Parental orders Q&A
Our family law expert answers some frequently asked questions on parental orders.
What is a parental order?
A parental order is a court order which transfers legal parentage from the surrogate mother (and her spouse/civil partner) to the person or persons who are going to bring up the child. This has the effect of extinguishing the status of the surrogate mother and her spouse/civil partner and ensures that the legal position reflects the reality on the ground. Once a parental order has been made, the birth certificate will be reissued naming the intended parents as the child’s parents.
Is a parental order similar to an adoption order?
In some ways, yes. A parental order transfers legal parentage in the same way as an adoption order. However, with a parental order:
- At least one of the intended parents usually has a genetic link to the child.
- The intended parents will have had some involvement in the creation of the child, albeit not via traditional methods.
- The order has to be made by consent, as opposed to an adoption order where, in certain circumstances, the court can impose the order on the birth parents.
- The intention is to affirm the intended parents as the child’s family, as opposed to an adoption order which confirms that the adoptive parents will accept responsibility for someone else’s child.
Do the intended parents need a parental order?
Yes. Regardless of whether the surrogate is based in the UK or overseas, the intended parents will need to obtain a parental order as, without one, they will not be the child’s legal parent in the UK. This can lead to all sorts of problems, in particular:
- The parent or parents will not have the authority to make basic decisions about their child such as which school they should attend and whether they should receive medical treatment.
- They will encounter problems with regard to inheritance and pension rights.
- They will face legal complications if they subsequently separate, divorce or decide to dissolve their civil partnership.
- They could potentially risk the involvement of social services.
- They will have difficulty obtaining or renewing a British passport.
- They will need to locate and involve their surrogate in future decisions concerning their child.
Do the intended parents have to apply for the parental order within a certain time frame?
Strictly speaking, yes. The application for a parental order must be made six weeks after the child is born, but before the child is six months old. It is often advisable to prepare the necessary paperwork in advance of this window as, once the baby arrives, intended parents can find themselves somewhat preoccupied and the surrogate may presume that her consent can be inferred from the fact that she has handed over the baby. The surrogate may be keen to move on with her life and may not welcome being chased to complete paperwork.
What if, for some reason, the application is not made before the child is six months old? Is it still worth making the application?
Yes. There have been a number of reported cases where the application has been made out of time, but the order has still been granted.
How long does it take to obtain a parental order?
The process for obtaining a parental order normally takes between six and 12 months.
How do the intended parents apply for a parental order?
They will need to apply to their local family court, or the Central Family Court in London if the surrogate is based overseas. Often, if the case is straightforward, it will be heard in the magistrates’ court, but if the case is complex or there are international issues, the case will be referred to a High Court judge.
The form they will need to complete is called a C51. The court will issue the application, list the matter for a hearing and ask the intended parents to arrange for the surrogate to sign and return to the court a C52 acknowledgement form. The surrogate and the intended parents will then need to confirm that everyone agrees to the making of a parental order by completing form A101A.
What happens after the intended parents apply for a parental order?
An application for a parental order is normally dealt with relatively quickly (within six to eight months) and often there is just one directions appointment before the case is set down for a final hearing. Usual directions include the appointment of a parental order reporter and the filing of statements. The final hearing is usually treated as a celebratory hearing.
It is important that the intended parent obtains parental responsibility for the child at the first directions hearing, if not before. Clearly, a situation where the people caring for the child do not have parental responsibility is far from ideal.
What is the role of the parental court reporter?
The parental order reporter will endeavour to meet with the intended parent(s) and the surrogate (if based in the UK) and will then feed back information to the court via a written report. At the conclusion of that report the parental order reporter will make a recommendation as to whether or not a parental order should be made in favour of the intended parent(s). The court is likely to follow the recommendation of the parental court reporter.
What should the intended parent include in their statement?
The intended parent simply needs to tell the judge the story of how their son/daughter came into being. Often it is a good idea to attach any evidence upon which the intended parent(s) propose to rely, including, but not limited to, photographs of the baby/birth, birth certificates, marriage certificates, DNA test, and/or a letter from fertility clinic, assuming the baby was conceived through IVF.
Will the surrogate be expected to participate in the proceedings?
Normally, once the surrogate (and her spouse/civil partner) has completed the necessary paperwork and has confirmed that she/they are happy to consent to a parental order, they will play no further role in the proceedings and their attendance at any court hearings will be excused.
What will the court take into account on an application for a parental order?
In accordance with section 54 of the Human Fertilisation and Embryology Act 2008, when considering whether to make a parental order, the court will need to satisfy itself that the intended parents meet certain criteria:
- Conception must have taken place by artificial insemination or embryo transfer and the child must have been carried by a surrogate.
- The intended parent, or if the application is made by a couple, at least one of them must have a genetic link with the child. It follows that in cases of double gamete donation parental orders are not available.
- Single parents can now apply for a parental order but if the intended parents are applying as a couple, they must be married, in a civil partnership or living together in what is deemed as an “enduring family relationship”.
- As set out above, the application needs to be made between six weeks and six months of the birth.
- The child must be living with the intended parents.
- As at the date when the application and any order is made, the intended parent must be domiciled in the UK, Channel Islands, or Isle of Man. If there are two intended parents applying as a couple then at least one of them has to be domiciled in the UK, Channel Islands, or Isle of Man.
- The intended parents must be over the age of 18.
- The surrogate and any spouse/civil partner must freely consent to the order.
- The intended parents must not have paid the surrogate more than her reasonable expenses.
Ultimately, the welfare of the child is the paramount consideration of the court and it will only make the parental order if deemed to be in the best interests of the child. Usually however, providing everyone is happy with the surrogacy arrangement, the court will bend over backwards to try and create a legal relationship between the child and the intended parents, otherwise the child would be left in a situation whereby its birth parents do not wish to have parental responsibility or any involvement in the child’s upbringing and the child’s intended family are deprived of legal parenthood and parental responsibility. Whilst the court recognises that this would be a most unsatisfactory outcome, it endeavours to ensure that intended parents meet the above criteria.
If the baby is born abroad as a result of a commercial surrogacy arrangement, will the court refuse to grant the parental order?
No, not normally, but again, it depends on whether the intended parents are able to satisfy the criteria listed above. If there are public policy reasons in support of the court refusing to make the order, then the application will not be successful. It may be, for example, that the court is concerned that the surrogate has been exploited. The court will take particular care to scrutinise any surrogacy arrangement where the surrogate is based overseas in a country where poverty and deprivation is commonplace.
What can intended parents do to avoid things going wrong?
Do not rush into anything. Ordinarily, if people enter into a surrogacy arrangement after giving matters careful consideration, everything will go to plan. It is, however, advisable to go through a non-profit surrogacy agency. Reported cases tend to suggest that things can go wrong when people desperate to have a baby make their own arrangements via social media accounts such as Facebook.
In the event that a parental order cannot be made, are there any alternatives?
The intended parents could seek one or more of the following orders:
- A child arrangements order – this can state that the child will live with the intended parents and will confer parental responsibility on them but not legal parenthood if there is no parental order in place.
- A prohibited steps order – again, this will not make the intended parents the legal parents of the child in the absence of a parental order, but it can seek to restrict the surrogate parent’s involvement with the child.
- An adoption order – this will confer legal parenthood and parental responsibility on the intended parents and will terminate the rights of the surrogate (and her spouse). However, unlike a parental order, it will not recognise at least one of the intended parents as the biological parent of the child.
Are there any plans to reform the current surrogacy system?
In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryological Act 2008. The Law Commission accepts that the law in this area is out of date and is no longer fit for purpose. It has therefore been considering possible reforms for a number of years. A final report detailing the Law Commission’s recommendations and a draft bill are expected in autumn 2022. At this stage it is anticipated that key proposals will include:
- Creating a new surrogacy pathway which will allow for surrogacy organisations to be regulated and for intended parents to enter into an agreement which would recognise them as the legal parents of the child from birth.
- Introducing regulation of surrogacy arrangements with a view to avoiding the risk of arrangements breaking down. This could include various safeguards, such as the parties to the arrangement attending counselling and being able to obtain legal advice.
- Allowing international surrogacy arrangements to be automatically recognised here, on a country-by-country basis.
- Removal of the requirement for there to be a genetic link between the child and the intended parent.
- Guidelines as to what may constitute reasonable expenses.
It is anticipated that a clear distinction will be drawn between domestic and international surrogacy cases. There is a desire to encourage domestic surrogacy as there can be more control and there is less risk as far as exploitation of the surrogate is concerned.
The reforms would be a significant step forward as, provided intended parents follow the pathway and do everything they are supposed to do, the idea is that they would not have to issue court proceedings following the surrogacy arrangement in order to achieve legal parenthood. Whilst this new process would still require the consent of the surrogate, it is hoped that it would offer intended parents a fair, straightforward, and more cost-effective alternative to the one currently in place.
If you have any questions about parental orders, please contact our child law solicitors.