Reviews of children’s social care and surrogacy laws proposed by Law Commission

The Law Commission has identified the practice areas of English law that their “experience and discussion with stakeholders suggest may require reform”. In addition to publishing their proposal, the Commission is inviting members of the public to contribute their opinions regarding the findings -specifically, what they think should be included in their 13th Programme of Law Reform.

In terms of family law, the Law Commission have proposed investigation into whether the law governing social care for children in England need to be reviewed. The proposal states that a useful review could cover the following aspects of child social care:

• The definition of a disabled child, which may now be discriminatory and out-of-kilter with modern approaches to disability:
• The continuing existence of section 2 of the Chronically Sick and Disabled Children Act 1970 which operates as “rump” legislation and gives parallel rights to services for disabled children;
• The need for clear principles defining how social workers should approach Part 3 cases and the range of factors that should be considered in the “best interests” of the child;
• The operation of the general duty on local authorities to provide services for the care of children and families under section 17 of the Children Act 1989, including the need for statutory eligibility criteria for section 17 services, bringing children’s services into line with the Care Act, and the lack of an explicit statutory duty to assess for section 17 services;
• Clarifying the relationship between the provision of accommodation under sections 17 and 20; and
• Reviewing the provision of accommodation for children in police protection or detention under section 21 of the Children Act 1989.

The Law Commission has also addressed concerns as to whether surrogacy laws are “in pace with social change”. A review of such laws is encouraged by Jane Ellison MP, Under Secretary of State for Health. In a 2014 parliamentary debate, Ms Ellison stated that there was “scope for improving information to those considering surrogacy to clarify the position and to ensure that the child’s welfare is safeguarded”, and thus “there is a case for…opening up a wider dialogue”.

The aspects of surrogacy law that may be considered for review are outlined by the Law Commission as follows:

• Surrogacy and the single parent: There is no power for the court to make a parental order in favour of a single person (as opposed to a couple), which recently led to a High Court declaration of incompatibility with the Human Rights Act 1998 in the case of Re Z (A Child) (No 2) EWHC 1191 (Fam).
• Parental orders:
• There is potential uncertainty caused by surrogates (and sometimes their husbands) being entered as parent(s) on the birth certificate of a child born as the result of a surrogacy arrangement. Currently, parental orders can only be obtained after the birth of the child and upon an application to court by the intended parents. In one case, the effect of the law “was that the children were marooned stateless and parentless”;
• We have been told that the conditions for making a parental order are unnecessarily restrictive.
• The regulation of surrogacy: A project could consider the current regulation of each aspect of surrogacy arrangements, as well as the application of the welfare (of the child) principle in surrogacy arrangements.

If you would like to contribute to the dialogue regarding potential law reform, details for submitting your comments can be found here.