THE LAW BEHIND… Being a parent

Theres more to being a parent than nappies and school league tables especially when the law becomes involved. Lawyer 2B asked the experts to explain where the law stands on some tricky parenting issues


THE LAW BEHIND... Being a parentResidence and contact

Residence and contact disputes have become big news recently, not least because of the activities of Batman and other members of Fathers 4 Justice. They say the law is unfair to fathers and denies them their rights. But is that true?

Intrinsically, the law does not favour mothers over fathers. The law regards the childs best interests as being of paramount importance more important than the mothers or fathers rights. When a court orders that a child should live with their mother, this usually reflects the fact that the mother has been the childs main carer and has provided the stability in a childs life, and so the decision is often in the childs best interests.

However, it is in relation to the issue of contact that the system has sometimes, to quote one High Court judge, failed father and child. When disputes have to be resolved in the courtroom, judges make contact orders in favour of fathers in virtually every case. The difficulties that sometimes arise are in enforcing contact orders against mothers who are determined to flout the court and deny the father contact. Recently, the Government published a green paper recognising the importance of fathers in their childrens lives and examining ways in which problems in the system can be resolved.

Most divorcing parents make successful arrangements for their children between themselves without recourse to lawyers or the courts. Sometimes there is a need for lawyers to become involved to help resolve disputes through negotiation or by referral to mediation services. Unfortunately, though, there are always some cases destined for the courtroom, and these may involve mental health issues, child abuse or alcoholism. Every case has to be approached with tact and understanding and aggressive lawyer tactics have no place here.

Kush Modgil, solicitor, Manches

Paternity/maternity leave

One year on from its introduction, only one in five fathers takes paid paternity leave. Are they bothered about their macho image or changing dirty nappies? Career worries are a more likely explanation.

In the case of law firms, they are typically managed by older males, many of whom find it hard to understand that newer fathers want or are expected to take a more active role in their childrens upbringing. Men may come under pressure to put the client first if the birth coincides with a deal or trial. They may fear that taking paternity leave shows a lack of commitment which may impact on career prospects. Relying on asserting rights in the Employment Tribunal is not attractive if you want to avoid a reputation for being difficult.

Financial concerns are also an issue. Unless the employer tops it up, paternity pay is 102.80 per week and lasts for a only fortnight. Taking paid annual leave is preferable, especially as the mother may be on reduced pay too.

Notification requirements can trip you up. Fifteen weeks notice of the due date of birth is required. I forgot to tell my husband of the deadline, for example, but his employer let him take leave anyway but be warned, not all are so lenient.

The Government is considering extending paid paternity leave to up to six months. Unless shared responsibility is more widely accepted by all age groups and financial incentives are available, my guess is the take-up will be even lower.

The Government is considering extending ordinary maternity leave and pay from six to 12 months. Many women also do not take their full entitlement to leave because of career concerns. Some employers view taking a long break as a lack of commitment, especially if the woman returns part-time. Where pay and status are measured against working experience, a womans career will inevitably lag behind peers who have not taken leave. Promotions to partnership may focus on the need to bring in new business. Even after only a six-month break, momentum in generating instructions through client recommendations will be diminished and existing clients will have built relationships with colleagues or will have changed personnel. Women can find themselves with fewer existing clients and less time to spend getting new ones. One of the fundamental questions for the profession, which is now attracting more female than male applicants, is how the careers and promotional prospects of women who have children can be managed.

Joanna Chatterton, senior associate, Fox Williams

Child surrogacy

In the last 30 years surrogacy has grown and has given hope to numerous childless couples. The last success story to hit the news was the birth of twins Neal and Nandini Nagla to their maternal grandmother, Rhadha Patel, in India.

In July 1978 the first child was born through in vitro fertilisation. The Human Fertilisation Embryology Committee looked at its implications. Following a rush of publicity (the baby for cash scandals in 1985), the Surrogacy Arrangements Act 1985 came intoforce,whichcriminalised commercial surrogacy arrangements, followed by the Human Fertilisation & Embryology Act 1990.

The 1985 act (following the Baby Cotton case) went on to define surrogacy arrangements that were permitted by law. The 1985 act made various acts in connection with surrogacy criminal offences, such as the handing over of cash to obtain a baby.

The 1990 act gave guidance about surrogacy arrangements, giving the commissioning parents the ability to apply for a Parental Order. A woman who gives birth to a child has automatic parental responsibility, which can be extinguished only in exceptional circumstances. A father gets parental responsibility only in certain circumstances, unless he is married to the mother. Surrogacy can be fraught with difficulties where the surrogate mother is married but not to the donating father. An agreement by the surrogate mother to extinguish parental responsibility is unenforceable. Section 30 of the 1990 act allows a married couple to apply for a Parental Order, allowing them to be treated as natural parents. They have to show at the time of the application that the child was living with them, that the application is made within six months of the childs birth, that both parents are over 18 and that the surrogate mother and father agreed to the Parental Order being made unless they cannot be found. The court has to be satisfied that no money or benefits had been arranged or received save reasonable expenses.

If the commissioning parents separate prior to the birth of the child, the child could remain with the natural parents or the surrogate mother could choose to place the child with either of the commissioning parents for adoption, but unless placed under a High Court Order or placed with a relative, the placement is illegal. An option open to the commissioning parents would be to seek care under the wardship provision of the High Court or to apply for (with leave of the natural mother) a Residence Order.

Vanessa Priddis, partner, Foot Anstey Sargent

Child abduction

When parents separate, emotions run high. Issues such as who the child (or children) will live with and how often the other parent will be able to have contact with them frequently result in disputes.

This is even worse where the parents are from different geographical backgrounds and a parent sometimes abducts their own child to take them to what they perceive as home.

If the mother and father were married when the child was born, they both automatically have parental responsibility, but if not, the father does not automatically have this right unless he is named on the birth certificate, and only in relation to births after 1 December 2003. Having parental responsibility for a child does not mean that a parent can take the child abroad without the other parents consent. Only a person with a residence order for a child is entitled to take the child abroad for up to one month. A common scenario occurs where children are taken abroad for a holiday by one parent, with the consent of the other, and are not returned. In 2003, 376 cases relating to alleged child abduction were referred to the Official Solicitor.
The UK is a party to the Hague Convention on the Civil Aspects of International Child Abduction. This convention should, in theory, mean that the courts in member countries can order the return of a child to the UK. In practice, it can sometimes be difficult to get the child back. It depends on the convention country. It is even more difficult when the child is taken to a non-convention country.

Under the Hague Convention, the views of the child are taken into account. If the child strongly objects to being returned this may carry some weight with the court, depending on the childs age.

In practice, the best solution to child abduction is to ensure that the child is not wrongfully removed in the first place, but as a quick glance at newspaper stories and law reports on child abduction reveals, this is easier said than done.

Tanya Roberts, associate, Charles Russell

Human cloning

The development of embryonic stem cell research and its relationship with cloning has sparked great controversies, some of which have precipitated in challenges before courts.

In the UK, the National Pro-Life Alliance has tested the validity of the UK Governments long-held position that the primary legislation was sufficient in scope to encompass any proposed development of human cloning. However, the Government has acknowledged that the technique used in the creation of Dolly the Sheep, based on cell nuclear replacement (CNR), was different from the procedure as set out in the Human Fertilisation and Embryology Act 1990. The case brought before the English courts, which was subsequently settled in the House of Lords, focused on whether the process of CNR falls within the scope of the primary legislation.

In December 2001, the UK enacted the Human Reproductive Cloning Act 2001, which prohibits the placing in a woman of a human embryo which has been created otherwise than by fertilisation. However, experimental research on embryonic stem cells continues to be regulated by the UK Competent Authority.

In August this year, UK regulator the Human Fertilisation Embryology Authority (HFEA) gave permission to a team of clinical scientists at Newcastle University to study how to clone early human embryos efficiently and use them as a source of stem cells with the potential to develop into any type of medical treatment and to understand disease. The HFEA emphasised that the approval was conditional upon the work being carried out for research only.

Lincoln Tsang, partner, Arnold & Porter

Child adoption

Adoption is the legal and emotional acceptance into a family of a child not born to the parent(s).

An Adoption Order under the Adoption Act 1976 confers parental responsibility on adoptive parents and extinguishes parental responsibility vested in anyone else.

Usually, adoption is organised by adoption agencies set up by local authorities and some charities, eg Barnardos. It is their responsibility to put children with suitable adopters. This is done after extensive enquiries about the child, the natural parents, the extended family and prospective adopters. There are strict criteria. Normally, it is only possible to place a child if the natural parents have asked for adoption or the court has approved the plan in the course of care proceedings. After placement, the adopters apply to the court for an Adoption Order. There are stringent formal and jurisdictional requirements and the child is usually separately represented. An Adoption Order can be made only if the court is satisfied that adoption will promote the welfare of the child throughout its minority, and each parent, namely each person with parental responsibility, consents or that consent should be dispensed with by the court.

The new Adoption Act 2004 (not yet fully implemented) makes a childs welfare central. The act will make substantial changes and will require the court to consider the wishes of the child and of other relatives. It will expand the group of persons who can apply to include step-parents, unmarried couples and gay couples. It will make other significant changes, including the need to consider contact with the natural family post-adoption. Provision is made for information about the process to be disclosed later.

Carolyn Usher, partner, Reynolds Porter Chamberlain