Laws on Adoption and Parental Responsibility

Adoption is an option for many people in a variety of circumstances, whether due to fertility issues, entering into new relationships, or stepping in to care for a young relative when their parents are unable to do so. There are numerous aspects to consider.

This article provides a concise overview of the key factors involved in adoption and parental responsibility. It's highly recommended to seek specialist legal advice before making any decisions in this area to fully understand the implications, your rights, and the processes involved.

Adopting Your Partner’s Child
If you’re looking to adopt your partner’s child under UK law, you must notify your local council at least three months before applying to the court for an adoption order. Additionally, the child must have lived with both the parent and their partner for a minimum of six months. Following this, an assessment similar to those conducted by adoption agencies will be carried out.

Should the adoption order be granted, it will remove parental responsibility from the child’s other biological parent or any other individual who currently holds that responsibility.

When the Child Maintains Contact with Their Other Parent
If you are married or in a civil partnership, you can enter into a Parental Responsibility Agreement. This requires the consent of both birth parents (assuming they have parental responsibility) and the step-parent. If unanimous agreement cannot be reached, you have the option to apply to the court for a Parental Responsibility Order.

It’s worth noting that more than two people can hold parental responsibility for a child. This means that even if a step-parent is granted parental responsibility, both biological parents retain theirs as well.

With parental responsibility comes the obligation to:

• Provide a home for the child

• Protect and maintain the child

• Discipline the child

• Choose and provide for the child’s education

• Consent to the child’s medical treatment

• Name the child and agree to any changes of name

• Manage the child’s property

This responsibility continues until the child reaches 18 years of age.

Using a Donor
If you give birth to a child, even with a donor egg, you are considered the legal birth parent. In cases where a sperm donor is used, several factors determine whether a non-birth parent needs to adopt the child or if they are automatically recognised on the birth certificate. A key factor is whether the conception occurs at a clinic licensed by the Human Fertilisation & Embryology Authority (HFEA). Let’s look at the different scenarios:

Using an HFEA Licensed Clinic for Artificial Insemination (IUI)
The birth mother is automatically recognised as a legal parent. If you are married or in a civil partnership at the time of the fertility treatment, your partner will also automatically be recognised as a legal parent.

For couples not married or in a civil partnership, steps can be taken to ensure both parents are named on the birth certificate. By using a licensed HFEA clinic and signing a parenthood election form before conception, the non-birth mother can be recognised as a legal parent. This allows both parents to have equal parental status at the child’s birth and be named on the birth certificate.

The donor has no legal obligations toward the child born from their donation.

Using a Non-HFEA Licensed Clinic or Home Insemination
In situations where a non-HFEA licensed clinic is used, or where insemination is done at home and the couple is not married or in a civil partnership, the donor is considered the legal father of the child. As with any legal parent, the donor may have financial responsibilities. Therefore, it is advisable to arrange for the second parent to adopt the child as soon as possible.

Under UK adoption laws, an adoption order removes the parental responsibility of the birth parents, except when a stepparent is adopting. In such cases, the biological parent’s partner can retain their parental responsibility while the donor relinquishes theirs.

Surrogacy
Surrogacy is legal in the UK, but paying a surrogate beyond reasonable expenses is not permitted.

In a surrogacy arrangement, a woman agrees to carry a child for another person or couple, with the intention of handing over the child at birth to be raised by them.

Here are some key points to consider in surrogacy cases:

• The surrogate is the legal parent at birth.

• If the surrogate is married or in a civil partnership, their spouse or civil partner will automatically be recognised as the second parent unless they withhold consent.

• If the surrogate is unmarried, the intended father (if he is the biological father) usually becomes the legal father.

• Legal parenthood can be transferred to the intended parent(s) after the child’s birth through a parental order or adoption.

• While a surrogacy agreement is not legally enforceable, having it in writing can help ensure clear communication from the start.

• If disagreements arise at birth over who should be the legal parents, the courts will make a decision based on the child’s best interests.

Adoption and Parental Orders After Surrogacy
To obtain a parental order, at least one of the intended parents must be genetically related to the child. If no genetic link exists, adoption becomes necessary to establish legal parenthood.

More detailed information on the specific legal requirements for adoption and parental orders following surrogacy can be found here.

Special Guardianship
The Family Courts can issue a Special Guardianship Order to allow a child to live long-term with someone other than their parents.

A Special Guardianship Order provides:

• A long-term care arrangement for the child.

• The Special Guardian has higher parental responsibility than the birth parents, enabling them to make day-to-day decisions independently.

• The possibility for the child to maintain links with their birth parents, if appropriate, as the birth parents retain their parental responsibility.

• Security, stability, and safety for the child.

• Eligibility for support, including financial assistance, from the Local Authority.

Who Can Apply to be a Special Guardian?

• A relative of the child (not a parent) who is aged 18 or older, and the child has lived with them for at least one year before the application.

• Someone who has the consent of all those with parental responsibility.

• A Local Authority foster carer, provided the child has lived with them for at least one year before the application.

• Someone with whom the child has lived for three of the past five years.

• A person in whose care the child is under a Local Authority, with the authority’s consent for the application.

In other cases, the Court may grant permission for an application to be made.

As an alternative to Special Guardianship, adoption may be considered, which usually results in the birth parents losing their parental responsibility and severing ties with the child.

Getting Support

If you require compassionate and expert legal support, contact our partner law firm, Slater Heelis, via their website or on 0330 111 3131.