The concept of the traditional family has undergone considerable transformations, due to technological developments in reproductive technology and the emergence of a variety of social factors such as an increase in births from unmarried parents, an escalation in family breakdown and the surfacing of alternative parental partnerships and parent-child relationships. Most notably, this has created uncertainty and incongruity in regards to the importance given to the link between a child and a natural parent in parental disputes concerning the upbringing of children, known as private law cases.
This essay will assess this essential ambivalence rooted in the law through an account of the traditional view on the natural parent presumption, an examination of the significance of status quo and the overall paramount consideration that is the welfare of the child. The significance of the natural presumption Previously, the courts have promoted the natural parent presumption. The concept was explained as the prima facie right of a child to an upbringing wherever possible by the surviving parents who gave it life.
The overall question in court was whether there were any convincing factors to override this ight. Lord Oliver of Aylmerton in Re KD (A Minor) (Access: Principles) emphasised that the natural bond between a parent and his child gives rise to universally recognised standards and these shall not be unreasonably interfered with at all unless the welfare of the child is threatened . This natural parent presumption seemed to be regarded as the most suited preference, regardless of what the parent has to offer to the child.
Lord Templeman in Re KD (A Minor) (Ward: Termination of Access) stressed this approach, “it matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, rovided the child’s moral and physical health are not endangered. ” It appears the courts believed that “public authorities cannot improve on nature” and respecting the natural and biological bond between parent and child wherever possible was as far as their legal power could take them.
The significance of the child’s status quo The natural parent presumption is being reconsidered and has been reassessed by important recent cases such as Re E-R (A Child) and Re G (Children)(Residence: Same-Sex Partner). Child law cases have established that the status quo of the child – the resent, existing state of the family situation at the time the case comes before the court – is given as much consideration in determining the welfare of the child. Re E-R (A Child) was an appeal against an arrangement order for a child to live with her natural father following her natural mother’s death .
The child T had been in the care of a friend of the mother, a friend she had appointed as testamentary guardian . The Court of Appeal held that the judge had conducted his analysis of the child’s welfare and best interests on the single basis that there is a natural parent presumption in existence under UK law. The Court of Appeal dismissed the idea that if, all other things were equal, a child is best off in the primary care of his or her natural parent.
This case illustrated the contemporary conflict in law between the traditional natural parent presumption and the significance of the length of time that a child has been living with a person. Lady Justice King held that in proceedings there is as much of a presumption in favour of a natural bond between parent and child than there is in favour of the status quo of the child. As Lord Justice Balcombe observed, it must be conceded that in ases of custody of small children, the child’s stability must be protected and “as a working rule, one does not disturb the status quo unless there is a good reason to do so. The case of Re G (Children)(Residence: Same-Sex Partner) addressed the degree of importance to attach to the biological relationship between a parent and his child. The difficulty of the case was its unusual circumstances, questioning the idea of a natural parent within more diverse family units. The facts were that the biological mother sought to overturn the Court of Appeal’s ruling on primary care in favour of her ex lesbian partner. Baroness Hale emphasised that the High Court and Court of Appeal solely focused on the mother’s behaviour and had failed to consider the significance of the biological tie between mother and children .
The judgment illustrates the conflict created by the natural parent presumption. Lady Justice Hallet was very concerned with the proposition of removing the children from the primary care of their only identifiable natural parent. She acknowledged the emergence of social factors such as the dynamic of this particular family, “mindful as I am of the changing social and legal climate” , but confessed that she ttaches, more so perhaps than others, a greater significance to the biological aspect of this case. The natural parent presumption seems to prevail.
Furthermore, Baroness Hale held that the unusual circumstances distracted the courts from “principles of universal application” . The choice of wording leads to suppose that, even if the legal profession does not formally acknowledge the reality of a biological parent presumption, it appears to be heavily influenced by it and inclined to uphold it: “the fact that CG is the natural mother of these children in every ense of the term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what is best for them now and in the future. From these cases and the existing case law, there seems to be an underlying conception that, in general, children tend to thrive when brought up by parents to whom they have been born. In the situation of a same-sex couple’s decision to have a child together, questions prevail regarding the outcome for a non- natural parent in the event of a relationship breakdown. It seems evident that the legal profession will be further hallenged, as family dynamics continue changing.
It was held that the children should be placed in the primary care of the partner, establishing that both mothers raised the children and therefore the natural parent presumption applied to them both equally, according to Lord Justice Thorpe. The welfare of the child The leading law that guides courts on children matters, the Children Act 1989, triggered the development of a set of presumptions, including the natural parent presumption, for the courts to rely upon when interpreting the welfare principle. However, the recent years have demonstrated a shift from hese presumptions to a more case-specific attitude.
The Children Act 1989 states in its first section that “when a court determines any question with respect to… the upbringing of a child… the child’s welfare shall be the court’s paramount consideration. ” The courts are now more inclined to assess the particular facts of a case in order to reach a verdict regarding the best interests of the child in his specific situation. This is a vast improvement in the law; cases brought before the courts are never typical, each carrying a different set of unusual facts nd this requires a more hands-on approach.
This adjustment seems to represent much more the essence of the Children Act, in particular section 1 subsection 1 stating the central principle of child law and section 1 subsection 3 setting a list of factors also known as the welfare checklist to be considered when deciding what is in the child’s welfare. The link between a child and his natural parent still holds importance in the law but it is first and foremost dependent on the welfare of the child. This adjustment has been illustrated in cases such as the case of Re 3 (A Child).
The Supreme Court unanimously re-established the central message in Re G (A Minor – Custody) that the best interests of the child are paramount consideration in determining the question of H’s residence. The case established that the bond between the child and his grandmother who had brought him up since birth was too significant to his welfare, and breaking it would create a threat to his current stability . The main misconception attached to the natural parent presumption is that a child has the right to be brought up by his biological parents.
The reality is that parenthood has an impact nly as a contributor to the welfare of the child and that is the only consideration the courts will uphold. In assessing where H’s best interests rested, Re B (A Child) established that the status quo of the child was of greater importance than his biological tie with his father. There are criticisms of the welfare principle and it has been argued that it fails to give any weight to the interests of adults. It must be conceded that there is a range of interests at stake in decisions of this nature and perhaps the courts should hear and consider the needs and interests of all family members .
Furthermore, it is extremely difficult to predict how adequately the parties will act and there is an evident discrepancy in the values of what constitutes an ideal reasonable parental figure. The principle has been criticised for the general uncertainty it fosters; courts have the ultimate power to decide what is in the child’s welfare. As established earlier, the natural parent presumption has not been formally acknowledged, however if it were it could constitute one of many alternatives to the principle of child welfare.
But ultimately, presumptions are based on assumptions of what is onsidered to be good for families in general, and as mentioned previously each case has its particular set of unusual circumstances. Moreover, this uncertainty can be appreciated as a strength, responding to the individual needs of each child. The welfare principle recognises the children’s vulnerability and reminds separated parents to place their child’s needs above their own . If it so happens that the child is in need of being under the primary care of his or her natural parent then the court will reach a verdict accordingly but ultimately the child has fewer resources, material psychological and relational, than adults and his welfare therefore appears to be child law’s paramount consideration. On the whole, every other factor is weighed up in relation to this aim and is only relevant in that it affects the progress of this aim.
Conclusion – The law has stressed the importance of a link between a child and his or her natural parent in private law cases in the past and even though the natural parent presumption is not openly recognised, judges appear to be inclined to uphold it or at the very least heavily consider it in order to reach a verdict.
The emphasis on the importance of natural parenthood ha highlighted by Lord Nicholls: “a child should not be removed from the primary care of his or her biological parents without compelling reasons. It must be conceded that society constantly evolves, with social factors such as unmarried parents, familial endings, and alternatives to the traditional concept of a family unit. Therefore it is no surprise that concepts such as the status quo of the child have been recognised in recent cases such as Re E-R (A Child), Re G (Children)(Residence: Same-Sex Partner) and Re B (A Child) as more significant to a child’s welfare than his biological link with his natural parent.
But one must keep in mind that each case, especially in child law, provides an extremely peculiar and delicate set of facts and circumstances. The singularity of each case renders it challenging to establish the exact degree of importance given to the natural parent presumption, however it can be established for certain that it is at least as much a factor as any other when determining what is in the child’s welfare.