Tag: family law

Laws on Adoption and Parental Responsibility

March 24, 2021, By Slater Heelis
uk adoption laws same sex couple and child

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.

Can I claim my solicitor’s costs in divorce?

December 2, 2020, By Slater Heelis
claim-solicitors-divorce-costs

Divorce can be a fairly straightforward process if both parties accept that their marriage has come to an end and they wish to formalise their separation. In this blog we explore whether you can claim divorce costs, or get help with them.

Fault Based Petition

Under the present law, a “fault-based” divorce is one which cites either unreasonable behaviour or adultery as the reason for the breakdown of the marriage (as opposed to a period of separation, for example).  With a fault-based petition comes the ability for the petitioner to seek some or all of their costs from the other party. This may include the court fee (presently £550) as well as a solicitor’s costs for preparing the paperwork (which are usually fixed at a set amount).

However, in many of the cases we deal with, the separating couple is able to work collaboratively to agree the wording in the petition and how the costs are to be dealt with.

Where you have a situation which is far from amicable, the petitioner may seek all of their divorce costs. Unless an agreement is reached at a later date, it is likely that the court will order the respondent to reimburse the petitioner’s costs.  These costs relate solely to the divorce and do not include the costs of addressing any associated financial issues (for which each party is usually responsible for their own solicitor’s costs).

Help with divorce costs

If you are the petitioner and are struggling to pay the fee for your divorce, there is help available. See further guidance on help with court fees on the government website.

No Fault Divorce

It is anticipated that by autumn 2021 the new “no fault” divorce system will have been implemented which is likely to remove the ability for the court to apportion blame through the use of costs orders. This is to be welcomed.

How we can help

If you are filing for a divorce or you are in receipt of divorce papers and would like further advice, our expert team are here to help.

Please call us on 0161 969 3131, or fill in our contact form and we will be in touch.

Government Aim to Make Weddings More Accessible

July 4, 2019, By
government make weddings more accessible

As we enter a more modern world, we are seeing many more outdated legislations being completely disregarded. One area which is subject to current focus by the government is the change to marriage requirements.

UK Prime Minister Theresa May and Lord Chancellor David Gauke have worked hard as part of a two year effort to urge the Law Commission to review the laws governing where and how weddings take place with a view to creating  more freedom.

The initiative that was announced on Saturday 29th June could potentially mean that civil ceremonies can take place at sea, in private homes or even at military bases for those who are on duty and are unable to get married elsewhere.

When asked about the government’s motivations behind the potential change, David Gauke stated; “people from all walks of life should be able to express their vows in a way that is meaningful to them.”

Although there is now a big push towards more marriages in the UK, sadly there is also a longer than ever waiting list for those who are getting divorced. In this respect, the proposed bill aimed at reforming divorce law in England and Wales by allowing couples to part without finding fault, recently received its second reading in parliament.

Separated Parents and Holidays Abroad

June 20, 2019, By
single parent holiday

What is the issue?

If you take your child (under 16) out of the country without the permission of the other parent, then you are at risk of committing an offence under the Child Abduction Act 1984. This includes taking your child on a holiday abroad. Where your child is going on a school trip abroad then it is also necessary that you and your child’s other parent both provide your consent.

If you are named as the parent that your child lives with in a child arrangements order made by the Family Court, then you are allowed to take your child out of the country for a period of less than one month. However, in any other circumstances, it is vital to obtain the written consent of the other parent.

 

What if the other parent won’t consent?

The other parent should not unreasonably refuse consent, however in the event that the other parent won’t consent to you taking your child on a holiday abroad, the most appropriate course of action will almost always be an application to the Family Court. This is because of the seriousness in law of taking children out of the country without the appropriate consent.

Applications to the Family Court in these situations should be made for a specific issue order, and the key factor will be what is in your child’s best interests.

Protecting the Bank of Mum & Dad – Protecting Money With Pre & Post Nuptial Agreements

June 12, 2019, By
protecting bank of mum and dad

If you are considering gifting or loaning money to your married son or daughter on an informal basis, then you should be aware of the real risk that their spouse or civil partner may receive all (or a substantial amount) of that money in the event of a breakdown in the relationship.

This is because in financial proceedings following divorce, the Family Court will generally view such monies as forming part of the assets that can be distributed, and informal loans will likely be dismissed as being ‘soft loans’ and not repayable. In order to minimise the risk of these situations arising, it is vital that:

  • Where you are gifting the money, that the gift is suitably ring-fenced within the terms of a pre-nuptial or post-nuptial agreement
  • Where the money is a loan, that this is documented in a formal loan agreement and ideally a legal charge (mortgage) for security on any property owned.

Following substantial changes to this area of family law in the past decade, pre-nuptial and post-nuptial agreements (provided they are properly drafted and freely entered into, with full financial disclosure) will, generally speaking, be given effect by the Family Court as part of the discretionary exercise it undertakes, provided there are no circumstances which would mean that it would not be fair to hold the parties to the agreement. For the avoidance of doubt, such agreements cannot exclude the Family Court’s jurisdiction.

Please note that there may be tax implications in relation to any gift or loan. If you are considering making a gift or loan to your son or daughter, you should always seek specialist legal and tax advice in respect of your options.