What constitutes a family is constantly evolving and today, families can be structed in many different ways, with same sex parenting becoming more and more common.
Whilst there have been huge strides in recognising and supporting same sex parenting in recent years, the reality remains that the legal position of same sex parents in relation to their children can be complex and rather daunting. This is in direct contrast to heterosexual couples where the position is rather more straight forward.
In a same sex couple, a party’s position will depend upon the circumstances in which the children were conceived, the legal status of the parents involved, their gender and crucially, due to changes in legislation, the date on which the child was born .
Parental responsibility rights for same sex couples
If a child was born before 1 September 2009, the birth mother and, if he was named on the birth certificate, the donor father, automatically acquired parental responsibility . The birth mother’s same sex partner can obtain parental responsibility by entering into a parental responsibility agreement with the birth mother or by seeking a parental responsibility order through the Family court (or indeed a “lives with” child arrangements order). The donor father and their partner (male or female) may also acquire parental responsibility by the same means. The situation is different, if however, the child is born on or after 1 September 2009. Since then it has been possible for lesbian couples to be named on the birth certificate as joint parents for the child, . They can do this regardless of how the child is conceived, providing they were either in a civil partnership or (since 2014) were married at the time that the child was conceived.
Even if a lesbian couple were not in a civil partnership or married at the time of conception, it is still possible for them both to be named on the birth certificate. To achieve this they must have conceived together through a fertility clinic licensed by the Human Fertilisation and Embryology Authority, and signed consent forms choosing to be named on the birth certificate before the date of conception. In such circumstances both mothers will acquire parental responsibility on the birth of the child . It also means that a donor father will not have that status as a child can currently only have two legal parents.
Recognition for family units
Being recognised as a child’s legal parent is understandably important to people. Whilst it affords them certain rights and imposes obligations on them, it is also essential emotionally to the parents and the children that they are raising.
Having said that, there are many same sex couples who have children together and become a family unit without regularising their legal position. In situations like these, if a dispute arises and court proceedings are necessary to try and resolve it, the Family Court has, in recent cases, recognised the concept of a “psychological parent”. This approach accepts that the “family unit” in which the child is raised is likely to be far more important to the child’s day to day welfare and wellbeing than who is the biological or legal parent.
Options for would-be parents
There are many other ways in which lesbians or gay men who are single and same sex couples can have children. This could be by way of surrogacy (which whilst legal in the UK, surrogacy arrangements are not enforceable in law), adoption, or IVF through a licensed clinic or more informally through friends although the latter option can be fraught with difficulties.
This is a complex area and proper legal advice should be sought before embarking on becoming same sex parents to ensure that the parties are fully informed of the options available to them and what that will mean for them on a legal basis.
For help and advice on this topic and related issues, please contact Liz at liz.orman@salaw.com or call 01727 798 064
