Parentage in Jersey and Proposed Reforms
By Advocate Barbara Corbett
If the question is posed, who are a child’s parents, at first blush the answer might seem simple, her mother and father of course. However, is it actually that simple?
Under Jersey law currently, a child can only have two legal parents, one female mother and one male father. A woman who gives birth to a baby is the mother and, under customary law, her husband, whether or not biologically connected to the child, is the father (although this presumption can be rebutted). Legal parent status is derived from registration of the birth and can include a father who is not married to the mother. Legal parenthood can also be obtained through adoption.
Legal parenthood is important as it is the basis of the child’s citizenship and inheritance.
However, legal parenthood is not the full picture. All tied up with legal parenthood is who looks after a child or who she lives with. In the old days this was called custody but since 2005 there has been a concept of parental responsibility (and residence and contact orders). Parental responsibility gives a parent all the “rights, duties, powers, responsibilities and authority” in respect of a child that a legitimate father had before the Children (Jersey) Law 2002 came into force in 2005. The big difference is that parental responsibility can be held by more than one person and it is not necessary to be a legal parent to hold parental responsibility.
As the rights and responsibilities of someone with parental responsibility are as potentially far-reaching as they are, in day to day life there is not much difference between legal parents and those with parental responsibility. A birth mother always has parental responsibility for a child, as does a father married to the mother at the time of birth. An unmarried father may obtain parental responsibility by being named on the birth certificate, by court order or by agreement. Other people can obtain parental responsibility by having a residence order made in their favour. A residence order (which determines with whom a child lives) can be held jointly. So, for example, a child born within marriage has both legal parents who also have parental responsibility. If they can’t care for her and a residence order is made in favour of her grandparents, the child would end up with four people with parental responsibility, but still only two legal parents.
One of the biggest difficulties with the current law is that it does not reflect the equal nature of marriage and parenthood which now encompasses same sex relationships. At present, where two women have a child together via assisted reproduction, only the woman who gives birth can be a legal parent (even if the other woman’s eggs have been used to create the baby). A couple (a male couple, female couple or an opposite sex couple) who have a child through surrogacy cannot both have parental responsibility either. The surrogate has parental responsibility together with the biological father (if registered as the father). In such cases parental responsibility cannot be obtained by agreement or a parental responsibility order by the non-birth parent. The only ways for both parents to obtain parental responsibility are either by way of a residence order or adoption. These options are more complex and costly.
The intention is for there to be changes in the law relating to parentage. This did not happen when same sex marriage was brought in, despite the States being made aware of the unfairness of the situation.
The plan is to change the law to enable same sex parents to be registered as a child’s legal parents, for opposite sex parents in civil partnerships to be able to obtain legal parent status and parental responsibility and as far as possible to enable same sex parents to automatically have parental responsibility.
It is also proposed to enable intended parents to children born through surrogacy to become legal parents and for stepparents to be able to acquire parental responsibility by agreement.
There are also plans for all children whose parents (same sex or opposite sex) are married or in a civil partnership to be legitimate and to be able to be registered as parents.
These long overdue reforms to family law in Jersey are greatly welcomed by family lawyers. The changes in the law will confirm equality for same sex parents and uphold the human rights of parents and children which have been sadly lacking. It seems that these reforms have been delayed by COVID but it is good to see the importance now being placed on this significant area of law. Next step, divorce reform!
Advocate Barbara Corbett
July 2021