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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

03 JUN 2015

Genes or Jeans? The importance of the genetic relationship when evaluating a child's best interest

Alex Laing

Pupil Barrister

Genes or Jeans? The importance of the genetic relationship when evaluating a child's best interest
The winds of change blow gustily. The once-solid ideal of the traditional family has become increasingly supple, re-wrought and re-modelled with time. Central to this is the issue of parenthood.

Nowadays, practitioners might ask: when deciding a child arrangements order (CAO), how do we balance the competing demands of the genetic parent and the social or psychological parent? Do we still begin with the presumption that a child's interests are best met by her biological parents?

This article shortly examines the theme. Part I traces the progression of the idea of 'natural parenthood' in private children law. Part II provides a case study to assist practitioners in deploying the 'natural parenthood' principles to a non-parent-carer case (where, say, grandparents are the parties in a CAO application). 

Part I – 'natural parenthood'

The starting point

In any determination of a child's living arrangements, the child's welfare is the paramount consideration, with particular regard had to the 'welfare checklist' (ss 1 and 3 of the Children Act 1989).

Genetic link between child and parent-carer: the 'natural parenthood' principles

Case law in this area has focussed on the importance of the genetic link between a child and his parent-carer.1

Initially, confusion arose from the judgment of Lord Nicholls in Re G (Children) [2006] UKHL 43, [2006] 2 FLR 629, and in particular his assertion that:

'In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and so, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason.' (Emphasis added)
The true import of this judgment was subsequently misunderstood, with undue emphasis placed on natural parenthood (para [2], Re B (A Child) [2009] UKSC 5, [2010] 1 FLR 551).

In Re B, the Supreme Court took the opportunity to clarify the law, and reiterate its correct application. In particular, that:

'It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is the best interests of the child, it must be examined for its potential to fulfil that aim.' (para [37], my emphasis)
The genetic relationship between a child and his parent-carer has been afforded legal significance as one aspect of a broader discussion of 'natural parenthood' – indeed, in Re G Baroness Hale firmly placed the competing claims in relation to 2 children of a biological mother, and a biological mother's ex-partner, within the context of 'natural parenthood'.

It is this question, as to the appropriate weight to be attached to 'natural parenthood' when evaluating a child's welfare, that the courts have been considered.

In Re G, Baroness Hale delineated the three ways in which an individual may become a 'natural parent' of a child: 'genetic parenthood'; 'gestational parenthood'; and 'social or psychological parenthood'.

'Genetic parenthood' is defined as the provisions of the gametes that produce the child. Its significance to an evaluation of the child's welfare is five-fold:

a. A parent's knowledge that a child is 'his' child can give birth to a very special sense of love for and commitment to that child;

b. That love and commitment will be of great benefit to the child;

c. The child will also reap the benefit of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up;

d. A wider family's knowledge that it is 'their' child can give birth to similar feelings of love and commitment, perhaps especially in grandparents;

e. The child will gain from this too (para [33], Re G).

'Gestational parenthood' flows from the conceiving, bearing and breast-feeding of the child, which tends to foster a very special, and unique, relationship between mother and child (para [34], Re G).

'Social or psychological parenthood' is broader, in that it encompasses those who are neither the child's mother or father. It grows through continuous day-to-day interaction, companionship, interplay and mutuality, which fulfils the child's psychological needs for a parent, as well as the child's physical needs (para [35]). Its significance lies in its very characteristics, namely providing for the child's needs, initially through feeding, nurturing, comforting and loving, and later by guiding, socialising, educating and protecting (para [35], Re G).

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Part II – case study

How do we apply this to the non-parent-carer case? A case study for practitioners

Let us extend this reasoning to the non-parent-carer case. A contemporary example:

A toddler's (T) parents are not on the scene. She has been placed in a shared care arrangement with her maternal grandmother (MGM) and maternal grandfather (MGF). MGM is genetically related to T. MGF is not: he is T's mother's stepfather and looked after T's mother she was a young child, treating her as his own daughter. MGM and MGF are separated. MGM resides in Far Away Land; she has applied to the court for an order that T live with her there. She contends that, as T's biological relative, it would be in T's best interests to do so. MGF resists the application.

To start: In MGM's case, the impact of the genetic link between her and T will be felt only to the extent that it influences the factors detailed in the 'welfare checklist'. By the same token, the close nature of MGF's non-genetic relationship with T will hold sway only as far as it can be said to affect T's best interests.

In evaluating that impact, however, it may be possible to extend and apply the principles developed in cases concerning genetic links between children and parent-carers - the 'natural parenthood' principles.

A practitioner representing MGM might consider the following arguments:

a. The dicta in Re G can be applied directly to this case: Baroness Hale makes specific reference to a wider family's knowledge that it is 'their' child and the propensity of this knowledge to give birth to feelings of love and commitment, perhaps especially in grandparents (para [33], Re G).

b. Further or alternatively, it is not the provision itself of the gametes that suggests that the child's welfare would be promoted by being placed with his parent, rather it is the 'very special sense of love for and commitment to' (para [33], Re G) the child that is the driving force. On the present facts, it is a small step to extend this to the maternal grandmother, as a non-parent genetic relative.

c. Further or alternatively, the maternal grandmother is a 'social or psychological parent' to T, given her role in raising her.

d. In the event that the maternal grandmother breastfed T, then further or alternatively, the bond fostered in Baroness Hale's conception of 'gestational parenthood' (para [33], Re G) exists between the maternal grandmother and T, despite her not having conceived or given birth to T.
What of MGF? His representative should note the following:

a. The dicta in Re G can be extended to this case: given the care provided to T and her mother by the maternal grandfather, his position is such so that the wider family to which T is seen to 'belong' ought properly to be seen to include him too.

b. Further or alternatively, the "very special sense of love for and commitment to" T can be extended to the non-genetic maternal grandfather, on the same basis that it can be extended to the genetic maternal grandmother.

c. Further or alternatively, the maternal grandfather is a 'social or psychological parent' to T, given his role in raising her.


To conclude, when assessing the competing demands of the genetic parent and the social or psychological parent, their respective statuses should be examined for their potential to meet the child's needs. As explored in Part II, above, the same principles can likely be applied to non-parent-carer cases.

When evaluating a child's best interests, then, it is not only she who provides the genes who matters, but also she who buys the jeans.

1 Indeed, in Re B (A Child) [2009] UKSC 5, [2010] 1 FLR 551, where the dispute lay between the maternal grandmother and the genetic father, there was no mention of the importance of the maternal grandmother’s genetic relationship with her grandson.
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