FACULTY OF LAWS FORMATIVE ASSESSMENT COVER SHEET NAME OF STUDENT: Janene Loke SUBJECT: Family Law TUTOR: Noam

Peleg TUTORIAL GROUP: C TITLE OF ASSIGNMENT: Problem question DATE RECEIVED: DATE RETURNED TO STUDENT: MARK: COMMENTS:

FEEDBACK

INDIVIDUAL DISCUSSION GROUP DISCUSSION ESSAY/PROBLEM QUESTION ASSESSMENT FORM COMPLETED INDIVIDUAL WRITTEN FEEDBACK (SEE ABOVE)

A. With regards to Belles parentage, a distinction must be drawn between legal parenthood and parental responsibility. Legal parenthood confers a fundamentally important status on both parent and child, making the child a member of the parents family and bringing with it a core bundle of rights and responsibilities. In the context of natural reproduction, English law has traditionally placed the greatest emphasis on the genetic link between parent and child, as exemplified by B v B and F (No 1).1 However, developments in assisted reproduction have posed challenging new questions where the genetic, gestational, and social parents may be different people. Belle was conceived using in vitro fertilisation using a donor egg and donor sperm, which means she has no genetic connection with Elif, George, or Michael. The Warnock Committee considered that in the interests of certainty the gestational mother should be accorded the legal status of motherhood. This recommendation was enshrined in s33(1) of the Human Fertilisation and Embryology Act 2008, where the woman who is carrying or 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. Egg donation is regarded as absolute: no legal rights or duties attach by virtue only of her genetic parentage. Hence, Elif is regarded as Belles only legal mother. Determining paternity is considerably more complicated. Provisions in the HFEA 2008 apply since the condition set down in s34 is satisfied: Belle has been carried by a woman as a result of the placing in her of an embryo or of sperm and eggs. S41(1) specifically provides that the sperm donor is not Belles father as he donates sperm for the purposes of treatment services. As unmarried fathers, Michael and George are dealt with under ss36-38. S36 confers legal parenthood on a man who is neither related to the child by blood or by marriage to the childs mother, provided the fatherhood conditions are satisfied. S36(a),(c), and (d) are satisfied as Elifs fertility treatment was undergone at a licensed clinic (assuming the

[1969] P 37

treatment was administered in the United Kingdom), both Michael and George are alive at the time of insemination, and both did not contribute sperm to the creation of the embryo. Additionally, the two putative fathers must satisfy the agreed fatherhood conditions set out in s37, which establishes a straightforward process of notification: the mother and the putative father must both have notified the licensed provider in writing that they consent to the man being treated as the legal father of any resulting child. Michael cannot be regarded as Belles legal father, since contrary to s37(1) he has not given notice in writing stating that he consents to being treated as the father of any child resulting from treatment provided. While George consented to the first cycles of treatment, he had separated from Elif by by the time Elif conceived Belle. Similarly in Re R (IVF: Paternity of Child),2 the unmarried partner consented to becoming the legal father of any child born as a result of the fertility treatment undergone by the mother, but the mother failed to inform the clinic upon successful implantation that she had separated from her unmarried partner. The House of Lords held that where the consenting couple separates before a successful implantation takes place, the joint enterprise of fertility treatment ends, and the man is not the legal father of the resulting child. Although Elifs IVF treatment started out as a joint enterprise, the joint enterprise of fertility treatment had ended by the time the successful treatment had begun, because by that stage Elif and George had separated. Thus George is not the legal father of the resulting child. In the eyes of the law, Elif is Belles only legal parent. B. A doctor can provide treatment to a child which he believes to be in the childs best interests if and only if the child is competent and consents to the treatment, or those with parental responsibility consent. Belle is not yet 16, and hence her consent to the abortion cannot automatically be effective as it would be if (she) were of full age vis--vis the Family Law Reform Act 1969 s8(1).

[2005] UKHL 33

As Belle is still 14, we must determine whether Belle is Gillick competent because if she is not, her views will carry very little weight save as one of the factors in deciding what will be in her interest. The House of Lords in Gillick v West Norfolk and Wisbech Area HA3 held that even a child under 16 could be competent to consent to medical treatment if he had sufficient understanding of the issues even if it conflicts with the childs welfare (Mabon v Mabon4). Whether a child has sufficient understanding and intelligence to make a particular decision is an issue of fact, depending on the complexity of the issues involved, and the childs emotional and intellectual maturity. Gillick applies to the provision of all advice and treatment to children in relation to sexual matters, including abortion5, as held in R (Axon) v Secretary of State for Health.6 First we must consider whether Belle understood the medical issues involved. As the Court of Appeal emphasised in Re R (A Minor) (Wardship: Consent to Medical Treatment)7, a child would need to understand the proposed treatment, the consequences of the treatment, and the consequences of not giving the treatment. For example, in Re L (Medical Treatment: Gillick Competency)8, the child was found not competent because she did not understand exactly what would happen to her if the treatment was not provided. In this case, Belle is mature for her age and she may, therefore, be able to show that she understands the medical issues around the abortion. Belle must understand not only the medical issues but also the moral and family issues involved. In Re E (A Minor) (Wardship: Medical Treatment)9, a child was found not to be competent because he did not appreciate his parents grief if he were to die. In this case Belle would need to show she appreciated the impact losing her baby would have on her parents. She would need to show she was aware of the potential impact on her family life if she were to consent to the treatment her parents wished her not to have. If the courts are willing to find Belle competent, Belle consents and that is the end of the story. However,

[1986] AC 112 [2005] EWCA Civ 634 5 R. Taylor, Reversing the retreat from Gillick? R (Axon) v Secretary of State for Health [2007] 19 CFLQ 81 6 [2006] EWHC 372 (Admin) 7 [1992] 1 FLR 190 8 [1998] 2 FLR 810 9 [1993] 1 FLR 386 4
3 4

since Belle is still too young to understand fully the consequences of such a decision, it is likely that she will be deemed incompetent to consent to the abortion. Assuming Belle is not Gillick competent, the ability of Angela, Elif and Michael to make decisions concerning Belles planned abortion depends on whether they have parental responsibility over Belle. Although largely undefined in the Childrens Act 1989, parental responsibility gives an individual the power and authority to make decisions regarding the childs upbringing. The CA does not directly define the scope of parental responsibility, it includes the right to consent to medical treatment.10 Parental responsibility is conferred automatically on Elif as she is Belles mother. Elif has the right to consent to the abortion on Belles behalf, and without her consent doctors cannot perform the abortion. Unmarried or social fathers must acquire parental responsibility in accordance with s4(1)(a)-(c). Michael may acquire parental responsibility by jointly registering Belles birth, agreeing in a prescribed form, or applying to the court for a parental responsibility order. Until he has done so, Michael has no parental responsibility over Belle. However, it is not necessary for a person to have parental responsibility to be entitled to take action in a childs interests. Section 3(5) provides that a person who has care of a child without having parental responsibility may do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the childs welfare. Michael and Angela can both be regarded as people caring for a child in the parents absence, and may, for example, arrange emergency medical treatment. But while the provision legitimizes short-term and emergency measures, the scope of the present provision is not clear. It is unlikely that it will cover abortion authorization since it is neither short-term nor an emergency. Thus, Angela and Michael are unlikely to have any rights in the matter of Belles planned abortion. Although the general policy of the CA 1989 is that parents have responsibility for making decisions about their children, Elifs wishes as parent are not determinative. When a court is asked to determine any question involving the upbringing of a child, the welfare of the child is its paramount consideration. If the matter is brought before the court, as Ward

10

Re A (Minors) (Conjoined Twins: Medical Treatment) [2001] 2 WLR 480 5

LJ puts it in Re A (Minors) (Conjoined Twins: Medical Treatment)11, Parental right is subordinate to welfare. In that case the court exercised its inherent jurisdiction to override the parents refusal to consent to an operation that would result in the death of the weaker twin. Holman J made the same point more forcefully in An NHS Trust v MB (A Child by CAFCASS a Guardian Ad Litem)12, arguing that the wishes of the parents were wholly irrelevant to consideration of the objective best interest of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child/parent relationship. Thus it would be necessary for the court to weigh up all the benefits and disadvantages of abortion to calculate what would be in Belles best interests. Given Belles young age, her inability to care for a child, and her consent to abortion treatment, carrying on the pregnancy will most probably adversely affect her physical and emotional well-being, and the court is likely to rule that the abortion is in Belles best interests. (Word count: 1300)

11 12

[2001] 2 WLR 480 [2006] EWHC 507 (Fam)