Parental Responsibility for Same Sex Parents (Male)
16 May 2018
Also see our previous article, Parental Responsibility for Same Sex Parents (Female).
Establishing Parental Responsibility can seem straightforward however where same sex couples are concerned the law can be quite confusing. In this article we look at Parental Responsibility in instances where the same sex couple are male.
What is Parental Responsibility?
In England and Wales, Parental Responsibility is legally defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
This means that those with Parental Responsibility can make important decisions such as which school the child attends, what medical treatment they receive and who can take the child abroad.
There is no limit as to how many people can have Parental Responsibility in respect of 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 (if the child was born after December 2003). Also if the child’s father marries the child’s mother he will obtain Parental Responsibility this way.
The only other way in which a father can obtain Parental Responsibility is if this has been ordered by the Court.
Surrogacy and Parental Orders
One option available to male couples if they wish to have a child is to commission a surrogate. If a male same sex couple does want to use surrogacy as a means of conceiving a child, it’s important to note that there are some difficulties around Parental Responsibility and commissioning a surrogate.
Using a surrogate can lead to questions as to who the mother of the child is. It is advisable that married couples or those in a Civil Partnership obtain the consent of the surrogate and make an application for a Parental Order under the ‘Human Fertilization and Embryology Act 1990’.
When considering an application for a Parental Order, the Court will consider the welfare of the child and whether the making of such an Order will have a negative impact. If the couple is successful in their application the Court Order will have the effect of removing any Parental Responsibility from the surrogate. The couple will then have full Parental Responsibility in relation to the child.
Another option available to married same sex male couples (or those in a Civil Partnership) is to make an application to the Court for an Adoption Order. If the couple uses an adoption agency then certain criteria must be met prior to making an application.
Before the Order can be granted, the child must be placed with the couple for a continuous period of ten weeks. The agency will then need to view the child in the couple’s care and prepare a report dealing with a variety of issues, including the health of the couple making the application.
Prior to proceeding to Court, there is certain criteria which must be met, including:
- The child must be at least six weeks old
- The consent of the local authority must be obtained for the order to be made
Again when making an application for an Adoption Order the welfare of the child will be paramount in the Court’s decision.