on the information provided it would appear as though the case law favours Benjamin given his stable family relationship and ability to provide for Serena.
The issues surrounding Olaf are complex but despite the controversy that surrounds this area of law the issue of competence in adolescent children to make important decisions especially concerning the use of medical treatment is an area which appears to be settled.
The starting point of any discussion in this area is the case of Gillick v. West Norfolk & Wisbech
Area Health Authority and in particular the now famous dicta by Lord Scarman:
‘The underlying principle of the law is … that parental rights yield to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision‘
This is also a fundamental tenet of Human Rights in Article 12 which also ensures that children’s views be taken into consideration. There is not a definitive age at which Gillick-competence materialises but relies on the ‘sufficient intelligence and understanding‘ test. Gillick was seen by many commentators as the zenith of liberal state regulation of domestic relationships however the court has in recent years moved towards more of a state paternalism and a willingness to overrule a Gillick-competent child. On more direct authority we have the case of ReR (A Minor) the court here held that Gillick was on the issue of consent to treatment and imported a test whereby it only required the consent of either the parents or the child. This has been subsequently followed and the law now imposes a ‘flak jacket‘ test
whereby consent is necessary only as protection from liability for doctors and that as long as consent comes from one interested party whether that be the courts or a Gillick-competent child. The position was stated by Lord Donaldson in the case of a Gillick-competent child to be that parents could not override refusal to consent but that the courts could.
Therefore on the above authorities Olaf has the right to consent to the treatment, his parents cannot overrule this decision however if the doctors decide to apply to the court they could overrule his decision. The court wouldn’t do this per se but there is the potential. The decisions discussed above and subsequent ones such as Re K, W and H (Minors) (Medical Treatment) have been where the child was suffering some sort of psychological problem and overruled his decision, this situation would be novel and as such would turn on the psychological state of Olaf and the courts adherence to either principles of paternalism of liberalism.
Ever Ready Social Services
Ever Ready Social Services are considering its options in the current situation given the allegations of shouting, the evidence of the bruising on Ned’s arm and the general demeanour. The approach of Social Services is generally premised on a ‘no-order principle’ or a ‘minimum intervention principle’.
The difficulty and the negative outcomes of this policy have caused huge debate in all UK jurisdictions in recent years. Ever Ready have all the orders under Part V of the CA 1989 such as Emergency Protection orders, Removal and Accommodation Orders and other such legal paraphernalia however fundamentally speaking whilst the CA 1989 discourages overly paternalistic intervention it does place a duty on local authorities to investigate where they ‘have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm‘.
The recent case law has emphasised the balance that has to be paid to these two legal principles of duty to investigate and duty not to intervene in private family life excessively.
The courts have provided guidance on this issue in the recent X Council v. B (Emergency Protection Orders) EPO’s should only be undertaken if the situation is such that the children are in a high level of imminent danger therefore in consideration of the facts this probably wouldn’t be an acceptable course of actions.
Ever Ready probably has enough information to order a Child Assessment order so that they can obtain more precise information as to whether the children are suffering, or likely to suffer, harm. The existence of a previous allegation of sexual abuse against Fred and the evidence of the neighbours of Shouting go towards the balance of probabilities threshold that a local authority are required to prove in order to establish that the order is in the welfare of the child.
However given the dicta in X Council and the opinion of academics these orders should only be considered if the local authority has attempted informal procedures to try and see the child and consult with the parents. The use of informal methods followed by a Child Assessment Order if they fail has to be the first two steps to take. The evidence presented in the question does not give sufficient grounds for any more stringent actions even given the previous allegations.
- Diduck& Kaganas Family Law, Gender and the State Oxford / 1999
- Edwards, Lillian & FamilyLaw W.Green / Sweet & Maxwell/Griffiths, Anne 1997
- Douglas& Lowe Becoming a Parent in English Law (1992)108 LQR 414
- Hudson, Richard Children’sRights and Gillick 1989 NLJ 49
- Hutchesson, Peter Re W(a minor) (refusal of 1992 NLJ 1124 medical treatment)
- Iwaniec, Dorota, Research– The Plight Of 2004 CFLQ 423
- Donaldson, Theresa NeglectedChildren — Social Work & Allweiss, Hon. AndJudicial Decision-Making,
- Judge Martin AndManagement Of Neglect Cases
- McCallum, Louise SharedResidence — Just A Label? 2004 Fam LJ 528
- Radevsky, Tony TheStandard of Proof in Wardship 1988 NLJ 125
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