Establishing who has Parental Responsibility over a child can seem straightforward. However, where same sex couples are concerned the law can be quite confusing. This article looks at how Parental Responsibility is established for female same sex couples. A further article looking at Parental Responsibility for male same sex couples will follow in the coming weeks.
Parental Responsibility Explained
Parental Responsibility is legally defined in England and Wales as all the rights, duties, powers, responsibilities and authority which, by law, a parent has in relation to their child and the child’s property.
In essence, this means that those with Parental Responsibility can make important decisions such as which school the child attends, what medical treatment they receive and whether they can be taken abroad.
There is no limit as to how many people can have Parental Responsibility for one child.
Where parents are of the opposite sex, the mother will automatically obtain Parental Responsibility. For the father to acquire Parental Responsibility he must be either married to the mother of the child at the time of the birth or be named on the birth certificate (for children born after December 2003). Also if the child’s father marries the child’s mother he will obtain Parental Responsibility in this way.
The only other way in which a father can obtain Parental Responsibility is if this has been ordered by the Court.
Female Same Sex Couples
In cases where there are two female parents, one factor will be whether the two people have entered into a civil partnership or marriage. This is similar to heterosexual couples, as detailed above.
If the couple has used IVF treatment as a means of conceiving the child then the mother carrying the child will automatically obtain Parental Responsibility. The spouse of the mother will then be able to be named on the birth certificate meaning they can also obtain Parental Responsibility.
However, matters become more complicated when the two people are not married.
In instances where a mother has carried the child, she will still automatically obtain Parental Responsibility. But if a known male donor has been used (such as a friend) then the donor will be the next person to be considered to be in receipt of Parental Responsibility, over the mother’s partner.
If the donor has expressed a wish in having Parental Responsibility and the mother is in agreement, then the donor can obtain Parental Responsibility by being registered on the birth certificate.
However, if the donor and the birth mother are not in agreement an application can be made to the Court. In considering whether a sperm donor shall be granted Parental Responsibility for a child, the Court’s main consideration will be the welfare of the child. This means that if the Court deems that granting Parental Responsibility may negatively impact on the welfare of the child, then a donor may not be successful in their application.
If the donor has expressed that he would like to remain anonymous or simply would not like Parental Responsibility then, although he may be the biological father of the child, he will not acquire Parental Responsibility.
An unmarried partner of the mother will face difficulties if looking to jointly register the birth at the registry. The unmarried partner will need to make an application to the Court and will also require consent of their partner (the mother) and anyone else who has Parental Responsibility for the child.
Making an Application to Court
When considering making an application to the Court in respect of Parental Responsibility it is important to keep in mind that the welfare of the child is paramount in such cases. The Court will not grant Parental Responsibility to any person if they believe doing so will have a negative impact on the child.
Our Family Law Solicitors offer a fixed fee Parental Responsibility Agreement for £240 including VAT.
For free initial legal advice call our Family Law Solicitors on 03306069626 or contact us online and we will call you.