Truth or ‘collateral damage’? Legal parentage, bio-genetic parentage and children’s perspectives

© 2018 Dr Hannah RobertThis study explores the operation of legal parentage within Australian family law through analysing judgments and legislation in ‘misattributed fatherhood’ cases – where the person who is publicly identified or assumed to be the legal father is shown not to be genetically related to the child. It argues that legal parentage currently performs four different, bundled, functions: recording the child’s origins, designating default parental responsibility, defining the child’s legal kinship identity and assigning economic responsibility. In these judgments, judges generally re-align the child’s legal parentage to match the factual finding regarding the child’s genetic parentage. This often erases the status of a social father as a legal father, and sometimes identifies men who are genetic fathers, but who have not parented the child, as legal parents. In the process, a child’s legal identity and legal kinship relationships may be radically and retrospectively rewritten, with little space for judges to consider the impacts for the child in question, or the child’s own understandings of their legal kinship identity or relationships. Binding these four functions together within legal parentage is rhetoric (judicial, legislative and social) which frames biogenetic parentage as ‘true’ parentage. This ‘biotruth’ rhetoric conflates legal parentage as a question of law with the factual enquiry as to a child’s progenitors. In so doing, it masks the technical complexity of legal parentage and obscures law’s role in shaping, legitimating and constructing legal kinship relationships. It means that the legal definitions of ‘parent’ fail to reflect the complexity and diversity of human family-making (both biological and social) and, in the process, fail to recognise and protect children’s complex interests in information about their origins and the stability of their legal kinship identity and relationships. Biotruth rhetoric within legislative and judicial understandings of legal parentage therefore works to prioritise adherence to a normalised family structure over supporting and securing the relationships on which children rely for their care, kinship identity, and economic support. A more child-centred approach would unbundle these distinct functions, and create space to hear children’s voices on any proposed changes to their legal parentage, and on the release and use of information about their origins