LGBTQ+ parents and family law: what is the situation in the UK?

Pride month is the opportunity for us to reflect on the recent changes in the law surrounding LGBTQ+ parents and their parental responsibilities in child arrangements. From child custody and visitation rights, to surrogacy and separation, let’s explore the key legal rights and protections for LGBTQ+ families.

Legal recognition of LGBTQ+ families in the UK

With the introduction of the Adoption and Children Act 2002, LGBTQ+ parents were put on an equal footing with heterosexual couples so far as their children were concerned. LGBTQ+ parents enjoy a greater recognition of their rights and responsibilities towards children, notably in the case of a separation. Additionally, same-sex couples now have the opportunity to adopt a child together, to enter into a surrogacy agreement or to adopt their existing partner’s child.

How does the Family Court consider issues relevant to the children?

In any case, when a relationship breaks down, the most important matter for the Family Court will be to examine the situation from the child’s perspective. The judge can make orders varying from how often a parent can spend time with their child to the issue of their child’s main residence. 

It is often recommended, when possible, for the parents to try to agree their own arrangements before considering engaging court proceedings. However, we recognise that communication can be difficult. Some parents will attempt mediation, but although this can be a very useful process to many parents, it is not always successful. In this instance, they will have the right to apply to the Family Court for a Child Arrangements Order. A judge will then come to a decision after both parties have had the opportunity to present their arguments.

It is important to keep in mind that any decision taken by the judge will be considered in the light of the child’s best interests and will be made with their welfare firmly in mind.

Second parent adoption and parental rights

A second parent adoption is a legal process available to both heterosexual and LGBTQ+ couples through which someone can adopt their existing partner’s child. This will not alter the existing parental responsibilities of the biological parent. Both partners will become legal parents and achieve an equal status in their relationship with the child.

The good news with this process is that an adoptive parent will then have no less a legal standing over the child than a biological parent. Both ultimately share the right to begin court proceedings. This prevents the adopting partner from being excluded from child arrangements if the relationship breaks down. 

Indeed, prior to the introduction of the Adoption and Children Act 2000, a partner would have not retained any rights over the child after a divorce or a separation. Despite many years of being cared for by them, it would have been almost impossible for the child in question to live with them as they would have no official parental and legal responsibilities. 

Once parental responsibilities are established through the adoption process, both parents will enjoy the same responsibilities and have the right to apply for a Child Arrangements Order. It is a welcomed victory in favour of recognising LGBTQ+ families.

As mentioned previously, the main concern for a judge remains the child’s welfare, which will ultimately determine the best possible outcome.

Unmarried same sex couples and birth certificates

In 2008, the Human Fertilisation and Embryology Act gave the prospect to unmarried same sex parents of being registered on the child’s birth certificate. The law gave the opportunity to female couples to be jointly recognised and named as parents at the time of birth. When the couple are unmarried but in a civil partnership or if the child was conceived in a UK fertility clinic, the law is straightforward and both partners will obtain an automatic right to be included on the birth certificate.

If in a relationship, neither married nor in a civil partnership, but the insemination took place in a UK licensed 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.

Where does this leave unmarried male couples?

When a couple decides to embark on the surrogacy journey, it is important to remember that the surrogate (the woman who carries and gives birth to the child) will be the legal mother at birth, and her spouse or civil partner will be considered as the legal father. 

Luckily, there is a way for the other couple to be recognised as legal parents. The surrogate can sign a parental order within six months from the birth which will end her parental responsibilities and enable the same sex couple to be registered on the child’s birth certificate. Once this process is completed, both parents will be subject to the responsibilities mentioned above.

The law in this area continues to evolve in order to ensure that the welfare of the child remains the first and paramount consideration. 

At Birkett Long, we listen to the needs of our clients and treat each client as an individual. This ensures we are able to tailor our advice and help guide you through the legal process. If there is anything in this article which you would like further advice on, please contact us for a free initial chat about how we can best help you on 01206 217320.

Written by Lisa M.