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When is a Parent not a Parent? CS v KS and JS and the Question of Genetic Parentage or Social Parenting

Document Cited authorities 15 Cited in Related
Vincent
Pages263-268
Published date01 May 2015
Date01 May 2015
DOI10.3366/elr.2015.0279
AuthorGillian Black
<p>The question of what makes someone a parent has been the subject of increasing debate in recent decades as a result of significant shifts in family compostion and the enhanced options for tackling infertility through donor gametes and surrogacy. Traditionally the focus has been on the genetic connection between parent and child, but the social connection – and intention to be a parent – plays an ever-developing role in questions of parenting and parentage.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p>For a selection of the extensive literature in this area see A Bainham, S Day Sclater and M Richards (eds), <italic>What is a Parent? A Socio-Legal Analysis</italic> (1999); E Sutherland, “Parentage and Parenting” and A Griffiths, “Reconceiving Families and the Ties that Bind” in J Scoular (ed) <italic>Family Dynamics: Contemporary Issues in Family Law</italic> (2001); J L Hill, “What does it mean to be a ‘parent’? The claims of biology as the basis for parental rights” (1991) 66 NYU LR 353; N Dowd, “Parentage at birth: birthfathers and social fatherhood” (2005–06) 14 Wm & Mary Bill Rts J 909; A Bainham “Arguments about parentage” 2008 67 CLJ 322; K Everett and L Yeatman, “Are some parents more natural than others?” (2010) 22 CFLQ 290; and D J Ettinger, “Genes, gestation and social norms” (2012) 31 Law & Philosophy 243.</p> </fn> As the case of <italic>CS v KS and JS</italic> <xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>[2014] SCLIVI 57; 2014 SLT (Sh Ct) 165.</p> </fn> demonstrates, Scots law continues to focus on the genetic connection as the sole determiner of “father” status at the expense of social parenting.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p>This has been modified by the <a href="https://vlex.co.uk/vid/human-fertilisation-and-embryology-808095257">Human Fertilisation and Embryology Act 2008</a> (henceforth “HFEA 2008”) in cases of assisted reproduction: ss 35 and 36 make provision for a father who is not genetically related to the child, where the mother receives treatment in terms of the HFEA 2008; ss 42 and 43 make similar (but not identical) provision for the female partner of the mother. This note is concerned with cases arising from “traditional” conception, where the statutory <italic>pater est</italic> presumption applies.</p> </fn> This note examines the legal challenges raised by this recent decision, while questioning whether reform of Scots law is required to reflect a more nuanced understanding of being a parent.</p> THE FACTS

In CS v KS and JS the pursuer sought a declarator of non-parentage in respect of his son. The litigation focused on the age-old topic of paternity, but the application of the appropriate statutory test raises particular concerns in contemporary family law. The action was raised in terms of section 7 of the Law Reform (Parent and Child) (Scotland) Act 1986 (the “1986 Act”), which enables an action to be raised for declarator of parentage or non-parentage.

The father, the pursuer, was married to the mother at the time of the son's conception in July or August 1996. When their son was born in the spring of 1997 there appeared to be no questions raised by the father as to parentage and he was accepted as a child of the family.4

No concerns were raised by the father when their daughter was born subsequently, although he gave evidence that she was fair, unlike her elder brother, and that this difference was noticeable from birth (para 8).

A daughter was born subsequently. Ten years after the birth of the son the parents separated, and two years later they divorced. The father remarried and had a child with his new wife. He continued to pay child maintenance payments to his former wife, in respect of both his son and daughter. However, his own parents and his new wife started to ask questions about the parentage of the son. Not the least of their suspicions was that the boy had dark skin, dark hair and brown eyes, in contrast to the pursuer and his former wife, who were described in the judgment as having “typical Scottish pale skin”5

Para 13. It should be noted that whether the skin colour of the parties was relevant evidence was the subject of judicial consideration (paras 30–33), with the Sheriff concluding that it was something that could be taken into account in reaching his decision, in line with Grant v Countess of Seafield 1926 SC 144.

 and green and blue eyes respectively. There was also evidence from the pursuer's brother that the former wife had had an extra-marital affair throughout July and August 1996 with a local Asian man

Despite requests from the pursuer, his former wife refused to consent to DNA testing to establish paternity and she played no role in this action. It is not clear why the father did not consent to having his son DNA tested, since there was nothing in the court report to suggest that he did not still have parental rights and responsibilities in respect of his son at the date the action was raised. He would, therefore, have been entitled to seek DNA...

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