8718627
Description
Flashcards by Winnie Robinson, updated more than 1 year ago
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Created by Winnie Robinson
over 7 years ago
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| Question | Answer |
| Contested Parentage Fathers | For married fathers, parentage arises automatically (Johnson v Ireland) under the presumption of paternity, pater est quam nupitae demonstrat. This presumption also applies for children born before a decree absolute of divorce is provided (Knowles v Knowles) For unmarried fathers, there is no presumption of paternity - but this can be rebutted by placing the father's name on the birth certificate Thorpe in Re H and A recognised the effects of new DNA technology, stating that 'paternity is established by science and not legal presumption' The presumption may be rebutted with other evidence, e.g race (Slingsbury), resemblance (C v C and C), or genetic characteristics (LC No.16) Re A (Minor): for a man to refuse sperm sample hints at parentage |
| Contested Parentage Mothers | Less of an issue proving maternity Lord Simons has stated 'motherhood is proved demonstrably by parturition' For unmarried mothers, there is a common law presumption of illegitimacy |
| Declarations of Parentage | Can be determined in two ways: 1. found in the course of proceedings, any judicial decision is a judgement in personam 2. a formal declaration of parentage binding for all purposes under s.55 FLA 1986 M v W: a declaration of parentage to biological parents did not affect the adoption of the child, thus parentage cannot be a replacement or substitute for parental responsibility |
| Birth Registration | Prima facie evidence of paternity Under the Births and Deaths Registration Act 1953 s.2: the mother, father, and s.42 HFEU must register child's birth within first 42 days an unmarried father or s.42 lesbian partner may be placed on register if: a. joint request b. request of mother c. either request on production of declaration by him d. written request either mother or father on reciepient of PR order |
| Parental Responsibility | Defined in s.3(1) CA 'all those rights, duties, powers, responsibilities and authority which a parent has over his child' Can be contrasted to Scot law where parents have a duty to maintain a personal relationship with their child - Child Act 1995 |
| Parental Responsibility Main Provisions | S.2-3 CA 1989 Married Couples: under s.2(1) fathers will automatically have PR Unmarried couples: mother but not father will automatically have PR (s.2(2)). Under s.2(2)(b, an unmarried father can obtain PR in these ways: 1. named on birth certificate (s.4(1)(a) 2. marrying child's mother (s.1(2)(1)) 3. taking office as a formally recognised guardian under s.5 4. PR agreement with the mother under (s.4(1)(b)) 5. Through CAO for someone to live with (s.8(1)), if CAO to spend time with, court has the discretion to provide PR 6. Obtain a PR order under s.4(1)(c). Under s.4(2a) a PR order can be taken away by court order R v SoS for Social Security: it is implicit under s.4 that man has been found to be the father According to Re H (Local Authority) the degree of commitment shown by father, degree of attachment, and reasons for application should be considered In Re M Ryder stated that the court should consider the degree of commitment, prospect of enforceability, and the relation between child and applicant, e.g can be rejected in bad or abusive relationships (Re H) or DV (Re T) |
| Parental Responsibility Who May Apply? | Under s.4 the father can do a lot legally, e.g appoint guardians, adopt, remove from LA. Father's PR does not affect mothers standing, just means she no longer makes decisions about child unilaterally Detailed scheme of who may apply is set out in s.10 CA, and split into those who are able to apply without leave and those who must seek leave of the court before applying |
| Parental Responsibility Who May Apply? Without Leave | Parents, Guardians, Step-Parents, who have PR virtue of s.4A, and those named in a CAO order under s.8(1) There is an exception to require to seek leave for CAO relating to any person whilst a special guardianship is in force For step parents, must get acquisition of PR through S.4A For lesbian partners, must get acquisition of PR through S.42 HFEA. S.42(1) where a child have a parent virtue of 43, that parent shall acquire PR if (a) she becomes registered (b) she and child's mother make an agreement (c) court orders |
| Parental Responsibility Who May Apply? With Leave | Thought process of need for leave is the lack of direct and close connection with the child Local authorities, professional organisations concerned for the child, foster parents who has been FP in last 6 months and has consent of LA, unless relative of child or child has been living with then for a year or more |
| Parental Responsibility Who May Apply? With Leave Leave Criteria |
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