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Same-sex parents and parental responsibility - getting advice early

View profile for Polly Faithfull
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When same-sex couples become parents, they are faced with a number of important issues which makes taking proper legal advice essential to avoid issues arising in the event that they unfortunately separate. This was highlighted in the recent judgment of FC v MC and DC (A Minor) [2021] EWHC 154 (Fam).

The parties were in a female same-sex relationship from 2010 to 2018. They did not enter a civil partnership and did not marry. After many years of discussion, they eventually decided to start a family. They explored the option of using a fertility clinic but concluded that the costs were too prohibitive. Fortunately, a willing friend donated his sperm which was artificially inseminated at home.  The parties agreed that the respondent would be the birth mother, as she maintained that this was crucial to allow her to bond with the child. It was therefore the respondent’s egg that was fertilised.

The parties’ child was born in January 2016. The respondent’s name was entered as the child’s mother on the birth certificate. As a birth mother, the respondent was also the legal mother and therefore automatically had parental responsibility. The applicant’s name, however, could not be entered on the birth certificate as the parties did not undergo the artificial insemination at a Human Fertilisation & Embryology Authority (HEFA) registered clinic. Had the insemination taken place at a registered clinic and the parties had been either (1) civil partnered or married, or (2) not civil partnered or married but they had completed the correct forms and both parties provided written notice to the clinic consenting to parentage before the treatment, then the applicant would have been legally recognised as the child’s second parent. Unfortunately, they did not choose to use such a clinic, and so the applicant had no legal status in relation to the child and as such, did not have parental responsibility for him. The parties were aware of this and discussed the need to formalise the applicant’s legal status and parental responsibility, but with the excitement surrounding the arrival of their new-born, these steps were never taken.

During the course of the parties’ relationship the applicant played an active parental role. She changed her surname to match the respondent’s and child’s surname. When he was 3 months old, she gave up her job to care for him whilst the respondent continued with her studies. She took responsibility for day-to-day care, including taking him to nursery and doctors’ appointments. He referred to the respondent as ‘mummy’, and he initially referred to the applicant as ‘mummy XX’ and ‘mummyona’, which eventually became ‘Ona’.

Unfortunately, the parties’ relationship broke down and they separated in August 2018. Initially, the applicant had regular contact with the child, but in June 2019, after an argument between the parties, contact stopped entirely for 9 months. The applicant issued Children Act proceedings on 2 August 2019, seeking contact and parental responsibility. The applicant did not fall within the definition set out at section 12(1) or (1A) of the Children Act 1989. As she was not legally defined as a parent, she therefore did not have an automatic right to apply to the court for the orders. Instead, she relied on section 12(2) and (2A), for applicants who are not a parent or guardian of the child. She sought a ‘shared care, lives with’ order, which, if granted, would confer upon her parental responsibility, for as long as the order subsists. The respondent opposed the application.

During the proceedings, the applicant’s contact with the child resumed; initially it was supervised but it soon progressed to unsupervised, including one overnight stay every 2 weeks. Both the parties and Cafcass agreed the contact was positive and that the child had a close relationship with both of his mothers.

The case was heard by Mrs Justice Leiven at the High Court. Following the judgement in Re H (Minors) (Local Authority: Parental Rights (No 3) [1991] Fam 151, it was determined that the court must consider three factors to grant a father parental responsibility; the father’s commitment, attachment, and the motivation for his application. Mrs Justice Leiven said the same applies to a female second parent.

In terms of commitment, Mrs Justice Leiven said it must be ongoing. The applicant must be committed at the time of the application and not only at the time of the child’s birth. She said it was clear that the applicant was committed to the child in this case. It was not a plausible defence for the respondent to say that the applicant had played a lesser role of late, as she had not been given the opportunity as a result of their relationship breaking down. She found that the applicant was committed in both a practical and emotional sense. The attachment was ‘plainly close’ to see. Neither was it disputed by the respondent. The applicant’s intention to want parental responsibility was honest and she did not intend to undermine the respondent’s role in the child’s life, which was what the respondent feared.

On top of this, the court must consider the child’s welfare. The applicant’s strongest argument was that it was the intention of both parties to share motherhood. The respondent only changed her mind when the parties separated. Mrs Justice Leiven said it was evident that the respondent was still hurt and hostile towards the applicant. She found that the applicant had made a lifelong commitment to this child. Mrs Justice Leiven therefore ordered a ‘shared care, lives with’ order granting the applicant parental responsibility.

This judgment evidences the need for same-sex parents to carefully consider the legal implications of creating families using assisted reproductive techniques and importantly to take specialist fertility law advice before embarking on any assisted conception. This is particularly important for the couples who may be considering the non-fertility clinic route, as this case shows. Perhaps if the parties had understood the implications of the applicant’s lack of legal status, they would have made different decisions prior to conception to solidify her legal status from the outset so as to prevent the stress and uncertainty of court litigation upon a relationship breakdown.

Whilst the judgment makes no mention of the sperm donor’s position in this case, again, as the conception took place outside of a HFEA registered clinic, that donor is not protected from legal responsibility for the child as he would have been had he donated sperm through a HFEA licensed clinic. As such, in this case he is the biological and legal father (even though his name is not on the birth certificate) and it would be possible, therefore, for the mother to claim child maintenance from him should she choose to do so. Similarly, if that donor had become attached to the child that resulted from his sperm donation, he would have the right to make applications under the Children Act, something which the female same-sex couple may not want. Another reason to take early legal advice in relation to the legal status of all parties involved.

If you need any advice about any of the issues raised here, our specialist family lawyers can assist. We can be reached on or on 0203 824 9550.