Monday, January 28, 2008

A difficult and perplexing case

Family Law Week has just published a report of a most interesting and difficult case decided by the High Court last year.

TJ v CV & Ors [2007] EWHC 1952 (Fam) involved an application by the biological father for contact and parental responsibility orders in respect of his son, who is now part of his sister’s same sex family. He claimed that he, his sister and her civil partner (to whom he donated sperm) had agreed that he would have regular contact with his son, and a role in major decision-making, whereas his sister and her partner maintained that he was merely to have an 'avuncular role'. Mr Justice Hedley made no order as to parental responsibility, fearing that it would "raise false hopes in [the father] leading to frustration and will fuel all the fears of [his sister and partner] leading to conflict". He did, however, make an order for contact four times a year, to recognise his special status as uncle and biological father, but without giving him full parental status, which "would threaten [the sister and her partner] and would not be consistent with their autonomy as a nuclear family".

Mr Justice Hedley concluded: "I confess that I have found this a difficult and perplexing case. It has required the court to tread unfamiliar ground and to make decisions based on what at this stage must be tentative views about the future needs of [the child]. Nevertheless, I am satisfied that the order of the court best serves these needs as they are presently ascertained and understood. The concept of family is both psychological and biological and in my judgment a court would be unwise not have regard to both aspects."

Personally, I think that Mr Justice Hedley got it about right. The father is not just an uncle, but nor is he a parent, in the sense of a person who will raise the child.

5 comments:

  1. John,

    I wonder what would happen if the mother contacted the CSA.

    How can the judge have got it about right when, by law, the father has a financial responsibility, but he is denied any other role (in terms of responsibility)?

    STH

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  2. Hi STH,

    It is well established that paying child support gives that parent no rights in respect of the child. This must be correct, as the welfare of the child is paramount.

    ReplyDelete
  3. John,.

    I'm a litle puzzled by your response, as my comment was about responsibilities, and not rights. As you must know from other posts, I wouldn't for a moment disagree that the welfare of the child is paramount.

    STH

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  4. It's all a question of terminology. The Children Act uses the term 'parental responsibility', but defines it as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property". Hence, parental responsibility includes rights, and this was the reason I used that word. The judge clearly felt that the welfare of the child would not be best served by the father sharing parental responsibility. That being the case, it would make no difference if the father paid child support.

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  5. I'm sorry, John, I probably shouldn't have left my original comment, which was really a knee-jerk reaction.
    As you know, I liken the situation where, as far as the law is concerned, a father has a financial responsibility, but no rights whatsoever, to that which supposedly led to the American War of Independence (i.e. no taxation without representation).
    This particular case seems to be a 'half-way' situation between, on the one hand, an anonymous sperm donation and, on the other hand, a biological impregnation, and I accept that, as far as the bigger picture is concerned, the judge probably got it right in the circumstances.
    Nevertheless, the problem of the financial responsibility that goes along with sperm donation remains (and I promise not to post on the subject again!)
    cheers
    STH

    ReplyDelete

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