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Legal Thoughts on Parentage

The law surrounding parentage is complex and ever-changing. In days gone by the question of who were a child’s parents was simple. The woman who gave birth was the mother and her husband was the father. The social climate of the time, and the absence of any form of DNA testing, meant this scenario would go unchallenged. Even if it wasn’t socially correct, legally the world was a far simpler place.

The only exception to this, and the only legally recognised source of parentage save by birth, was adoption. Adoptions were secretive and closed. The children themselves would not be told and likely would never know that the parents they grew up with were not their birth parents. The law facilitated this form of parenting by ensuring the adoption process was secretive and closed and the documentation produced concealed both the identity of the birth parents and the adoptive parents.

As the social climate and social norms began to change so did people’s attitudes towards what was acceptable as a family structure. Couples who chose to live together rather than being married became more the norm. Same-sex relationships became recognised in law and socially acceptable. Families began to look very different.

Advances in medical science ran alongside this change in social norms. The possibility of a child of their own became a reality for couples who previously simply could not have envisaged children being part of their future. The development of IVF gave hope to heterosexual childless couples; the resulting science provided opportunities for same sex couples to have their own children; the availability of surrogacy both nationally and internationality and the advent of DNA testing all meant that the concept that the only parents of a child can be the woman who gave birth and her husband has within a generation become totally antiquated and inadequate.

The law has had to change.

The Children Act 1989 represented a complete sea change in respect of the law on children. Initially billed as a piece of consolidating legislation, pulling strands of child law from various disjointed statutes into one place, it quickly became apparent that the Children Act was far more than this. It represented a change in the way in which the law operated around children, including in respect of their parentage.

It was the Children Act 1989 which introduced the legal concept of parental responsibility. This concept still exists today and notwithstanding its existence now for more than 25 years, it is a concept that is still commonly misunderstood and misquoted.

Parental responsibility is a legal term that means having all the legal rights, duties, powers and responsibilities for a child (a child being a person under the age of 18). Parental Responsibility is not the same as being a parent. A parent does not always have Parental Responsibility. Someone who has Parental Responsibility may not be a parent. Parental Responsibility can be delegated to an alternative carer or given to somebody by operation of an order of the Court, e.g. a local authority.

There is no limit to the number of people who can have parental responsibility for a child. In terms, it is a legal concept defining the responsibilities someone can have for a child but does not equate to parentage.

Parentage determines who is a child’s legal mother and legal father. Dependent upon the circumstances surrounding a child’s conception and birth, the way in which the intended parents become the legal parents can be very different.

There have been a number of cases before the Courts in the last few years where the Courts have had to determine issues of parentage. Where there is a dispute over who the parents of the child are, the Court is often faced with an application by one party for a declaration of parentage. One such case involved a father, who had been in a relationship with the mother for some years prior to the birth of their child. He had to make an application for a declaration of parentage following the breakdown of the relationship. The couple had been unable to conceive naturally and received IVF treatment which concluded with the mother conceiving by sperm donation. As far as the father was concerned, the clear intention at the time of the treatment was that he would be the legal parent of the child. All the necessary forms were signed by both parents at the fertility clinic. The couple separated soon after the child was born and the father’s contact completely broke down when the child was one year old. The father made an application to the Court for a declaration of parentage and a Court order permitting him to see the child. During the course of the proceedings, the mother denied that the forms confirming legal parentage of the father had actually been signed by both of them at the clinic. The mother was effectively trying to wipe the father out of the child’s life. The clinic wasn’t particularly helpful during the course of the proceedings but eventually produced the information which confirmed that the forms had been correctly signed. At this point, the Court formalised the parents’ agreement and made a declaration of parentage in favour of the father. The father was then also able to re-establish contact with the child.

Difficulties can arise when consent forms and medical records are lost during the process of treatment. In September 2016 the Court had to determine a case and make a declaration of parentage in favour of a woman who had always been intended to be the legal parent of her civil partner’s child but who had been ordered to be an adoptive parent after the reproductive health clinic misplaced her consent forms. The applicant mother applied to the Court for a declaration that her partner was the legal parent of her child and for a revocation of the order previously made that her partner was an adoptive parent. The problem had arisen because the trust’s records did not contain the relevant form signed by the mother’s partner and the prevailing view of the law at the time was that the only option was to apply for an order that the mother’s partner is made an adoptive parent. The adoption order was subsequently issued but then revoked and a declaration of parentage made. This was a highly unusual case because it is very very rare that the Court will revoke an adoption order once made.

The law surrounding surrogacy has also been the subject of the Court’s interpretation in recent times. In the UK, surrogacy agreements are important but not legally binding. They cannot be drafted by lawyers in the UK but in other jurisdictions they often are. Although not legally binding, they are clearly a significant piece of evidence and set out the parameters of what has been agreed, i.e. is a contract is formed between the surrogate and the commissioning parents which sets out the expectations of each other. In a surrogacy arrangement, the surrogate mother is always the legal parent at birth. Dependent upon her marital status, her partner may be the second parent at birth. The only way to transfer parental responsibility to the commissioning couple, who can then be regarded as the parents of a child born, is by the making of a parental order by the Court.

The law provides that applicants for a parental order must be husband and wife; or civil partners of each other; or two persons living as partners in an enduring family relationship. This has been put to the test in recent times with a single person applying for a parental order in respect of a child born as a result of a surrogacy arrangement. The Court has determined at the highest level that UK law requiring that parental orders can only be made in favour of two people is discriminatory but that the Courts cannot change this, it is a matter for parliament. The government have said that they intend to update the legislation on parental orders to ensure it is compatible with the Court’s judgement and indicating an intention to introduce a remedial order to achieve this so that single people can also apply for parental orders on the same basis as couples. The stated intention of the government was that a piece of legislation in respect of remedial orders would be introduced to parliament early in 2017. As yet no such legislation has been introduced and so the position remains that single people cannot apply to the Court for parental orders to confer legal parentage upon them following a surrogacy arrangement.

These are just some of the issues that the Court has had to deal with in recent times. The progression of medical science and social relationships means that there will be many more in the future. It is always important when embarking on starting a family to make sure that the legal impact of decision making is considered as well as the medical issues involved.

Liz Bottrill
Liz Bottrill
Liz Bottrill is a Partner in the Family Law Team at Laytons Solicitors with over 25 years’ experience in the field. She has a particular interest and expertise in the law relating to children and fertility.

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