What is a parental order?

Following the birth of a child born to a surrogate mother, the usual course of action is for the intended parents to apply for a parental order (sometimes called a ‘parenting order’).

A parental order is a set of legal orders made by the court about parenting arrangements for a child.

A parental order may be made on an application by two people and provides for a child to be treated in law as the child of the applicants if:

  1. the child has been carried by a woman who is not one of the applicants, as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination, and
  2. the gametes of at least one of the applicants were used to bring about the creation of the embryo.

What exactly does a parental order achieve?

  • A parental order is essentially declaratory in nature and confers a fundamental status on an applicant and on the child.
  • Parental orders take effect from the date when they are made, or such later date as the court may specify.
  • A parental order has a transformative effect on the legal relationship between the child and the applicants, and also in relation to the practical and psychological realities of the child’s identity. Parental orders have profound personal, emotional, social and, in some cases, cultural and religious consequences. They create the psychological relationship of parent and child with all its far-reaching consequences that are lifelong.
  • When applying for a parental order, changing the child’s surname does not require a specific order. The applicants can nominate a new surname for the child and the registration of the parental order is evidence of the parental order as if it were a birth registration in the new family name.
  • The parental order grants parental responsibility for the child exclusively in the applicants. It extinguishes the parental responsibility any person had before the order. It confers British citizenship upon the child if one or both of the applicants is/are British citizens—although the court have highlighted the importance of not using a parental order, which would confer British nationality, to circumvent immigration law.
  • The order treats the child who is the subject of a parental order as if they had been born as the child of the persons who obtained the parental order and as the legitimate child of those persons.

The applicants

The applicants for a parental order must be:

  1. husband and wife
  2. civil partners of each other, or
  3. two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship to each other (what is an ‘enduring family relationship’ is determined on a case by case basis)

As the law stands at the moment it is not open to the court to make a parental order on the application of one person.

The President of the Family Division has made a declaration that the law in this regard is  incompatible with the rights under the European Convention on Human Rights insofar as they prevent an applicant from obtaining a parental order on the sole ground of their status as a single person, as opposed to being part of a couple.

The requirement that an application for a parental order can be made only by two people has been found to be a discriminatory interference with a single person’s rights to private and family life, which is inconsistent with the ECHR. The government is in the process of updating the legislation on parental orders to allow single people to apply for parental orders on the same basis as couples.

The respondents

The respondents to an application for a parental order may be:

  1. the woman who carried the child
  2. the other legally defined parent (if any)
  3. any person in whose favour there is provision for contact with the child, or
  4. any other person or body with parental responsibility for the child at the date of the application on the direction of the court where that person makes a request to be a party

The court may at any time direct that any other person or body be made a respondent to the proceedings, or that a respondent be removed from the proceedings, and make consequential directions as to service and management of the proceedings.

When can parental orders be made?

The court may make an order providing for a child to be treated in law as the child of the applicants (whether in the UK or elsewhere) if:

  1. the child has been carried by a woman, other than one of the applicants, and conceived as a result of the placing in her of:
    1. an embryo, or
    2. sperm and eggs, or
    3. her artificial insemination, and
  2. the gametes of at least one of the applicants were used to bring about the creation of the embryo; and
  3. certain conditions are satisfied, see: Conditions that must be met are set out in HFEA 2008, s 54(1)(c).

Conditions that must be met

Parental order applications are subject to a number of conditions including:

  1. That the making of the order is in the child’s best interests.
  2. The application must be made within six months of the child’s birth—however it should be noted that it has been acknowledged by the court that said that the legislation does not preclude the court making an order outside the six-month time limit assuming that parliament intended a ‘sensible result’. The absence of an absolute time limit raises the question of how far outside the six months an application will be permitted. Difficulties can occur if commissioning parents do not make a prompt application for a parental order.
  3. At the time of the application and the making of the order, the child’s home must be with the applicants.
  4. At the time of the application and the making of the order, either or both of the applicants must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man.
  5. At the time of the making of the order, both applicants must have attained the age of 18.
  6. The court must be satisfied that both the woman who carried the child and any other person who is a parent of the child but is not one of the applicants (including any man who is the father or any woman who is a parent) have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. The agreement of the woman who carried the child is ineffective if given by her less than six weeks after the child’s birth. The court has no power to make a parental order in favour of biological parents without agreement. Agreement is not required of a person who cannot be found or is incapable of giving agreement.
  7. The court must be satisfied that no money or other benefit other than for expenses reasonably incurred has been given or received by either of the applicants.

The court procedure

The procedure for applying for parental orders is governed by Part 13 of the Family Procedure Rules 2010 (FPR 2010).

FPR 2010 sets out the forms that are applicable.

As soon as practicable after the issue of proceedings the court must:

  1. set a date for the first directions hearing
  2. appoint a parental order reporter
  3. set a date for the hearing of the application

The applicants must, within 14 days before the hearing or first directions hearing, serve on the respondents:

  1. the application
  2. a form for acknowledging service, and
  3. a notice of proceedings

Within seven days of service of an application for a parental order, each respondent must file an acknowledgment of service and serve it on all the other parties.

At the first directions hearing the court will fix a timetable and give directions for the filing of any report from a parental order reporter and any other evidence.

A court officer will give notice to the parties and to the parental order reporter of the date and place where the application will be heard.

Any person who has been given notice may attend the final hearing and be heard on the question of whether an order should be made.

All parental orders are recorded in a parental order register maintained by the Registrar General.

Surrogacy is increasing in the UK and it is important that families understand the legal position, as well as being supported from an emotional perspective. Here are a selection of useful containing information and resources:

http://www.surrogacyuk.org/

https://www.gov.uk/legal-rights-when-using-surrogates-and-donors

https://www.cafcass.gov.uk

 

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