Legal Parenthood & Parental Responsibility

LAYTONS Legal Parenthood & Parental Responsibility The Fertility Show | 25 & 26 March

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LAYTONS We understand that family matters require more than just negotiating skills and technical excellence.

We never lose sight of the real issues that are important to you, and work closely with you to achieve swift, practical and, wherever possible, amicable solutions.

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Legal Parenthood & Parental Responsibility Getting it right from the beginning The Fertility Show | 25-26 March 2017

Legal Parenthood & Parental Responsibility | The Fertility Show 2017

Legal Parentage & Parental Responsibility Who are the legal parents of a child born through assisted reproduction?

Different countries deal with this issue in different ways and therefore it is always important to take country specific advice. In the UK however, the person who carries the child through pregnancy is considered to be the child’s legal mother.

The position regarding the legal father/ second parent is slightly more complicated and depends upon various factors including:

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whether a licensed clinic was used for the treatment

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whether the mother of the child is married or in a civil partnership

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what consents were obtained by the child’s mother and intended father/second parent and whether the consents were obtained before treatment commenced

Issues of parentage should be considered from the outset to ensure that, wherever possible, the intended parents are also the legal parents at birth. It is important that advice is sought early as some formalities must be in place before treatment commences and failure to comply with the formalities may lead to unintended consequences and difficulties in the future.

If the legal position does not reflect the intended position then steps will need to be taken to ensure no future difficulties arise regarding parentage. This may necessitate applications to the court for one or more of the following:

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Parental Orders Parental Responsibility Declarations as to Parentage

Legal Parenthood & Parental Responsibility | The Fertility Show 2017

For some families, it is not possible for the child’s intended parents to be the child’s legal parents at birth. An example of this is when the person carrying the child is not the child’s intended mother. In some countries, it is possible to obtain a pre-birth order setting out who the child’s parents will be. This is not possible in the UK and indeed any agreement reached between the person carrying the child (and their husband/civil partner) and the intended parents cannot be enforced.

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Legal Parenthood & Parental Responsibility | The Fertility Show 2017

Parental Orders For births involving surrogacy, the primary method to change the child’s legal parents is through an application for a parental order.

This is a court process resulting in the intended parents becoming the child’s legal parents, which is then recorded on a new birth certificate. Even if the surrogacy arrangement takes place abroad, it is important to obtain advice about UK law to ensure that the intended parents will be considered the child’s legal parents in the UK. As it is a court process, there are various requirements for this order to be granted including:

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conception must have taken place by embryo transfer or artificial insemination at least one of the intended parents must be the child’s biological parent the intended parents must be married, in a civil partnership or in an enduring family relationship

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the child must live with the intended parents and at least one of the intended parents must be domiciled in the UK the child’s legal parents at birth must freely consent to the surrogacy arrangement no more than ‘reasonable expenses’ have been paid to the surrogate mother (we can provide guidance on what constitutes reasonable expenses within a surrogacy arrangement)

Some of the requirements need to be considered and reviewed throughout the process to ensure ongoing compliance. We can provide guidance and draft relevant documentation to be submitted to court.

Applications must be made within six months from birth, allowing six weeks for the surrogate mother to give her fully informed, unconditional consent.

Legal Parenthood & Parental Responsibility | The Fertility Show 2017

Parental Responsibility 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’

A child’s legal mother will automatically have parental responsibility; a father will have this if he is married to the child’s mother or listed on the child’s birth certificate.

There is no limit on how many people can share parental responsibility.

Legal parents who do not satisfy the father criteria set out above, or a step parent, can apply to the court for parental responsibility of a child.

This can either be done by a joint form with the child’s mother, or by obtaining a parental responsibility declaration from the court. We are able to assist and advise in relation to both.

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Legal Parenthood & Parental Responsibility | The Fertility Show 2017

Declarations as to Parentage Where there is a dispute over paternity, the court has the power to make declarations as to a child’s parentage. This might be necessary if:

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a father denies paternity a mother disputes paternity appropriate consent forms are not completed, or are misplaced amendments to birth certificates are necessary

Legal Parenthood & Parental Responsibility | The Fertility Show 2017

Future of Fertility Law This area of law is rapidly developing. For example, at present a single parent cannot apply for a parental order for their child born through surrogacy. The Government has however set out proposals to amend this area, the details of which are due in 2017.

It is important to get up to date legal advice on the particular circumstances of your family to ensure no legal complications arise in the future.

If you wish to discuss any of the points raised by the information set out, please get in touch with a member of our family team on: 0161 214 1600 or see overleaf for further details of our team in Manchester and their email contact details.

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Family & Matrimonial “Laytons advises on all areas of family law including divorce, children issues and pre-marital agreements.

Head of department Christine Barker is ‘highly experienced, well prepared and adopts a no-nonsense approach to provide sensible solutions’.” — Legal 500 Our Team Christine Barker Partner christine.barker@laytons.com +44 (0)161 214 1600

Liz Bottrill Partner liz.bottrill@laytons.com +44 (0)161 214 1600

David Burrows Solicitor david.burrows@laytons.com +44 (0)161 214 1600

Christine has practised matrimonial work for over 30 years and, according to Legal 500, is “the best financial relief lawyer in Manchester” with an excellent reputation for her work due to her ‘steely determination to get the job done’. She is highly sought after on a national basis.

With 25 years experience, Liz is complimented by her clients on her sound legal knowledge and pragmatic advice. She ensures her clients achieve the best outcome possible in the particular circumstances of their case and in the most cost-effective manner.

David deals with a wide range of family related matters with a particular interest in supporting unconventional families. As a member of the LGBT community, David has a vested interest in the development and success of this fast changing area of law and is keen to support its progression.

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This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.

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