Knowing Me, Knowing You: Navigating the Complexities of Legal Parentage
Picture this. You stroll down the streets of Covent Garden. You arrive at the Novello Theatre. As the lights dim, you look around to see other audience members dressed in floral shirts, flared jeans, and sparkly outfits. The overture starts and the sound of iconic ABBA songs fills the theatre. You find yourself grinning as you hear the first few lines of “I Have a Dream” sung by the main character Sophie. You sit back and relax as you wait to be transported to a beautiful Greek island for the next two and a half hours.
Within minutes of the show starting, you find out that Sophie is getting married the next day, and she dreams of being given away at the altar by her father. The problem is, she does not know who her father is. Around the time her mother Donna fell pregnant, she was involved with three men. So, Sophie has three possible fathers, and she has invited all three to her wedding. What could possibly go wrong?
Let’s pause there. At this point in the show, you may be mouthing the lyrics of the songs, feeling gleeful from two glasses of champagne, and enjoying the suspension of disbelief; it is a jukebox musical after all, you’re not supposed to apply logic to the storyline! But as a family lawyer, I can’t help but think of the legal implications of the scenario.
A child can have up to two legal parents. A woman who gives birth to a child is automatically a legal parent of the child. In this case, Donna is Sophie’s legal parent. Whether or not there is a second legal parent is dependent on a variety of factors, including Donna’s marital status, the child’s genetic links, and whether Sophie was conceived naturally.
Imagine that Harry Bright, an Englishman and one of the three possible fathers, found out about Sophie when she was a child, long before he received an invitation to her wedding. He had tried to contact his long-lost love Donna but couldn’t find her on Facebook, and he was informed that his letter was undeliverable as she no longer lived at her last known address. He would have the option to apply for a declaration of parentage, under section 55A of the Family Law Act 1986. The English court would have jurisdiction on the basis that he is either domiciled in England and Wales on the date of the application or has been habitually resident in England and Wales throughout the period of one year ending with that date. He would need to demonstrate a ‘sufficient personal interest’ in the determination of the application. Luckily for Harry, there is no time limit for an application for a declaration of parentage, as it can be made in respect of both children and adults. Therefore, if Harry took a DNA test after the wedding, which confirmed he is Sophie’s father, he could apply for a declaration of parentage even though she is no longer a child.
Another hypothetical scenario could be that when Sophie is still a child, Donna asks that one or more of the three possible fathers undergoes DNA testing to confirm which one is Sophie’s genetic father. The English court can make a direction for DNA testing, but it cannot force the relevant person to undergo testing. However, the court may draw inferences if the relevant person refuses to undergo testing. Once the DNA tests confirmed who the father was, Donna could then apply for a declaration of parentage. She may want this for several reasons, such as to get a better understanding of Sophie’s father’s medical history; to give Sophie a better sense of identity; to update Sophie’s birth certificate; to apply for another passport for Sophie (on the basis of Sophie’s father’s nationality); or to apply for financial support from the father.
Legal parenthood is distinct from parental responsibility for a child, which is the legal ability to make important decisions relating to a child’s upbringing and welfare, such as medical decisions, schooling, religion etc. A legal parent may or may not have parental responsibility, and a person can have parental responsibility without being recognised as a legal parent. To find out more about parental responsibility, read this article by my colleague Hilde Braaten Resseth: Parental responsibility = shared care… Or does it?
One of the verses in “Thank You for the Music” starts with “Mother says I was a dancer before I could walk…she says I began to sing long before I could talk…”. In the musical, Sophie sings this to her three potential fathers when they arrive in Greece the day before her wedding. I wonder if the playwright wanted to emphasise that Sophie was raised only by her mother, and therefore only had one legal parent…though the more likely reason is that it’s simply a catchy song!
