Paying for Natural Parenthood
On 16 June 2010 at the Children Law and Practice Conference, Madeleine Reardon spoke about the meaning and significance of "natural parenthood". Coincidentally, the same day Moylan J gave judgment in the case of T v B 2010 EWHC 1444 (Fam) as to whether the applicant mother's former lesbian partner was a "parent" for the purposes of a financial application under Schedule 1 Children Act 1989.
The couple had cohabited for 13 years until 2007 but were not civil partners. In 2000 a child was born to the mother following artificial insemination on their joint application. Following their separation the former partner (R) applied for contact and residence and a shared residence order was made giving R parental responsibility.
Paradoxically, the mother asserted that R was a parent and that she had a financial responsibility towards the child, whilst R denied being a parent for this purpose. The mother's counsel argued that parenthood had a wide definition and financial responsibility for a child should be a fact-sensitive, discretionary, welfare-informed decision. Whilst acknowledging that R was the child's social and psychological parent, Moylan J disagreed with the mother's argument. Parenthood for the purposes of Schedule 1 of the Children Act depends purely on status as conferred by statute.
Not being civil partners, the extended definition of parent in the Children Act (in respect of a child treated as a child of the family) did not apply to R. Consequently, while a woman who enters a civil partnership with the mother of an existing child could be financially responsible for that child, she would not be so responsible had they jointly "commissioned" the birth of the child but with no civil partnership. Had an unmarried heterosexual couple agreed to AI, the consenting male would have had the status of the child's father under HFEA 1990.
Of course post HFEA 2008 if the agreed female parenthood conditions are met, the mother's partner will have the status of the "other parent", which will include being a parent for Schedule 1 purposes. But this is not retrospective and so there remains a gap. The law lags behind reality.
I agree (for what it is worth) with Moylan J's statutory interpretation, I do not think he could have reached any other conclusion, and legislation should be the basis for financial obligations. It would be far too broad to impose a financial responsibility on a "de facto" or psychological parent or on every person with parental responsibility. But shouldn't an evidenced mutual agreement to bring a child into the world and to parent it give rise to an obligation to support that child financially? Has that couple not taken more of a conscious decision to be parents than a one night stand that results in accidental pregnancy? Did HFEA 2008 not go far enough?
I do not know what the financial position of the respective women was in this case, and the potential quantum of the mother's claim. Linking physical parenting in the sense of contact/residence and financial support is an eternal conundrum. Unsurprisingly Moylan J did not comment as to whether he thought R ought morally to be making some financial contribution. It might be remarked that while R sought to be recognised as a parent for s 8 purposes, she appears to have (successfully) fought to avoid the financial consequences of parenthood. But is that the full story? Perhaps R had put forward a perfectly reasonable financial proposal which the mother rejected. Perhaps a Schedule 1 claim was entirely inappropriate in the circumstances. It is only to be hoped that the child's relationship with both parents is not undermined by semantics.
Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.