Laws on Adoption and Parental Responsibility

March 24, 2021, By Slater Heelis

There are a number of circumstances in which adoption may be an option for people and families. From fertility options to new relationships, or perhaps looking after a young family member when they can’t live with their parents, there is a lot to consider.

In this blog, we have provided a condensed overview of the key considerations around the laws on adoption and parental responsibility. It is highly recommended that you receive specialist legal advice before entering into any of these agreements to ensure you are aware of the effect on you and others, understand your rights and the processes you would have to go through.

Adopting your partner’s child

Under current laws on adoption in the UK, those looking to adopt their partner’s child should contact their local council at least 3 months before applying to a court for an adoption order. The child must also have lived with both the parent and their partner for at least 6 months. An assessment will then be done of the couple and the child, similar to that of an adoption agency.

If the adoption order is approved, it will take away parental responsibility from the child’s other birth parent, or anyone else with parental responsibility for the child.

When the child is still in contact with their other parent

If you are married or in a civil partnership, you are able to enter a Parental Responsibility Agreement. Both of the birth parents (providing they have parental responsibility) and the step-parent must all be in agreement. If not agreed by everyone, you can apply to court for a Parental Responsibility Order.

More than two people can have Parental Responsibility for the child. This means that both parents will keep their responsibility even when a step-parent is granted it too.

With parental responsibility your role is to:

  • provide a home for the child
  • protect and maintain the child
  • discipline the child
  • choose and provide for the child’s education
  • agree to the child’s medical treatment
  • name the child and agreeing to any change of name
  • look after the child’s property

This parental responsibility automatically ends when the child turns 18.

Using a donor

If you give birth to the child, even using a donor egg, you are the legal birth parent. When using a sperm donor there are certain variables that will affect whether a non-birth parent will need to adopt the child, or if they are automatically named on the birth certificate. One key consideration is whether you conceive through a clinic licensed by the Human Fertilisation & Embryology Authority (HFEA). Let’s first explore:

Using an HFEA Licensed clinic for artificial insemination (IUI)

The birth mother is automatically a legal parent. If you are married or in a civil partnership before fertility treatment, whether that is with donated sperm or embryos, your partner will also automatically be the legal parent.

If you and your partner are not married or in a civil partnership, there are steps that can be taken to ensure you are both on the birth certificate. When using a licenced HFEA clinic, the couple can sign a parenthood election form prior to conception which will name the non-birth mother as a legal parent. Both of them will then have equal parental status when the child is born and will be automatically named on the birth certificate.

The donor has no obligation to any child born.

Using a non-HFEA licensed clinic or Home Insemination

In these circumstances, when the couple are not married or in a civil partnership, the donor is the legal father of any child born from their donation. As with any legal parent, they are financially liable, and so it is in their best interests to arrange for the second parent to adopt the child as soon as possible.

Under UK laws on adoption, an adoption order relinquishes parental responsibility of birth parents. The exception to this is when a stepparent applies for an adoption order, their partner can retain parental responsibility. The donor can therefore be relinquished of parental responsibility when the birth parent’s partner adopts the child. Once this is granted, the couple will both have full parental responsibility.

Surrogacy

Surrogacy itself is legal in the UK but is it against the law to pay somebody to be a surrogate, except for expenses.

Within a surrogacy agreement, a woman carries a child for another person or couple with the intention that the child will be handed over at birth to the commissioning person or couple, and raised as theirs.

There are some other key considerations to be mindful of when it comes to surrogacy:

  • The surrogate is the child’s legal parent at birth
  • If the surrogate is married or in a civil partnership, their spouse or civil partner will automatically be the second parent at birth, unless they do not give permission in advance
  • If the surrogate is unmarried, in most cases the intended father will be the legal father (assuming he is the biological father).
  • After the child is born, legal parenthood can be transferred to the commissioning person or couple by parental order or adoption
  • A surrogacy agreement cannot be enforced by the law, however it is helpful to have it in writing to ensure clear communication from the outset
  • If, upon birth, there is a disagreement about who should be the legal parents, the courts will make a decision based on the best interests of the child

 Adoption and parental orders after surrogacy

To apply for a parental order, either you or your partner must be genetically linked to the child through sperm or egg donation. If, however, there is no genetic link, you must go down the adoption route to become the child’s legal guardian.

More detail on the specific requirements under the laws on adoption and parental orders after surrogacy can be found here.

Special Guardianship

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

A Special Guardianship Order enables the following:

  • Long-term placement for the child
  • The Special Guardian to be granted Parental Responsibility at a higher level than the parents, to enable day to day decisions to be made solely by them
  • The child can maintain links with birth parents if appropriate, as the parents retain parental responsibility
  • Provides security, stability and safety for the child
  • Entitlement to receive support, including financial, from the Local Authority

Who can apply to be a Special Guardian?

  • Relative of the child (not a parent), aged 18+, and the child has lived with them for 1+ year before the application
  • Someone who has the consent of everyone with parental responsibility;
  • Local Authority foster carer, and the child has lived with them for 1+ year before the application
  • The child has lived with them for 3 of the past 5 years
  • A child is in local authority care and the authority has consented to the application
  • In any other circumstances, permission can be granted by the Court for an application to be made

An alternative to Special Guardianship is adoption, in which the birth parents would lose parental responsibility and usually links with the child upon the adoption order being granted.

Contact us

There are a lot of considerations, whichever route you take towards adoption or parental responsibility, as well as the circumstances in which you are looking to adopt.

If you are considering adoption please contact our expert adoption lawyers, Mark Heptinstall or Eluned Roberts, in order to discuss further how they can advise and support you in navigating the laws on adoption and parental responsibility.

Call us on 0161 969 3131 or fill in our contact form and Mark or Eluned will be in touch.