The two-parent model: logical or detrimental?

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If English law allowed more than two legal parents for children, it would simply add to the issues faced by families. This would bring unnecessary complexity to family law, further hastening the level of uncertainty in parental responsibility and the division of roles in parenting. However, when considering exponential changes in family norms and societal attitudes, there are concerns that the law is archaic and, more importantly, questions concerning its adequacy in protecting children’s welfare.

An analysis of the current legal position will assist in identifying the parts which would benefit from reform. This essay evaluates the current two-parent model; exclusion of polyamorous families within the law; existing issues surrounding childcare arrangements between two parents; and importance of biology in parentage – concluding that a reform would not be appropriate within these areas. Casting aside current issues surrounding surrogacy and same-sex parenting, it evaluates the impact of a three-parent model on children’s welfare, extra-jurisdictional law on legal parentage, and proposes a reform allowing more than two legal parents to strengthen child protection in cases of neglect.

Heteronormativity of two-parent model

For decades, the law has reinforced the heteronormative nuclear family – the wife and husband as the mother and father. This two-parent model reflected the traditional views of what society deemed constituted a family and has been the longstanding universal ideal followed by families to this day.

Although homosexuality has been socially accepted for a period of time, it was not until 2013 that same-sex marriage was finally legalised.[1] It is evident the law does not always reflect social views, as a change (or the absence of change) in the law does not affect people’s core opinions and values. At face value, the law’s delayed response to change is interpretable as its inability to accept homosexuality.[2] However, Murray argues there is a larger reasoning behind this, concerning same-sex couples’ capability of raising children. She argues that besides increasing visibility of same-sex co-parents, the Marriage (Same Sex Couples) Act 2013 reinforces compulsory heteronormative values of ensuring family stability – the importance of a child receiving support from ‘two parents’.[3] Similarly, Barker argues that the law permits same-sex marriage because the idea of a ‘monogamous life-long relationship between two people’ is maintained.[4] Her argument is interesting because it hinges on the idea that the law is biased towards heteronormativity. Since marriage is a social institution,[5] the underlying reason the law has been allowed to change is arguably the expectation that same-sex parents will continue meeting the heteronormative values of married monogamous families.

Single parentage has long been stigmatised for its non-conformity with social and legal norms. But more recently in Re Z (A Child),[6] s.54(1) and (2) of the Human Fertilisation and Embryology Act 2008 were challenged for its incompatibility with Articles 8 and 14 of the European Convention on Human Rights.[7] In 2016, the court allowed parental orders to be made in respect of single applicants (in the context of surrogacy),[8] contrary to the two-parent norm. With the law deviating from the heteronormativity of the two-parent model and progressing with social attitudes, the door has arguably been opened for it to, in turn, address the debate of multiple legal parentage.

Three-parent model?

Polyamorous families –

Some argue that a new family law evolution is blooming with the law’s progressing inclusivity. With same-sex marriage and assisted reproduction technologies already making changes to the legal landscape,[9] Marvel claims that polyamory will inevitably demand the legal recognition of multiple parentage.[10] Goldberg even suggests that if the adults can prove a long-term polyamorous relationship, a legal parent’s partner may become the third legal parent simply through adoption.[11] These may be true in some respects as children of polyamorous families will realistically have more than ‘two parents’ – psychological and social parenthood now play an equally important role.

However, they fail to consider how a three-parent model would work practically. Although statistics indicate a decrease, approximately 42% of marriages still end in divorce.[12] Haines argues that falling marriage rates do not offset the fact that divorce remains a problem in the UK.[13] A call for polyamorous family reform does not account for existing family issues the law is already struggling to resolve – for instance, disputes over parental responsibility and court orders determining the child’s primary carer in separation cases.[14] It remains unclear who the child would live with if the adults’ relationships dissolute – the biological, psychological or the potential third parent.

In 2018, a Canadian court (Newfoundland) in Re CC set precedent by declaring recognition of three unmarried adults as the legal parents of a child born in a polyamorous family.[15] Justice Fowler stated there was ‘no reason to believe this relationship detracts from the best interests of the child’ and to ‘deny the recognition of fatherhood […] would deprive the child of a legal paternal heritage’.[16] The fundamental reasoning behind this decision is seemingly the assumption that having both biological figures would be in the child’s best interests. When put to practice in English law, this principle is flawed and non-transferable.

Importance of biology –

From Re CC, there is an assumption that biology has significant importance in parentage. Although the conventional understanding of parentage is associated with biological links, modern viewpoints also involve social and psychological relationships, which questions the importance of biology.[17] Beside the heteronormative (biological and legal) parent, a parent may be a child’s biological, but not legal parent, e.g. a fertility clinic sperm donor,[18] or a surrogate mother pursuant to a s.54 parental order.[19] Conversely, a parent and child may be legally but not biologically related, e.g. in cases of adoption or if the non-biological parent is named on the birth certificate.[20]

Bainham supports this, arguing the question is not whether to prefer the genetic or social parent but rather how to accommodate both on the assumption that they each have distinctive contributions to make the life of the child.[21] Herring echoes this, arguing that parental status should be ‘earned by the care and dedication to the child; something not shown simply by a biological link’.[22] If English law allowed a third legal parent based on a ‘biological link’, and if it was beneficial for children to have both biological figures in their life,[23] it would be contrary to s.1(2) of the Surrogacy Arrangements Act 1985,[24] and arguably dangerously allow surrogates and donors to potentially claim for parental status. This parental claim could be contractually excluded, and English courts have generally ruled in favour of paternity and biological establishments for children to know their ‘true parentage’.[25] However, it is not a unanimous principle that can be applied to all cases,[26] and does not extend to allow the biological persons to remain in the child’s life.

Examining this further, the UK is the first country to legalise ‘three-parent in vitro fertilisation’ (i.e. mitochondrial replacement therapy)[27] – transferral of mother’s nucleus into a donor’s empty egg to later fertilise with the father’s sperm.[28] Despite the procedure requiring three adults’ DNA, it does not confer legal parentage to all. This is clear when the same concept is applied to surrogacy. Gestational mothers are always legal parents, regardless of genetic relation (e.g. in IVF surrogacy).[29] However, on establishment of legal parenthood, the surrogate-child legal relationship terminates.[30] The surrogate ‘mother’ is a mere vessel carrying the baby for the commissioning parents.

Allowing the biological figure to remain a legal parent would contradict the moral supposition that surrogates and donors are not parents and should not be expected to assume legal responsibility for the child,[31] arguably rendering s.54 parental orders useless. Additionally, if surrogates and donors were allowed to become part of the child’s life, this could potentially open the floodgates to countless parental claims, essentially creating a ripple effect where limitations would cease to exist. It is apparent biology has lost its traditional role in determining legal parentage. Consequently, the decision in Re CC simply cannot be applied to English law as, following Re B (A Child), a child’s welfare trumps biology.[32]

Child’s welfare –

Contrastingly, Marvel uses Fineman’s vulnerability paradigm to advocate the possibility of a three-parent model. Though she argues that the ‘surplus of care’ in three-parent family structures may mitigate the vulnerability of a child,[33] she mistakenly presupposes that more adults would equal more care for a child and that this single supposed benefit outweighs the more significant detrimental effects this arrangement may have – such as overlooking a parent’s quality of care, effectiveness of child discipline, and attention to the child’s safety, health and education. Additionally, her approach is flawed as single parents may be just as capable as two parents, demonstrating that parental quality trumps quantity.[34]

Smith submits an interesting counterargument to the three-parent model in relation to lesbian mothers,[35] arguing that whilst the biological mother’s position is secure, the psychological mother’s is not, as roles of non-biological parents are often not clearly established.[36] To add another adult would create further uncertainty – between the adults trying to compromise and adjust to parental roles, the amount of time and care placed on the child diminishes. This was the case in MA v RS.[37] Although the four adults were not in a polyamorous relationship,[38] this case illustrates the complexity of parental roles and how their disputes created significant emotional harm for the child involved.[39] Having contact orders between four adults undoubtedly added avoidable complexity to the child’s life – undeniably being detrimental to the child’s legal stability as well as, but not limited to, provision of care, their education, social life and endurance of emotional stress and trauma.[40]

As of now, it is apparent that reform in these areas is unnecessary. The current issues faced by the courts, complicated and undesirable as they are, concern relationships with two adults. Adding another potential parent would further complicate the stability of parenting roles and impose an impossible judicial burden.[41] But more importantly, it would shift the focus of care off children, negatively affecting those caught between disputes. Thus, there is good reason for the law’s continual adherence to a two-parent model in this respect.[42] Further, if legal parents are happy for more people to be involved, the Children Act 1989 provides sufficient options,[43] such as applications for parental responsibility agreements,[44] or obtaining parental responsibility through court orders.[45] Allowing a reform for more than two legal parents in these respects would be illogical and unnecessary.

Child neglect

It is apparent that in the case of a reform, it should be in the best interests of children as their welfare is paramount.[46] Though child neglect is a criminal offence, it remains the most prevalent but undetected form of child abuse, as there are often no physical signs until after a period of time.[47] Campaigns have actively called for law reforms to clearly set out the seriousness of emotional neglect and psychological harm,[48] and there have been plans to legislate a Serious Crime Bill to address the ‘outdated 1933 Act’.[49]

However, with increasing rates of child neglect,[50] and neglect offences doubling over the past five years,[51] perhaps it would make more sense to incorporate this pressing issue in a legal parentage reform – one with more practicality.

Setting shorter target proceeding time-frames would seemingly benefit children;[52] however, this is not the case in practice as average proceedings still last around 28 weeks.[53] Masson argues the law is taking the wrong approach – shorter proceedings would not necessarily benefit children if incorrect orders are issued, or children are placed with unsuitable adults.[54] Therefore, in cases of neglect, the law should focus on finding the right adults for the children.

The current law may be clear but is oftentimes inconsistent with rulings. Legal justice is not always societal justice. As legal parenthood can only be lost through adoption or a s.54 parental order,[55] children that suffer from parental neglect often get allocated to the foster care system – often to the child’s detriment. Gypen claims that foster care systems are, on the contrary, adequate in supporting children as agencies often continue to provide care even after the child leaves the foster system.[56] However, her statistics do not take into account realistic factors such as the quality of the placement, or consider the compatibility between the foster family and the child.

Aside from the legal aid cuts, there has been a 50% cut to local authority budgets over the last ten years,[57] resulting in cuts to protection services. As spending reduces, children are consequently provided with less support and oftentimes carelessly given poor foster home placements. This would arguably create an endless cycle of neglect, causing long-term paradoxical effects. Following Masson’s argument – not all foster parents are capable of adequately caring and supporting new children.[58] Rather than putting children into foster care with no sense of familiarity and stability, a reform to allow someone familiar to the child as their third parent could be beneficial. Since the child already has a presumably good relationship with the adult, it would be a less emotional and psychologically traumatic transition, and arguably, a good prevention of further child neglect.

Extra-jurisdictional law

There are now different jurisdictions that allow children to have more than two legal parents, reinforcing the idea that having three legal parents is possible. It would be beneficial to explore their applicability in addressing child neglect in English law. An amendment to the Dutch Civil Code allowed recognition of up to four legal parents across a maximum of two households – this included the birth mother, a person who shares a genetic relationship with the child or the life-companions of the people involved.[59] Certain Canadian provinces have also explored this issue: Ontario introduced a similar law allowing up to four intended parents – recognising the spouse of the birth parent (excluding surrogates and donors) of a child conceived through assisted reproduction as a legal parent, and the interests of the child must be paramount.[60] In British Columbia, the donor of a child born as a result of assisted reproduction cannot be an automatic parent unless stipulated otherwise.[61] As discussed above, Newfoundland has also recognised that a child may have more than two legal parents if the parents are in a long-term polyamorous relationship.[62]

Child’s best interests –

However, the jurisdiction that aligns most with the UK regarding the child’s best interests is California. In reaction to Re MC,[63] a California Senate bill was passed to allow a child, in appropriate cases, to have more than two legal parents.[64] Amending the Family Code, s.3040 states the court ‘shall allocate custody and visitation among the parents based on the best interest of the child’, which includes, but is not limited to, addressing the ‘child’s need for continuity and stability by preserving established patterns of care and emotional bonds’.[65] The key motivation is to protect children in the midst of adult disputes, parallel to the English family law principle emphasising the welfare of the child.[66]

Reform

Although the child’s welfare is of utmost importance, the concept is not always reflected in practice. In cases of abuse through omission, the law should allow a child to have more than two legal parents. However, it is important to establish strict requirements to accommodate the current laws and to prevent opening the floodgates. Taking the collective extra-jurisdictional approaches as guidance, the reform guideline is thus: only to be applicable when a child is found to be suffering from significant parental neglect; applicable to rare cases where the courts deem having more than two parents is ‘necessary to protect the child from the detriment of being separate from one of their parents’.[67] The child should only have parents from a maximum of two households,[68] having up to three legal parents. If the child is conceived through assisted reproduction, the donor cannot be the legal parent as biology should not play a significant role in this matter.[69] There must be proof of parenthood by intention, and the third parent must also demonstrate their capacity to care for the child, e.g. consistent bonding with the child in addition to performing parental duties over a reasonable period of time.

According to s.31(2) CA 1989, the court may make a care or supervision order if the child is ‘suffering, or is likely to suffer, significant harm’ attributable to the care provided to the child.[70] However, the statute does not define ‘significant’ – the deliberate lack of definition allows decisions to be made on a case-by-case basis under judicial discretion, with more flexibility in family law.[71] This should be similarly adopted by the reform.

Additionally, it is important to establish the difference between this reform and the loss of parentage through non-consensual adoption.[72] The court should preserve existing ties between children and their original parents – this arrangement should not be treated as a breach of the parents’ human rights as it is not for the purpose of replacing the original parents,[73] but rather to outline an alternative option for the courts and specific families to better protect their child in the midst of disputes and proceedings. The reform is an extension to the current law, requiring the potential third parent to consent to the arrangement, thus not burdening the potential parent. It does not take away the original legal parentage of the child – a new parent is simply added to the equation to address the issue of neglect accordingly.

Conclusion

Unlike the other jurisdictions, this reform is not for the purpose of social inclusivity, but rather for strengthening the protection of children. It is not a solution to eradicate child neglect; however, it would be an appropriate step forward to support and strengthen protection for neglected children. In addition to demonstrating the law’s increasing flexibility to ensure the safety and well-being of children, it would also be a legal defiance of the longstanding legal and social heteronormativity of the two-parent model. This reform allows a pragmatic alternative to the benefit of children, and is fundamentally in line with the goal of the current law and its core principles – that a child’s welfare outweighs any equality arguments regarding polyamory and biology, and should ultimately be the court’s paramount consideration.


[1] Marriage (Same Sex Couples) Act 2013.

[2] Peter Tatchell, ‘In a Few Years We’ll Wonder Why It Took Us so Long to Legalise Marriage Equality’ (The Guardian,16 October 2017) <https://www.theguardian.com/commentisfree/2017/oct/16/in-a-few-years-well-wonder-why-it-took-us-so-long-to-legalise-marriage-equality> accessed 13 December 2019.

[3] Melissa Murray, ‘Family Law’s Doctrines’ (2015) 163 University of Pennsylvania Law Review 1985, 2016.

[4] Nicola Barker, ‘Sex and the Civil Partnership Act: The Future of (Non) Conjugality?’ (2006) 14 Feminist Legal Studies 241, 319.

[5] Tsoaledi Daniel Thobejane and Janet Khoza, ‘Gender Role Expectations within the Institution of Marriage’ (2014) 41 Journal of Social Sciences 455.

[6] Re Z (A Child) (No 2) [2016] EWHC 1191 Fam.

[7] ibid.

[8] ibid.

[9] Stu Marvel, ‘The Evolution of Plural Parentage: Applying Vulnerability Theory to Polygamy and Same-sex Marriage’ 64(6) Emory Law Journal 2047, 2055.

[10] ibid.

[11] Abbie E Goldberg and Adam P Romero, Lgbtq Divorce and Relationship Dissolution: Psychological and Legal Perspectives and Implications for Practice (Oxford University Press 2018).

[12] ‘Divorces in England and Wales – Office for National Statistics’ <https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/datasets/divorcesinenglandandwales> accessed 13 December 2019.

[13] ‘Divorce Day: Why Are Couples More like to Split in January?’ (Evening Standard, 4 January 2019) <https://www.standard.co.uk/lifestyle/divorce-day-2019-january-split-relationship-marriage-a4030791.html> accessed 13 December 2019.

[14] Re G (Residence: Same sex partner) CA [2006] 1 FCR 436.

[15] Re CC (2018) NLSC 71.

[16] ibid 35.

[17] Re G (Children) (Residence: Same Sex Partner) [2006] UKHL 43.

[18] Human Fertilisation and Embryology Act 2008, s41.

[19] Human Fertilisation and Embryology Act 2008, s54.

[20] A. Bainham et al, What is a Parent? A Socio-Legal Analysis (Oxford; Hart 1999); Children Act 1989, s4(1)(a); Children Act 1989, s4ZA(1)(a).

[21] Bainham, ‘Parentage, Parenthood and Parental Responsibility: Subtle, Elusive, Yet Very Important Distinctions’ in Andrew Bainham, Shelley Day Sclater and Martin Richards (eds), What is a Parent?: A Socio-Legal Analysis (Oxford, Hart Publishing, 1999) 29 cited in Alan Brown, ‘The Attribution of Legal Parenthood within UK Law’ in What is the Family Law? The Influence of the Nuclear Family (Hart Publishing 2019) 108.

[22] Jonathan Herring, Caring and the Law (Bloomsbury Publishing 2013) 200.

[23] Re CC (n 15).

[24] Surrogacy Arrangements Act 1985, s1(2)(b).

[25] Mikulic v Croatia [2002] 1 FCR 720; Re F (Declaration of Paternity) [2007] EWCA Civ 7873.

[26] Re D [2006] EWHC 3545 Fam.

[27] Michael Le Page, ‘UK Becomes First Country to Give Go Ahead to Three-Parent Babies’ (New Scientist) <https://www.newscientist.com/article/2116407-uk-becomes-first-country-to-give-go-ahead-to-three-parent-babies/> accessed 10 November 2019.

[28] Catherine Weiner and Rebecca Clements, ‘Mitochondrial Transfer: The making of three-parent babies’ (Science In The News Harvard University The Graduate School of Arts and Sciences, 22 Aug 2018).

[29] Human Fertilisation and Embryology Act 2008, s33(1).

[30] Human Fertilisation and Embryology Act 2008, s54.

[31] Human Fertilisation and Embryology Act 2008, s36.

[32] Re B (A Child) [2009] UKSC 5.

[33] Martha Albertson Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010) 60 Emory Law Review 251, 255 cited in Marvel (n 8) 2086.

[34] Tracy McVeigh, ‘Single Mothers “Do Just as Good a Job as Couples”’ The Observer (19 July 2014) <https://www.theguardian.com/lifeandstyle/2014/jul/19/children-little-affected-by-lone-parenthood> accessed 10 December 2019.

[35] Leanne Smith, ‘Is Three a Crowd – Lesbian Mothers’ Perspectives on Parental Status in Law [in] Child and Family Law Quarterly’ (2006) 18 Child and Family Law Quarterly 231.

[36] ibid.

[37] MA v RS (Contact: Parenting Roles) [2011] EWHC 2455 (Fam).

[38] ibid.

[39] ibid.

[40] Nigel Lowe and Gillian Douglas, Bromley’s Family Law (Eleventh Edition, Oxford University Press 2015).

[41] Smith (n 35) 240.

[42] Julie McCandless and Sally Sheldon, ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form1’ (2010) 73 The Modern Law Review 175, 188.

[43] Andrew Bainham, ‘Arguments About Parentage’ (2008) 67 The Cambridge Law Journal 322, 345.

[44] Children Act 1989, s3; Children Act 1989, s4(1)(b); Children Act 1989, s4ZA(1)(b); Children Act 1989, s4A(1)(a).

[45] Children Act 1989, s4(1)(c); Children Act 1989, s4ZA(1)(c); Children Act 1989, s4A(1)(b).

[46] Children Act 1989, s1(1).

[47] Children and Young Persons Act 1933, s1.

[48] ‘Updated Neglect Law’ <https://www.actionforchildren.org.uk/how-to-help/support-our-campaigns/our-campaign-successes/neglect-law/> accessed 12 December 2019.

[49] Jacqueline Beard, ‘Calls for Reform of the Criminal Law on Child Neglect’ <https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06372> accessed 12 December 2019.

[50] ‘England & Wales: Child Abuse 2019’ (Statista) <https://www.statista.com/statistics/303514/child-cruelty-abuse-in-england-and-wales-uk-y-on-y/> accessed 12 December 2019.

[51] NSPCC, ‘Child Cruelty and Neglect Crimes Continue to Rise Every Year’ (NSPCC) <http://www.nspcc.org.uk/what-we-do/news-opinion/child-cruelty-neglect-crimes-rise/> accessed 20 December 2019.

[52] Children Act 1989, s32(1)(a)(ii).

[53] ‘Family Law Week: Average Duration of Care Proceedings Remains at 28 Weeks’ <https://www.familylawweek.co.uk/site.aspx?i=ed183970> accessed 12 December 2019.

[54] Judith Masson and others, ‘Achieving Positive Change for Children? Reducing the Length of Child Protection Proceedings: Lessons from England and Wales’ (2017) 41 Adoption & Fostering 401, 411.

[55] Human Fertilisation and Embryology Act 2008, s54.

[56] Laura Gypen and others, ‘Outcomes of Children Who Grew up in Foster Care: Systematic-Review’ (2017) 76 Children and Youth Services Review 74, 75.

[57] ‘Care Crisis Review Publishes Report Setting out Options for Change’ <https://www.familylaw.co.uk/news_and_comment/care-crisis-review-publishes-report-setting-out-options-for-change, https://www.familylaw.co.uk/news_and_comment/care-crisis-review-publishes-report-setting-out-options-for-change> accessed 11 January 2020.

[58] Delilah Bruskas, ‘Children in Foster Care: A Vulnerable Population at Risk’ (2008) 21 Journal of Child and Adolescent Psychiatric Nursing 70.

[59] Child and Parents in the 21st Century: Report of the Government Committee on the Reassessment of Parenthood (Xerox/OBT, The Hague 2016) 80.

[60] All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, SO, Chapter 23 – Bill 28.

[61] ‘Family Law Act’ <http://www.bclaws.ca/civix/document/id/complete/statreg/11025_03> accessed 13 December 2019.

[62] Re CC (n 15).

[63] Re MC 195 Cal App 4th 197 (CA 2011).

[64] Senate Bill 274 Family law: parentage: child custody and support (2013-2014).

[65] California Family Code Section 3040.

[66] Children Act 1989, s1(1).

[67] Senate Bill 274 (n 64), s1(d).

[68] (n 59).

[69] All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, SO, Chapter 23 – Bill 28.

[70] Children Act 1989, s31(2).

[71] Re B (Care Proceedings: Appeal) [2013] UKSC 33.

[72] Adoption and Children Act 2002, s52(1)(b).

[73] R and H v UK – 35348/06 [2011] ECHR 844.

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