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Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford


To situate your study of family law in the political, economic, social,
cultural and legal context of modern England and Wales;
To develop a critical understanding of the legal formation and status
of adult intimate relationships;
To understand the concept of parenthood and how legal
parenthood is ascribed.
During the next two weeks of lectures, we are shifting the focus from
knowing what the substantive family law says towards developing a more
critical perspective on the function, effectiveness and future of family law
in modern society.
To fully engage with this aspect of the course, you will be expected to read
the relevant sections of the text book AND a range of other materials,
including academic articles/commentaries, government policy and
primary legislation. Relevant materials will be identified at the end of
each section, but students who wish to perform well in this module will be
willing to conduct their own legal research and identify/apply other
materials of relevance.
1.1. Political and Economic Context

The Family Justice Review 2010 (see seminar 1)

The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO)

1.2. Social and cultural Context


R v. Inhabitants of Darlington (1792): In common parlance, the family

consists of those who live under the same roof, with the pater
familias...those who form...his fireside (per Lord Kenyon, CJ)

o Blackwell v. Bull (1836): Under different circumstances it means a

mans household, consisting of himself, his wider, children and servants. It
may mean his wife and children, or his wife; in the absence of wife and
children, it may mean his brothers and sisters or his next of kin, or it may
mean the genealogical stock from which he may have sprung (per Lord

Fitzpatrick v. Sterling Housing Association (1999) 4 All ER 705, Lord
Slynn defined the hallmarks of a family relationship as mutual

Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

interdependence, the sharing of lives, caring and love for one another,
commitment and support for one another.

Ghaidan v Mendoza [2004] UKHL 30,HL held that the term as husband
and wife in Rent Act legislation, should be read as as if they were
husband and wife, thereby concluding that a same sex partner who had
lived with the deceased in a spouse-like arrangement could be treated as
family for the purposes of enforcing housing entitlement.

Legislative endorsement of multiplicity of family forms:

o The Gender Recognition Act 2004
o The Civil Partnership Act 2004.
o The Equality Act 2010
o The Marriage (Same-Sex Couples) Act 2013
1.3. Technical and Medical Context
The Surrogacy Arrangements Act 1985
The Human Embryology and Fertilisation Act 2008
1.4. The International Human Rights Context

ECHR 1950
o Article 3 ECHR: Right to protection against torture/inhuman or
degrading treatment imposes both negative and positive
obligations of the state:

Negative: the state/state authorities must not subject individuals to

torture, inhuman or degrading treatment (ex. corporal punishment in
state schools).
Positive: the Convention requires the state to intervene actively to
protect individuals from violation of this right.
Z and Others v. UK (Application No. 29392/95) [2001] 2 FLR

o Article 6: Right to a fair trial (includes family proceedings) creates

procedural rights for those involved in either public or private
Sahin v. Germany, (Application No. 30943/96) [203] 2 FLR 671

o Article 8: Right to respect for private and family life - the ECtHR
has shown willingness to extent Article 8 protection to de facto as
well as de jure family life, particularly where there are children
Keegan v. Ireland, Application 16969/90 (ECtHR), Judgment of
26 May 1994

Article 8(2): There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national

Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

security, public safety or the economic well-being of the country, for

the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.

Article 12: Right to marry and found a family

Goodwin v. UK (Application No. 28957/95).
Johnston and Others v. Ireland (Application No. 9697/82)
Article 14: Right to non-discrimination. The grounds of
discrimination listed in Article 14 are not exhaustive. For instance,
they and have been held to include sexual orientation:
Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557

UN Convention on the Rights of the Child (UNCRC) 1989

Article 3 (Best interests of the child): The best interests of children must
be the primary concern in making decisions that may affect them.
Article 4 (Protection of rights): Governments have a responsibility to help
families protect childrens rights and create an environment where they
can grow and reach their potential. In some instances, this may involve
changing existing laws or creating new ones.
Article 5 (Parental guidance): encourages parents to deal with rights
issues "in a manner consistent with the evolving capacities of the child".
The Convention does not take responsibility for children away from their
parents and give more authority to governments. It does place on
governments the responsibility to protect and assist families in fulfilling
their essential role as nurturers of children.
Article 9 (Separation from parents): Children have the right to live with
their parent(s), unless it is not in their best interests. Children whose
parents do not live together have the right to stay in contact with both
parents, unless this is contrary to the best interests of the child.
Article 10 (Family reunification): Families whose members live in different
countries should be allowed to move between those countries so that
parents and children can stay in contact, or reunite as a family.
Article 12 (Respect for the views of the child): When adults are making
decisions that affect children, children have the right to say what they
think should happen and have their opinions taken into account.
Article 18 (Parental responsibilities; state assistance): places a
responsibility on governments to provide support services to parents,
especially if both parents work outside the home.
Article 19 (Protection from all forms of violence): Children have the right
to be protected from being hurt and mistreated, physically or mentally.
Article 20 (Children deprived of family environment): Children who
cannot be looked after by their own family have a right to special care and
must be looked after properly, by people who respect their ethnic group,
religion, culture and language.

Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

Article 21 (Adoption): Children have the right to care and protection if

they are adopted or in foster care. The first concern must be what is best
for them. The same rules should apply whether they are adopted in the
country where they were born, or if they are taken to live in another

UNCRC is legally binding but difficult to enforce but see per Lord Kerr
(dissenting) in: R (on the application of SG and others (previously JS and others))
(Appellants) v Secretary of State for Work and Pensions (Respondent) [2015]
UKSC 16. Argues in favour of direct applicability of Art 3 UNCRC.
Further Reading:

DfE and MoJ: A brighter future for Family Justice - A round up of whats
happened since the Family Justice Review, 2014
Holt, K and Kelly, N. What has happened since the Family Justice Review:
A brighter future for whom? 2015, Family Law, 45(7) pp.807-813
Cobb, S (2013) Legal Aid Reform Its impact on family law, Journal of
Social Welfare and Family Law, 35(1), pp. 3-19
For much more detailed analysis of impact of human rights on domestic
family law, see S Choudhry and J Herring European Human Rights and
Family Law, 2010 (Oxford Hart Publishing)

Family Law (Law 316) 2015-16 Weeks 6-7

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Marriage as a Status ?

Re P [2008] UKHL 38 (per Hale, para 107):

In family law, marriage is not just a contract; it is also a status,
bringing with it rights and responsibilities, not only as between the
parties, but also as against third parties and the state

Brenda Hale, in her article on Equality and Automony in Family law, notes that:
Throughout the history of family law there has been a debate between those
who see the relationship between man and woman, father and mother, as
essentially a matter of individual contract negotiated between them and
those who see it as a matter of status imposed first by the established
Church and then by the State. We do not need to regard marriage as a
religious sacrament to believe that it is more than a mere individual contract.
All the text books say that it is a status. The parties freely contract into it but
they are not free to write all the terms for themselves. Their relationship
affects third parties, most notably their children, as well as themselves. The
State, or rather the community as a whole, also has an interest....


Marriage as a Contract?

Radmacher v. Granatino [2010] UKSC 42 (per Hale, para 75)

The court should give effect to a nuptial agreement that is freely entered into
by each party with a full appreciation of its implications unless in the
circumstances prevailing it would not be fair to hold the parties to their
But see Hales dissenting opinion


Marriage as a Right

Article 12 ECHR: Schalk and Kopf v. Austria (App No 31041/04, ECHR)


R (on application of Baiai and others) v. Secretary of Statge for the

Home Department and others [2008] UKHL 53
Draper v. UK (App No 8186/78 ECHR) (1980)
R (on the application of the CPS) v Registrar General of Births,
Deaths and Marriages [2002] EWCA Civ 1661

Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

Marriage (Same-Sex Couples) Act 2013. The Act, which applies to

England and Wales:

allows same sex couples to marry in civil ceremonies

allows same sex couples to marry in religious ceremonies,
where the religious organisation has opted in to conduct such
ceremonies and the minister of religion agrees
protects those religious organisations and their
representatives who dont wish to conduct marriages of same
sex couples from successful legal challenge
enables civil partners to convert their partnership to a
marriage, if they wish
enables married individuals to change their legal gender
without having to end their marriage


Set out in ss.1-3 and the First Schedule of the Marriage Act 1949;
ss.11, 12 and 13 of the Matrimonial Causes Act 1973
Marriage (Same Sex Couples) Act 2013

Gender-related conditions
Since March 2014 it has been possible for same sex couples to marry
as well as heterosexual couples.

Transgendered people
- MCA 1973, s.11(c): Until 2005, transgendered people were not
permitted to marry a member of the opposite sex to that of their
newly acquired gender.
- Corbett v. Corbett ([1971] P 83, HL): held that a persons
gender, for the purposes of marriage, is to be determined
definitively at birth.
- Goodwin v. UK [2002] 2 FCR 577 : ECtHR found 'no justification
from imposing a blanket prohibition on transsexuals with regard
to exercising the right to marry.
- Bellinger v. Bellinger [2003] UKHL The House of Lords stated that
it was for Parliament rather than the courts to change the law on such
an important matter but acknowledged that the current law was
incompatible with the ECHR


Gender Recognition Act 2004.

Part 2 and Schedule 5 Marriage (Same Sex Couples) Act

Age-related conditions

Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

Marriage Act 1949, ss.2 and 3

o Parties to a marriage must be over the age of 16.
o If a young person is over 16 but under the age of 18, they must
have obtained the written consent of those who have parental
responsibility for them in order to marry.

Prohibited Degrees of Relationship

s. 1 Marriage Act 1949: marriage between persons related by blood

(consanguinity) or marriage (affinity) is void.

s. 6(2) of The Marriage (Prohibited Degrees of Relationship)

Act 1986, elaborates on what relationships fall within this exclusion:


s.64 Sexual Offences Act 2003: It is a criminal office for a person to

have a sexual relationship with anyone who is within a prohibited
degree of relationship to him/her.

Half-blood relatives?

Cases of Adoption?

- B v. UK [2005] 3 FCR 35: The bar on marriage was aimed at

protecting the integrity of the family (preventing sexual rivalry between

parents and children) and preventing harm to children who might be
affected by the changing relationships of the adults around them. While
those aims were legitimate, the bar on such marriages did not prevent the
relationships occurring and was not subject to an absolute prohibition.
(App. no 36536/02, p.353)

Led to amendment of the law: Marriage Act 1949 (remedial) Order

2007, No. 438

Step relatives?

Relationships brought about through cohabitation?



Already married or in a registered partnership

Family Law (Law 316) 2015-16 Weeks 6-7

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OAPA 1861, s, 57

MCA 1973, s.11(d)

Marriage (Same Sex Couples) Act 2013 section 9 permits couples

in a civil partnership to convert them into a marriage.

Mental Capacity

MCA 1973, s. 12(c) and (d).

Re SA (Vulnerable Adult with Mental Capacity: Marriage)

(2006) [2004] EWHC 2222: Munby J stated that the contract of marriages
is essentially very simple and would not require a high degree of capacity
to understand and enter into.


Forced Marriages: where one or both people do not (or in cases of

people with learning or physical disabilities, cannot) consent to the
marriage and pressure or abuse is used.

s.63(A)(4) Family Law Act 1996: Important distinction between

forced marriage and arranged marriage.

A Local Authority v. N. [2005] EWHC 2956

The Forced Marriage Unit:

The Forced Marriage (Civil Protection) Act 2007:

Interpolates a new part 4A after the existing part 4 of the

Family Law Act 1996

Empowers the family courts to issue civil orders aimed at

preventing forced marriage or assisting those who have
already been forced into marriage.

The Anti-social Behaviour, Crime and Policing Act

2014: makes it a criminal offence to force someone to marry. The
new offence came into force on 16 June 2014.

The maximum penalty for breach of a forced marriage

protection order is five years imprisonment (s.120 2014 Act)

Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford


Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

1. Introduction

The Civil Partnership Act 2004

Secretary of State for Work and Pensions v. M [2006] 1 FCR

497, (per Baroness Hale): [the CPA 2004] grants to same-sex
couples the same legal recognition that the law grants to
opposite-sex couples. It allows them ... a formal status with virtually
identical legal consequences to those of marriage'.

Civil partnership as gay marriage?:

o It is just wrong to create a parody of marriage for
homosexual couples (Baroness OCathain, Hansard HL Deb,
Vol, 660, col 403-5, 22 April 2005: 2nd Reading).
o Wilkinson v Kitzinger [2006] EWHC 2002 (Fam): By
withholding from same-sex partners the actual title and status
of marriage, the Government declined to alter the deeprooted and almost universal recognition of marriage as a
relationship between a man and a woman, but without in any
way interfering with or failing to recognise the right of samesex couples to respect for their private or family life...Not only
does English law recognise and not interfere with the right of
such couples to live in a very close, loving, and monogamous
relationship; it also accords them also the benefits of
marriage in all but name. (Per Sir Mark Potter, J)

Conversion of civil partnership into same sex marriage s.9

Marriage (Same Sex Couples) Act 2013.

2. Conditions for Civil Partnership

The parties must be of the same sex (s.1(1) CPA 2004).

They must not be married or in another civil partnership
They must be over 16, and if they are under the age of 18, must
have the consent of the person with parental responsibility (s.4 CPA
They must not be in one of the prohibited degrees of relationship
applicable to marriage (s. 3 CPA 2004)

3. Civil Partnership Procedure

The Human Fertilisation and Embryology Act, section 42:
brings status of female civil partners into line with that which
applies to married couples.


Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

4. The ongoing controversy associated with Civil Partnership

Why not extend Civil Partnership to opposite sex couples?
Why not extend Civil Partnership to non-sexual relationships?
Further Reading:

A Barlow and J Smithson Is modern Marriage a bargain?: Exploring

perceptions of pre-nuptial agreements in England and Wales, Child and
Family Law Quarterly, Vol 24 (September Issue) (23) 2012, 304-319

Hale, B. Equality and Autonomy in Family Law Journal of Social Welfare

and Family Law, 2011 33(1)

Dept for Culture, Media and Sport, Comparison of civil partnership and
marriage for same sex couples,

Barker, K. (2006) Sex and the Civil Partnership Act: the future of (non)
Conjugality? Feminist Legal Studies, 14: 214

G Morris All Change (Again) The New Law Journal (2014) Vol.164, Issue
7591, January, 11.

L Crompton Wheres the Sex in Same-Sex Marriage? Family Law Journal

(2013) Feb Issue, 564



Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

1. Defining Cohabitation
- Domestic Violence and Matrimonial Proceedings Act 1976
(s.1(2)): a man and a woman who are living with each other in the
same household as husband and wife

Family Law Act 1996: two persons who, although not married to
each other, are living together as husband and wife or (if of the
same sex) in an equivalent relationship (s.62(1)(a) as amended by
the Domestic Violence, Crimes and Victims Act 2004).

Adoption and Children Act 2002 (s.144(4)(b)): two people

(whether of different sexes or the same sex) living as partners in an
enduring family relationship can adopt

2. The cohabitation test

Crake v. Supplementary Benefits Commission [1982] 1 All ER 498, 502-

Kimber v. Kimber [2000] 1 FLR 232 (per Tyrer J):

3 (per Woolf J)


Are the parties living together under the same roof?

Do they share the tasks and duties of everyday domestic life?
Does the relationship have stability and permanence?
How do the parties organise their finances?
Are the parties sexually intimate?
Do they have children together; what responsibility do they take for
each others children?
What are the parties intentions and motivations
How would the relationship be viewed by the ordinary, objective,
reasonable person?

3. Defining the limits of cohabitation rights


Butterworth v. Supplementary Benefits Commission (1981) FLR 264

Burden and Burden v. UK (App No. 13378/05) [2007] 1 FCR 69

Sefton Holdings Ltd v. Cairns (1988) 20 HLF 124, 126 and 128

Johnson v. Ireland (1987) A-112, 9 EHRR 203: cohabiting couples with

children have a right to respect to family life under Article 8 ECHR, but
the state does not have a positive duty to provide access to family-related

Saucedo Gomez v. Spain (Application No. 37784/97) 26 January 1999



Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford


The Legal Effects of Unmarried Cohabitation

Cohabitation Contracts
Parental Responsibility
Taxation and Social Security

Stack v Dowden [2007] UKHL 17

Jones v Kernott, UKSC. 53, November 2011

5. The journey towards reform

- Law Commission 278 (2002) July 2002: Law Society, Cohabitation:
The Case for Clear Law
- The Family Law (Scotland) Act 2006
- The Law Commission, Cohabitation: the Financial Consequences of
Relationship Breakdown, July 2007 (LAW COM No 307)
- Cohabitation Rights Bill 2013-14 - A Private Members Bill from
Lord Marks of Henley-on-Thames to provide certain protections for
people who live together as a couple or who have lived together as
a couple; and to make provision about the property of deceased
persons who are survived by a cohabitant; and for connected

Further Reading:
C Crawford, A Goodman, E Greaves and R Joyce, Cohabitation, marriage and child
outcomes: an empirical analysis of the relationships between marital status and
child outcomes in the UK... Child and Family law quarterly, 2012, June, pp.176197
E. Heaton Whats mine is mine (2013) New Law Journal Vol. 163 Issue 7585, 9
For progress on the current Cohabitation Rights Bill 2013-14, see:



Family Law (Law 316) 2015-16 Weeks 6-7

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A. What is parenthood?

Re KD (a minor) [1988] 1 All ER 577, HL (at page 588 per Lord

Oliver): Parenthood, in most civilised societies, is generally
conceived of as conferring on parents the exclusive privilege of
ordering, within the family, the upbringing of children of tender age,
with all that that entails.

Children Act 1989 (CA 1989): parenthood per se does not

necessarily confer parental responsibility. Parental responsibility
rather than parenthood determines what rights and duties a parent
has in relation to the child and is outside the scope of this lecture.

Difficulties of ascribing parenthood: see: Leeds Teaching Hospital

NHS Trust v A [2003] EWHC 259.
Discussed by A. Bainham Whose Sperm Is It Anyway Cambridge
Law Journal 62 (2003) 566.

Do you agree with the judges decision?
If not, what alternative conclusions might you have reached?

B. Legal parenthood
Commencement of parenthood

Parenthood commences with birth of a child.

Child means...a person under the age of eighteen (CA 1989

s.105. But see Schedule 1, limited exception in respect of financial

The childs mother

Basic rule: birth mother is mother.

In context of ARTs such as insemination by donor (AID) or in vitro

fertilisation (IVF), or egg or embryo donation, the Human
Fertilisation and Embryology Act 1990 (as amended by 2008
Act) provides:



Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

The woman who is carrying or has carried a child as a result of the

placing in her of an embryo or of sperm and eggs, and no other
woman, is to be treated as the mother of the child.

Exception where child is adopted.

Surrogacy situations: the surrogate is the mother (irrespective of

whether she is genetically related).
Example: An embryo is created from As sperm and Bs egg. It is
placed in C who gives birth. C is treated as the mother.
Note: surrogacy agreements not enforceable (s.1A Surrogacy
Arrangements Act 1985.
In relation to surrogacy arrangements, in order for commissioning
couple to become legal parents they must either:
o adopt the child; or
o obtain a parental order under s.54 of the HFEA 2008
(previously s.30 of 1990 Act).
A parental order will only be granted if certain conditions (set out in
s.54 HFEA 2008) are met:
o The child must be genetically related to at least one of the
commissioning couple;
o The surrogate mother (and her husband or partner) must consent
to the parental order (unless they cannot be found or are
incapable of giving consent) and these consents cannot be given
earlier than six weeks after the birth;
o The commissioning couple must be at least 18 and married, civil
partners or living as partners in an enduring family relationship
[prior to the 2008 Act the couple had to be married];
o The application must be made within six months of the birth of
the child or for births before the 1990 Act came into force within
six months of that;
o No money or other benefit other than reasonable expenses must
have been given or received by the commissioning couple unless
authorised by the court (For a discussion of this provision see Re
C [2002] 1 FLR 909);
o The child must be living with the commissioning couple (who
must be domiciled in the UK) at the time of the application and
the court makes an order.
The effect of a parental order is that it ends any parental
responsibility gained by the surrogate and her partner and treats
the child as a child of the commissioning couple. It also entitles the



Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

child to an amended birth certificate (Parental Orders Human

Fertilisation and Embryology Regulations 1994 SI 1994 No 2767).

Consider the case of: Re X and Y (Children) [2011] EWHC 3147

(Fam). What do you think of the judgment?; what do you think of
the actions of the commissioning parents? Do you think the
outcome was right? If so, why?

The childs father or other parent

Father of the child is usually the biological father.

Unmarried heterosexual couple

o If a man was not married to a woman who becomes pregnant
have received fertility treatment, he may still be treated as
the father if the agreed fatherhood conditions in HFEA 2008
apply to him.
o So what are the agreed fatherhood conditions?
The man has give a notice to the treatment provider
that he consents to being treated as the father of a child
resulting from treatment to the woman;
The woman has also given notice the she consents to
the man being treated as the father; and
Neither party has withdrawn consent and the woman
has not asked for another man to be treated as the
father (s.37).
o If a man is treated as a father under these provisions no-one
else can be treated as the father (s.38 (1)).

Civil partners
o If the woman receiving treatment is not married but is a civil
partner, her female partner could be classed as a
parent of the child conceived via donation of sperm
and/or eggs or embryo provided that partner consented to the
treatment. In such a case no man may be treated as the
father of the child (s.45 (1)).
o For the partner of the person receiving treatment to be
classed as a parent, the agreed female parenthood
conditions must be met: ss 43 and 44.
o So, what are the agreed female parenthood conditions?
They are equivalent to the agreed fatherhood conditions
under s.37 (above), requiring formal written consent from


Family Law (Law 316) 2015-16 Weeks 6-7

Professor Helen Stalford

both parties to the non-mother being classed as a parent of

the child.

Deceased person
o The position where the man whose sperm was used has
died can be regarded as he father if he consented in writing
to the use of his sperm after his death to bring about a child
and that he be treated as the father of any child. This is the
case regardless of whether the treatment occurred in the UK
or elsewhere.
o R v. HFEA ex parte Blood [1997] 2 All ER 687 CA.

Sperm donor
o Donation in treatment services: the donor is not to be treated
as the father: s.41 HFEA 2008.

Effect of parent status under above provisions

o Where a person has parent status by virtue of any of the
above provisions, he or she will be a parent for all legal
purposes, save that if a person is deceased then he or she is
only classed as a parent for birth registration purposes:

NB: The Welfare Reform Act 2009

Section 56 and Schedule 6

The provisions impose a duty upon an unmarried mother to provide
details of her childs father when she registers the birth (unless
certain conditions apply)1. The Act included provision for regulations
to be made enabling the registrar to contact the person identified by
the mother. If he confirms that he is the father, his name will be
entered on the register, granting him parental responsibility.
The Act also includes provision for the father to contact the registrar
to identify himself as the father of a child and, upon confirmation of
this by the mother, for his name to be added to the register.
Exceptions included to protect women.

Further Reading:
A Bainham, What is the point of birth registration? Child and Family Law
Quarterly 20(4) (2008) 449

1 Welfare Reform Act 2009 Schedule 6 Part 1 para 4 amending s 2 Births and
Deaths Registration Act 1953. There are exceptions to this duty such as inter
alia, where the mother does not know the identity of the father or fears for her
safety if he were to be contacted


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J Fortin, Childrens right to know their origins too far, too fast? Child and
Family Law Quarterly 21(3) (2009) 336
L Smith, Is three a crowd? Lesbian mothers perspectives on parental
status in law Child and Family Law Quarterly 18(2) (2006) 231
A Bainham, Arguments about Parentage Cambridge Law Review 67
(2008) 322