LGBTQ+ Families - who has parental responsibility?

For opposite-sex parents, the question of who has parental responsibility for any child may be easily answered. However, the same cannot be said for LGBTQ+ parents, who may face certain obstacles in obtaining parental responsibility. With June being Pride Month, now is the perfect opportunity to discuss  the law surrounding LGBTQ+ families and parental responsibility. 

Parental responsibility – what is this?

In England and Wales, parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and their property”. This allows someone with parental responsibility for a child to make decisions about the child’s welfare, including schooling, religion and medical treatment. The birth mother will automatically obtain parental responsibility for a child, even if they are not the biological mother i.e. via donated eggs. In order for the father to obtain parental responsibility, they must either be married to the mother of the child at the time of the birth or be named on the birth certificate at the time that the child’s birth is registered. If a father marries the child’s mother at a later stage, they will also obtain parental responsibility for the child. There are also other ways in which an unmarried father can obtain parental responsibility through the Family Court. 

What is the UK’s position on LGBTQ+ parents?

The Adoption and Children Act 2002  afforded LGBTQ+ parents the same rights as opposite-sex parents in respect of their children. There is also scope for  LGBTQ+ couples to adopt a child together, adopt their existing partner’s child or to enter into a surrogacy agreement.

We are a same-sex couple but not married – what does this mean for parental responsibility?

The introduction of the Human Fertilisation and Embryology Act 2008 afforded unmarried same-sex couples the opportunity to be registered on a child’s birth certificate in some situations.

Female same sex couples

When a female same sex couple are married or in a civil partnership, and the child was conceived in a UK fertility clinic, both partners will automatically have a right to be named on the birth certificate, as long as they both consent to the treatment.

If a couple are in a relationship, but not married or in a civil partnership, and they engage with a licensed UK clinic for conception, either by IVF or artificial insemination, the birth mother can nominate their partner as the ‘parent’ of the child. The partner of the birth mother can also obtain parental responsibility by being registered as a parent on the birth certificate, by making a parental responsibility agreement with the birth mother, or by obtaining a parental responsibility order from the court.

Unmarried male same sex couples

If a male same sex couple choose surrogacy to conceive a child, there are some difficulties surrounding parental responsibility. It is important to remember that the woman who carries and gives birth to the child will be regarded as the legal mother at birth, and their spouse or civil partner, if they have one, will be considered as the legal father. In order for the other couple to be recognised as legal parents, they will need to obtain the consent of the surrogate and make an application for a Parental Order. A Parental Order will end the birth mother’s parental responsibilities and allow the same sex coupe to be registered on the child’s birth certificate.

How can same-sex couples obtain parental responsibility?

Complications can arise for same-sex couples who are not in a civil partnership or married at the time of conception. In this scenario, parental responsibility can be obtained through:

• A Parental Responsibility Agreement;
• Applying to the Court for a Parental Responsibility Order;
• Registering the birth of the child jointly, this is only the case in same sex female couples and only if they are treated together in the UK by a licensed clinic;
• Obtaining a Child Arrangements Order confirming the child ‘lives with’ someone will automatically afford the applicant parental responsibility.

Here at Johnson Astills, we have the necessary experience to guide you through the process in obtaining the necessary documents to afford you parental responsibility over your child.

If you like to discuss parental responsibility further, or have any queries regarding child arrangements or adoption, please get in touch with Johnson Astills today and we would be more than happy to discuss your requirements further. Please call us at our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312 and ask to speak to a member of the Family Team. Alternatively, you may prefer to email us at legal@johnsonastills.com or fill in our enquiry form.