Sunday, 3 August 2008

English Court of Appeal case: child can have three parents

In the recent English Court of Appeal case of
In the matter of:
Re A (A Child: Joint Residence/Parental Responsibility)
, the court affirmed an earlier English decision that a child can have more than two parents.

The question arose when, after the commencement of bitter litigation and the obtaining of a family report that recommended a joint residence between the mother and her former partner, the mother then said that she wasn't sure that her former partner was the father, and it could have been another man, and yes indeed the DNA test showed the other man was A's father.

Not surprisingly, the mother was criticised for her behaviour, as was the former partner, in his case for having set up CCTV in their home without her knowledge!

The interesting legal point was as to what constitutes a "parent". This is of particular relevance in Australia given that the Family Law Act does not adequately define "parent".

Section 4 of the Family Law Act defines "parent" thus:

"parent" , when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.



However, section 60B, in looking at the objects of Part VII, which deals with parenting issues, talks about "both of their parents" and "both their parents" and section 60CC(2) refers to "both of the child's parents". Subsection (3) in various places talks of "each of the child's parents" and (4A)"if the child's parents have separated" again indicating that there can only be two- presumably the biological parents.

The English Court of Appeal, in rejecting the appeal, said that the mother's former partner was a "parent", meaning the children had three parents.

The court followed the decision of the House of Lords in In re G (children), in which Baroness Hale said that there were three types of natural parents:

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 particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is "his" child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child (see, for example, the psychiatric evidence in Re C (MA) (An Infant) [1966] 1 WLR 646). For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.

The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child's mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.

The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:


"A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.

But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others.


Re G was a case involving a fight between a lesbian couple about their children. The biological mother, who had used an IVF clinic, tried to stop her former partner from having anything to do with the children. The case, on appeal, turned on the issue of whether the children should be removed from the mother and placed with her former partner. The mother was ultimately successful.

Baroness Hale concluded:

I am sad to see these two women, who deliberately brought these children into the world for them to share, and who both love and want the best for them, locking themselves into the same sort of battles that, sadly, we so often see between mothers and fathers. I hope that they can now move on from this dispute into a happier and more co-operative future for the sake of their children.

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