Prior to implementation of the 2018 order, the law only provided for couples in ‘enduring relationships’ to be able to apply for parental orders, leaving single parents being unable to apply. The change came about after Sir James Munby, former president of the High Court Family Division, said surrogacy laws which prevented single parents from applying for parental orders were “incompatible with a person’s right to a family life under the Human Rights Act 1988”. The case which went before Sir James Munby not only raised the issue of incompatibility with Human Rights legislation, but also the question of discrimination on the basis that single parents are able to have children and be their legal parent through adoption, IVF or donor conception, but not through surrogacy where there was no order enabling single parents to apply.
What’s the process for applying for a parental order?
There are strict time limits.
The application has to be made within six months of the child’s birth.
In cases where single applicants already have a child through surrogacy, the application needs to be made by early July 2019; and
- The surrogate mother must give consent to the parental order being made and understand they will lose their parental rights.
- No payment should have been made save for ‘necessary reasonable expenses’.
- There must be a genetic connection between the child and at least one of the applicants.
- At the time both the application and order is made, the child’s home must be with the parents.
- Either or both applicants need to be domiciled in the UK.
Upon the parental order being made, the surrogate’s parental responsibility (legal rights) for the child is extinguished, with the applicants having full parental rights for the child under English law.
How long does a parental order last for?
The order will last for the child’s lifetime.
As in the approach taken by the courts in applications for child arrangement orders under the Children Act 1989, whether a parental order is made will be dependent upon whether it is in a child’s best interests.
Can applications for parental orders be made after the six months time limit i.e. after July 2019?
The answer is yes, but the application may be more complex so it is important that applications are made now so the process can be more straightforward. It’s important that early advice is taken.
For further information and advice, contact one of our experienced family team.
Nicola Cancellara January 2019