Legal Rights of Non-Biological Parents in LGBTQ+ Families

Following the breakdown of a relationship, parents can agree on their child arrangements. Where possible, it is recommended that the parents resolve and agree their own child arrangements outside of the court through discussions or alternative dispute resolution methods such as mediation. In some circumstances, it is not always possible to agree the child arrangements.

Instead, the court can make an Order. Either parent can apply to the Family Court for a Child Arrangements Order, which will set out who the child is to live with, spend time with and when this should happen. Where the court makes a Child Arrangements Order, the child’s welfare will be the paramount consideration, and a decision must be in the child’s best interests. The Adoption and Children Act 2002 and The Human Fertilisation and Embryology Act 2008 have enabled LGBTQ+ couples to secure parental rights, which continue post-separation.

Adoption: Securing parental rights for LGBTQ+ couples

Adoption is an option which is available to both heterosexual and LGBTQ+ couples under the Adoption and Children Act 2002. Couples can adopt a child together, or they can adopt their existing partner’s child. Both partners will become the legal parents, and each parent will have parental responsibility of the child.

Parental responsibility means all the rights, duties, powers, responsibilities, and authority that the parent of a child has in relation to the child and their property by law. If the relationship breaks down, the adoptive parent will have the same legal rights as the biological parent. The adoptive parent can make an application for a Child Arrangements Order, and they will be a party to the proceedings if the other parent makes a Child Arrangements Order.

Surrogacy and unmarried female couples

The Human Fertilisation and Embryology Act 2008 provides female couples with an opportunity to both be treated as the parent of the child. Where a female couple are unmarried but in a civil partnership or if the child was conceived in a UK fertility clinic, both couples are treated as a parent of the child. Both will obtain an automatic right to be included on the birth certificate.

Where a female couple are in a relationship but neither married nor in a civil partnership, if the insemination took place in a licensed UK fertility clinic, a form can be completed which will enable the non-birth mother to be jointly recognised as the legal mother alongside the biological parent.

Surrogacy and unmarried male couples

The surrogate mother (the woman who gives birth to the baby, whether genetically related or not) is treated as the child’s legal mother. If the surrogate is married or in a civil partnership, her husband/partner will be treated as the legal father.

Whether married, in a civil partnership, or unmarried but in a relationship, a male couple who uses surrogacy can obtain a parental order. The surrogate can sign the parental order, which must be completed within six months of the child’s birth. The parental order ends the surrogate’s parental responsibility; instead, both male parents obtain parental responsibility.

Child Arrangements Order: Ensuring the best interests of the child

The making of the Parental Order gives authority for both male parents to be entered onto the birth certificate.  If the relationship breaks down, each parent can make an application to the court for a Child Arrangements Order.

As discussed above, regardless of how parental rights are secured, the most important consideration for a judge is the welfare of the child and ensuring that the order made is in the child’s best interests.

How can we help?

For further information on securing parental rights and your parental rights post-separation, please get in touch for a free 15-minute telephone consultation. I can be contacted on 0330 818 3292 or via email at chloe.holmes@birkettlong.co.uk.