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Our new experts from Laytons Solicitors address the legal issues around starting a family

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Who Is The Parent?

“The question of who, in law, is or are the parent(s) of the child born is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important emotionally, psychologically, socially and legally than the answer to the question;

Who is my parent? Is this my child?”

Not my words, but the words of the most senior judge in the Family Courts of England & Wales. But what prompted him to ask this question? Isn’t it obvious who the parents of a child are?

The changing nature of social relationships and developments in medical science all combine to make the question of who is the legal parent of a child a legal minefield.

Take for example a surrogacy arrangement where the surrogate is using donor eggs. There is a genetic mother (the egg donor), a gestational mother (the surrogate) and the social psychological mother (the female intended parent). Who will be the legal mother when the child is born? In the same scenario, where donor sperm is used, who is the father? The genetic father will be the sperm donor the social psychological father will be the intended father. There is no gestational father, but what if the surrogate is married, or in a civil partnership?

Does her partner have any parental rights over the child when it is born?

What of an assisted reproduction scenario? Does the egg, sperm or embryo donor have any parental status when the child is born?

A moments reflection does indeed demonstrate the question “who are the parents” is far more complex than it might first look.

The law is beginning to grapple with these complicated questions to try and establish rules to create certainty for all involved. But certainty can only come at the cost of flexibility and inflexible rules create unexpected and unintended results.

For example, in a surrogacy arrangement, the law is established that the woman who gives birth is always the legal mother. If she is married, or in a civil partnership, her partner is the father or legal second parent unless they did not consent to treatment. For that situation to be changed in law, and for the intended parents to become the child’s legal parents, the Court has to make a parental order in favour of the intended parents. This can only be done 6 weeks after the child is born and only if one of the intended parents provided the egg or sperm used in the pregnancy. If this and several other conditions are not satisfied then the Court cannot make a parental order and other options will have to be considered, e.g. adoption.

In situations of assisted reproduction, the consent forms signed before treatment begins, seek to confer parental status on those whom it is intended will be the child’s parents at birth.

However, there are a myriad of consent forms needed to cover the ever-increasing range of possibilities depending on the particular family circumstances. Completing the right consent forms at the right time becomes more difficult bringing with it the possibility of unintended consequences as regards legal parentage at the time of the birth.

The law is different still for couples who embark upon their quest for a family through a private arrangement outside a clinic environment, or if there is an international dimension. Often when treatment begins, mistakes have already been made which create difficulties further down the road. The last thing any couple want at the end of their long journey to becoming a family is to find that they are holding a baby for whom they are not the legal parents. They must then face complex legal proceedings to try and rectify a position that could have been avoided if the right steps had been taken prior to commencing treatment.

For more information visit Laytons website www.laytons.com

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Fertility 360

You, Me & Co-parenting

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you-me-coparenting

The term co-parenting is not one that has a formal legal definition, but is a term that is becoming more widely used by the general public.

Previously, reference to co-parenting usually meant a situation where parents who were in a relationship had separated and were no longer living together, meaning they were having to care for their children separately.

In more recent times, the use of the phrase co-parenting includes couples who decide to have a child together, irrespective of their relationship. This might be two friends who both desperately want a child but who are not in a relationship or a same-sex couple who have a child with a friend acting as the third parent to facilitate conception.

In my practice as a divorce lawyer, I see the impact of parental separation and enforced co-parenting on children.  I firmly believe that in those scenarios it is not the separation of their parents per se that causes issues for the children concerned, but the manner in which the adults conduct themselves through the separation process and in particular how they work together as co-parents in different households.  Former partners who can put aside their own difficulties and work together in the best interests of their children can be very effective parents.  Indeed, I can give many examples of happy children following a good divorce and as many examples of unhappy children, caught in the middle of a failing/unhappy marriage.

Co-parents who make an active choice to be such, prior to conception, do not have to cope with the impact of their relationship breakdown on their abilities to co-parent effectively.  However, this does not eliminate disagreements that your typical divorced parents may face. For example, decisions as to whether a child attends state or private schooling or decisions as to religious and moral upbringing.

If there are disputes between co-parents as to what is best for the child, the Court has the power to make orders requiring adults to take or prevent them from taking steps.

In my field of practice, I often see these used where one parent decides they want to relocate, either abroad or to a different part of the UK which will impact upon the amount of time a child can spend with the other parent.  When the child is a baby when all co-parents are living close by, thoughts of moving away may be far from everybody’s mind.  However, over the course of a child’s minority, it is not uncommon for a parent to wish to relocate and this can cause enormous difficulties where previously a co-parenting arrangement worked well.

It is not possible to opt out of being a co-parent in the eyes of the law.  For example, a couple who decide to have a baby but subsequently go on to have other children, cannot decide that they are no longer parent to child number one.  Nor can agreements not to pursue co-parents for maintenance be enforced within the Court system, meaning anybody who finds themselves in a co-parenting situation, regardless of how it arose and any agreements reached, cannot avoid financial responsibility for their own child.

Co-parenting can be a very rewarding experience and provide a happy home life for children to grow up in.  However it is important that anybody who is choosing to co-parent discusses fully with their fellow co-parent the expectations of all involved to avoid, or minimise, the potential for later conflict.  A co-parenting agreement can help address issues at an early stage when all parties want what is best and encapsulates intentions at a time when cooperation is high.

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When Family Matters

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When Family Matters

The concept of family has changed beyond all recognition in the space of a generation. The idea of a nuclear family unit comprising of a married mum and dad with 2.4 children seems as outdated now as the idea of a world without mobile phones or the internet.

Nowadays, families are whatever we want them to be: parents of the same gender or different genders; civil-partnership, married or living together; children born by a variety of methods and with different genetic heritages. All are regarded the same by society – but not by the law.

The strains on modern family life – whatever shape the family takes, are enormous. However the journey to family begins, it is a sad consequence of those increased stresses within our modern world that separation, dissolution of civil-partnership and divorce are all on the increase.

One of the most common misconceptions I face in my legal practice day-to-day is when dealing with adults, who have lived together outside the legal framework of a civil-partnership or marriage but assume on separation that their financial arrangements will be dealt with in the same manner as their divorcing counterparts. There is a misconception that simply by living together for a period of time you acquire “rights” against your partner upon separation.

This is simply not true. There is no such thing in law as the common law wife.

The act of getting married or entering into a civil-partnership brings with it a legal financial responsibility towards your partner. On separation, the economically stronger partner can be compelled by the court to make financial provision for the economically weaker partner. This may take the form of providing property, cash, maintenance or sharing in pension provision. The court has sweeping powers to impose financial arrangements that the court deems to be fair with one of the court’s considerations being the welfare of any children. The court has the power to redistribute assets, regardless of whose name assets are in, their provenance, or the reasons why the relationship failed.

The same is not true following the separation of a couple who have lived together without taking the legal step of entering into civil-partnership or marriage.

Cohabitees acquire no financial responsibility towards each other, no matter how long their relationship exists. On separation, the property will be shared according to ownership, no maintenance payments are due and pension provision cannot be shared. There is an exception to this where there are children of the family. Child maintenance is always payable between separated parents, regardless of whether or not they were in a legal relationship. Furthermore, a parent can be compelled to settle property for the benefit of children during their minority, meaning for example that one parent can be compelled to provide the finances needed to purchase a property for the children to live in with their other parent. However, that property will be held on trust and will revert back to the paying parent once the children achieve a majority, rendering their former partner homeless.

If you are looking to start family life without being married or in a civil-partnership make sure you understand the legal vulnerabilities of your situation and address them.

The harshness of the law relating to cohabitees can be mitigated by careful planning at a time when relationships are good. Cohabitation Agreements, Trust Deeds and Wills, all regularly reviewed, can be used to ensure financial arrangements on separation match the expectations of all involved and provide adequately and fairly for both the adults and their children.

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Adoption

Are You Considering Adoption?

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There are many reasons why people choose adoption as the way to grow their family. For some it is their first choice, for others it is a decision taken when natural conception and/or fertility treatments have not succeeded.

Whatever the circumstances, adoption is the process through which the adoptive parent(s) assumes permanent legal responsibility for a child. Once the adoption process is finalised, the adoptive parent(s) is the legal parent(s) of the child and there is then no legal difference between an adopted child and one born into a biological family.

As at 31 March 2017 there were 5,440 children in England and Wales seeking adoptive placements. In the year ended 31 March 2017 4,370 children were placed in adoptive placements.

Potential adopters can be single, married, in civil partnerships or unmarried couples. It isn’t just local authorities who look for adoptive placements for children. There are numerous private adoption agencies who also seek adoptive placements for children. All agencies have their own criteria when considering prospective adopters and thus just because you have been turned down by one agency because you don’t satisfy their criteria, does not mean you cannot adopt a child. Prospective adopters are not limited to their local adoption agencies, nor are there restrictions on the number of agencies they can contact.

Whilst all adoption orders are the same in that they permanently sever the link between a child and their birth family in law, not all adoptions are the same. Prospective adopters will need to think carefully about what type of contact, if any, they would wish to have with the birth family. Some prospective adopters are happy to have a completely open adoption where there is a full exchange of information between the birth family and the adoptive family. Other adopters want to completely close the adoption meaning there is no communication or information shared between the two families. There is also a third way, where limited information is shared between the birth family and adoptive family usually via a third party to preserve anonymity. Whilst at first blush it may seem tempting for prospective adopters to want a closed adoption scenario (to protect against disruption by a birth family), that has to be weighed up against the importance to a child of understanding their genetic heritage as they grow older and the ability of adoptive parents to provide that information via first-hand knowledge of the birth family.

Prospective adopters may also have to consider whether they wish to take on a sibling group and/or be considered as potential adopters for any future siblings.

In recognition of the fact that delay in decision making for children is detrimental to their welfare, in recent times a system of concurrent planning for children has been developed whereby children can be placed with foster carers, on the basis that if a return home to their birth family is impossible, those foster parents will go on to offer an adoptive placement. For prospective adopters this can result in a child being placed with them younger and earlier in the process but brings with it the possibility that a child they have welcomed into their family is subsequently returned home to their birth family. In the early stages of the placement, a return home to the birth family is the primary focus of work done with the child. This is something that can be very difficult for prospective adopters to come to terms with and is not something all potential adopters can deal with given the emotions involved.

For more legal advice on adopting please visit the laytons website or call 0161 214 1600 and ask for Liz Bottrill.

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