Family Law
Question
“Family law is traditionally flexible, giving the court scope to deal with each case on its own merits. Fertility law, in contrast, is often driven by a Parliamentary wish to create clarity and certainty at a wider public policy level. The two approaches do not always sit together comfortably.” Gamble, N, ‘Lesbian parents and sperm donors: Re G and Re Z’, Nov [2013] Fam Law 1429
Critically assess whether the law relating to assisted reproduction and legal parentage is too rigid to adequately protect the interests of parties.
Guidance
The sensitive and diverse nature of family law has meant that legislation is often drafted to allow the judiciary a measure of discretion in dealing with family matters. For example, parts of The Children Act 1989 could be seen to provide guidelines for the courts’ consideration rather than rigid rules. Scientific developments surrounding the area of fertility have necessitated changes in the law to take account of new situations. The Human Fertilisation and Embryology Acts 1990 and 2008 have sought to clarify legal parentage and protect the interests of parties. The question asks students to consider the approach taken by Parliament in passing this legislation and whether this strikes an appropriate balance between providing legal certainty and allowing judges sufficient leeway to consider the circumstances of each case. Introduction In the introductory paragraphs you should set out how you propose to answer the issues raised in the question, the areas you intend to discuss and summarise the conclusions that the answer will reach. Main Body The areas of discussion set out in your introduction should be expanded upon and analysed in light of the quote. You should examine the law underpinning judicial decision making and cases illustrating the approach the courts have taken. The content and structure is entirely a matter for the author and the following points are not intended to be prescriptive. However, by way of guidance, you may wish to consider:• The extent to which family law can traditionally be described as flexible.• The relevant legislation underpinning fertility treatment and legal parentage, in particular the Human Fertilisation and Embryology Acts 1990 and 2008.• Whether the law in this area has developed sufficiently in line with scientific and social changes.• Whether the legislation strikes a good balance between legal certainty and the individual circumstances of families. • Whether the law adequately protects the rights of the parties involved, including those of the child. Students should remember that the answer is a legal one and avoid emotive statements of opinion without reference to authority. Conclusion .This conclusion should be a brief summary of the issues and arguments raised in the main body of the answer and should show how these have provided an answer to the question set