Evolving family units: understanding your legal position
We take a closer look at varying family structures and the legal position for those involved.
The days of a family consisting of 2.4 children with married, opposite sex parents are long gone. Family units evolve and are formed through a myriad of different arrangements, including step-parents, adoption, assisted reproduction, donor conception and surrogacy. They can include wider members of the extended family, such as grandparents.
Whatever your arrangement, there can be uncertainty about the legal position for those involved in so far as their legal status to the child is concerned. It is important that you consider your position. If you are planning to start a family via an alternative route you should seek expert advice prior to conception.
This article refers to the law in England and Wales. If you are a parent in Scotland, the law will differ and Weightmans’ Scottish team will be able to guide you.
The 3Ps: the distinction between parenting, parenthood and parental responsibility
A person, for example a grandparent or step-parent, may assume a parenting role for a child without any formal legal relationship to that child, or the legal right to make decisions about that child’s welfare. They may seek a more formal arrangement in some circumstances, such as a special guardianship order or a child arrangements order.
There are strict rules governing who will be considered the legal parents of the child. It is important to establish who is a legal parent and, if required, take steps to seek a parental order or adoption order to secure parenthood for parents who are not automatically legal parents.
Legal parenthood establishes a lifelong parent–child connection. It affects:
- Financial obligations
- Whether someone can issue a court application to determine an issue concerning the child without the need for leave (permission) of the court
In practical terms, a person with parental responsibility should have a say in major decisions affecting their child. Examples are the choice of school, religious upbringing and whether he/she should receive medical treatment.
What options for creating a family are there?
This list is not exhaustive. Options may include:
Adoption is a legal process to make someone a child’s parent. It may be required as a process if a party wishes to adopt a step-child, or alternatively, if the child was conceived through assisted reproduction and the law fails to recognise one party as a legal parent.
A step-parent role may arise by way of marriage or civil partnership to a child’s parent, or informally if a couple are unmarried. Some step-parents will play a full and committed role in the child’s life, others less so.
In some situations, a step-parent may find themselves with no legal standing in the child’s life. For some families, particularly those with two committed and involved legal parents, that will be appropriate. However, for others, it may be that the biological parent will wish the step-parent to have some legal rights and responsibilities in relation to the child.
More and more people, including LGBTQ+ couples, are turning to surrogacy as this is often the only option available for those who wish to have a genetic link to their child.
Surrogacy arrangements may be made in the UK or abroad, which in turn can result in added complexity and issues to be considered. Legal advice should ideally be sought before embarking on the surrogacy process, especially if surrogacy takes place abroad, as immigration issues may arise.
The birth mother is always the legal parent of the child, even if the birth mother is not the biological mother. Whether her partner is the second legal parent depends on the marital status of the birth mother, the date of conception, whether insemination takes place in or out of a licensed clinic, and whether necessary formalities are complied with. In particular, it is important to be able to demonstrate that the mother’s spouse or partner consented to the treatment.
The above may not be what is intended by all involved and further steps may need to be taken to establish a legal parent and parental responsibility. The intended parents will need to apply to the court for a parental order.
The birth mother is always the legal mother regardless of whether she is the biological mother.
If the egg donor is the birth mother’s spouse or civil partner, then she will be recognised as the second legal parent unless it can be shown that she did not consent to the conception.
If the egg donor is the birth mother’s unmarried partner, it is possible for her to be registered on the birth certificate as the second legal parent of the child, provided that the child is conceived after 6 April 2009 and the partner is nominated as the second parent on the HFEA forms. As a prerequisite, both the birth mother and her partner need to receive counselling and detailed information about the process before signing the HFEA forms.
Whether or not a sperm donor is a legal parent of a child, and as a consequence financially responsible for that child, will depend on how the child is conceived.
Donation through a UK licensed clinic
If a sperm donor donates his sperm through a licensed clinic to unknown recipients, he will not be the legal father of the child.
If a sperm donor donates via a UK licensed clinic to someone he knows, the situation is more complex and depends on the paperwork signed at the clinic and the intentions of the parties concerned.
Conception at home
If the sperm donor donates through sexual intercourse, he will always be the legal father.
If donation takes place via artificial insemination to a couple who are married or in a civil partnership, the sperm donor will not be the legal parent.
If the birth mother is not married or there is no second legal parent, the sperm donor will be the legal parent.
A special guardianship order is an order appointing one or more individuals to be a child's 'special guardian'. It is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement. It gives parental responsibility to the applicant which gives them responsibility for day to day decisions relating to a child's care and upbringing. The local authority will be involved in the process, preparing a report for the court's consideration.
It is possible to obtain an order from the court, even if a party is not a parent or if they do not seek parental responsibility. This may include grandparents.
The most common orders are Child Arrangements Orders. These are often a 'lives with' order (sometimes called 'custody' or 'residence', and which would grant parental responsibility), 'time spent with' order (sometimes called 'access' or 'contact'), a prohibited steps order, or a specific issue order.
As highlighted above, a child arrangements order can confer parental responsibility on the intended parents. It will not, however, confer legal parenthood.
Unfortunately, disputes can arise at any stage for families and those intending to create a family, both pre-conception, pre-birth and subsequently, and expert advice may be needed, especially if there is uncertainty about the relationship and status a person has towards a child.
Many families only discover a lack of rights, responsibilities or decision-making powers towards a child in emergency situations, which in turn can lead to unintended consequences. Understanding your family structure and status from a legal perspective from the outset is key.
Certainly, there are occasions where the legal position of an individual does not reflect the intended parentage and in those situations a parental order (if one party has a genetic link) or an adoption order may be required.
If you have any questions about creating a family and parenthood, please contact our child law solicitors.