Frequently Asked Questions: Children Law

Bringing a child into the UK for the purposes of adoption is a criminal offence, punishable with up to 12 month’s imprisonment and/or a fine. In order to bring a child into the UK for the purposes of adoption, there are strict regulations that need to be complied with, preferably in advance of bringing the child in. It is vital to seek legal advice prior to bringing a child who you wish to adopt into the UK.

Custody and access - more properly called “Child Arrangements” - can be emotionally fraught litigation, especially where one party is threatening the other with the prospect of denying them time with the child. The court will always look at child centric outcomes, with the welfare of the child always being paramount. The starting point will always be that the child should spend time with both parents, except in very unusual circumstances.

Even if you are not married, you are entitled to support from the other parent of your children. Under Schedule 1 of the Children Act, you can obtain both ongoing maintenance and lump sums towards the costs of bringing up children.

The level of provision will depend on your needs and your partner’s financial position. If there is money available, they can be required to meet expenses such as school fees and even provide a house for you and the children.

Specialist fertility, parenting, and family law advice can help you in a number of ways, including managing and mitigating the legal risks and issues involved, helping you to understand what would happen legally and practically if family life doesn’t go to plan, and legally restructuring arrangements for your family following relationship breakdown or a change in circumstances.

Some adoption orders are automatically recognised in England and Wales, such as those made in Scotland, Northern Ireland, the Isle of Man, Channel Islands, ‘overseas adoptions’ and adoptions under the Hague Convention 1993. Any other adoption made abroad will only be recognisable if it satisfies common law criteria. If a foreign adoption is neither automatically recognised, nor recognisable under the common law, then a domestic adoption order will need to be obtained.

Surrogacy raises complex questions about British nationality and immigration law. UK immigration law applies to those who are resident in the UK, regardless of whether they are British citizens, EEA nationals or permanently resident in the UK. There are various ways a surrogate born child can obtain British nationality and a British passport to include: by birth, by descent, registration as a British citizen, upon the grant of a parental order in certain circumstances.

Whether the child you have adopted from abroad will be recognised as legally yours in the UK depends on various factors. For example, if you adopt a child from a country that is a signatory to the Hague Convention 1993 through a Convention Adoption, then that adoption will be recognised in all 76 Hague Convention countries. An adoption that is classed as an ‘overseas’ adoption, and recognised as a full adoption in the UK may be registered in the Adopted Children Register.

Sometimes a wealthy parent can be joined to divorce proceedings, for example if they have a history of making large payments to their child, or if they are likely to be the one who meets the order.

If this happens to you, you will want to protect your wealth and minimise the amount you might have to pay to your child’s spouse. The involvement of third parties is very fact specific, but as experienced family lawyers, Vardags will help you minimise the cost of your involvement.

If your ex opposes your plan to move abroad with your children, there are numerous strategies that can be deployed to overcome their opposition.

While the court will be unable to stop you from relocating, it’s primary concern will be whether it is in your children’s best interests to do so, and whether there is an appropriate strategy in place for the children to maintain regular contact with the other parent.

If you are named as the person that a child lives with under a child arrangements order you may take your children on holiday abroad for up to 28 days without requiring permission from your ex. However, if there is no order in place or you wish to take your child out of the country for longer, you will require their written consent.

There is no international harmonisation of law, policy and practice. Some countries will not provide fertility treatment or surrogacy to same-sex couples and single women. Some countries do not allow fertility treatment with donor eggs or sperm. Furthermore, law and policy on surrogacy differs widely, with some jurisdictions prohibiting it whilst others enable it on a commercial or altruistic basis.

If you have an international lifestyle, being able to move around freely with your adopted child will be a high priority. Whether you have legal parental status internationally will depend on whether the adoption order you hold is recognisable in the countries you will reside in.

With our international expertise we can offer you specialist legal advice as to the potential issues you may face in different jurisdictions, and how to overcome them. As many of our clients have international lifestyles, we experienced at dealing with the legal complexities arising from the application of UK law internationally.

There are no international agreements governing surrogacy arrangements. This creates international conflicts of law and a legal patchwork effect around the world which can be compounded when intended parents and families formed through surrogacy have an international lifestyle or multi-jurisdictional aspects to their personal and/or professional situations.

English law applies its own law on surrogacy and does not automatically recognize foreign parentage orders or foreign birth certificates naming intended parents as the parents of their surrogate born children. This can make a surrogate born child ‘stateless and parentless’ without recognised legal parents and status in a country.

When you begin divorce proceedings, it is natural to worry about how your spouse might react. From the outset of proceedings, they are under a duty to maintain the status quo – including giving you the same access to money to meet your day-to-day expenses.

It is not uncommon for spouses to want to relocate when the marriage is ending. As a newly-single parent you may need to move closer to your work or nearer to the support of your family.

If you want to move your children abroad, and the other parent does not agree, you will need the permission of the court, so called “leave to remove”.

A child adopted from a country that is signatory to the Hague Convention 1993 through what is known as a ‘Convention Adoption’ will automatically acquire British nationality. However, a child adopted via adoption that is classed as ‘overseas’ will not. In the latter scenario, you will need to have a clear immigration plan in place. Conversely, a foreign child adopted in the UK through the domestic adoption process will acquire British nationality as part of that process.

It is remarkable how often we are approached by clients who are unhappy with their current solicitors or would like a second opinion. Often they have initially selected local solicitors without the requisite experience of complex cases, have a personality clash with their solicitor, or have been palmed off on junior staff without justification.

We can give a second opinion without your current solicitors finding out. If you ultimately like what you hear and would like to switch, we can handle the whole process for you and you don’t even need to speak with your current solicitors.

When your relationship is in its early stages with a new partner, it can raise complex issues about legal status, day-to-day arrangements, and care of your existing or future born child. It is important to consider a number of questions with regard to legal parental autonomy, legal parenthood and parental responsibility, as well as financial and emotional issues. In addition, you should undertake a legal risk analysis as well as other proactive steps to ensure a strong legal basis for the future.

Your divorce is likely to impact upon your finances for the rest of your life. It is vital that you have a legal team who can trust to deal with your case effectively. If you are unhappy with your legal team, it is very easy to change to new solicitors, only requiring you to lodge a Notice of Change with the court.

Whilst there are perfectly innocent reasons why your ex might not yet have returned with your children from Britain, it could also be a real cause for concern. In the first instance, it will be necessary to contact your ex, the hotel or the last place they were known to be and any family or friends who might know of their whereabouts.

If your partner is breaking an existing order, there are numerous ways of enforcing it. The court can divert a portion of their salary directly to you (garnishee order), give you a charge over property or shares or even transfer bank accounts over to you. If your partner willfully and deliberately refuses to satisfy an order, this can amount to contempt – the court can fine and even jail them for this.

If you fear violence or are subject to harassment the court can and will protect you, even after your divorce. For victims of domestic abuse (be it physical, verbal or emotional harm) the court can make non-molestation orders and occupation orders each giving you comprehensive legal protection.

Non-molestation orders (“non-mols”) are designed to protect your from harassment. Normally, they will prevent your ex-partner from harassing you and threatening you with violence. Sometimes they will bar them from contacting you directly and from going near you.

If you fear violence or are subject to violence or abuse, the court can and will protect you. For victims of domestic abuse (be it physical, verbal, or emotional harm) the court can make two types of order – “non-molestation” orders and “occupation” orders each giving you comprehensive legal protection. Non-molestation orders are supported by criminal sanctions. Breaking one is a criminal offence, and your partner can be arrested immediately if they breach the terms, even if they have committed no other crime. These orders are available whether you have been married to your ex-partner or not.

If you have moved abroad with your children without your ex’s consent, you could be at risk of being accused of child abduction, which is both a criminal and civil offence. There are serious criminal proceedings that could involve you being extradited to be brought before the criminal court of England and Wales.

However, the seriousness of these consequences can be mitigated if you take swift action to contact your ex and resolve the situation. Whatever your reasons for taking your child abroad, the faster you act the less likely the situation will result in onerous orders against you.

If your children live with your ex under a child arrangements order, then your ex may take your children out of England and Wales for up to 28 days without your consent. Where there is no child arrangements order in force, or where your ex wishes to take your child on holiday for longer than a month, they will require your written consent or they will have to obtain permission from the court.

Often couples try to make child arrangements work between themselves, without recourse to the courts. Sadly, this does not always happen successfully, with the resident parent preventing the children from seeing their other parent or limiting contact. If this has happened to you, Vardags can help.

As experienced family lawyers, Vardags can help you establish a regular system of contact with your children either through negotiating with your ex-partner or by applying to the court.

If you spouse’s income has increased significantly and you receive ongoing maintenance, you can argue that the amount paid to you could also go up.

This will often be informed by what your income needs are, but the court may even order a surplus above what you need. If your ex has increased their capital wealth substantially, it may be possible to capitalise these payments ending your monthly reliance on your spouse.

The Human Fertilisation and Embryology Authority (HFEA) issues guidance to UK fertility clinics which requires them to ensure you understand the issues and give informed consent to fertility treatment. In order to comply with their licence requirements, UK fertility clinics can therefore require you to obtain specialist fertility, donor conception, surrogacy and family law advice to understand the complex legal issues, implications, and outcomes before offering treatment.

In line with this, Vardags can provide sensitive, experienced, and tailored legal advice on family building law advice for fertility patients in the UK internationally (including family building options, fertility preservation, IVF law, donor conception law, and surrogacy law), and fertility treatment law in the UK (including informed consent to treatment).

Schedule 1 of the Children’s Act allows for a parent to seek financial support for their children from the “non-resident” parent. This includes regular payments of child maintenance but can also extend to providing a house for the child and paying other expenses such as school fees.

When a relationship with a parent falls into difficulties or dispute it can create complex legal issues about current and future arrangements for a child, particularly following assisted conception, donor conception, and surrogacy. This can include problems surrounding a child’s legal identity, legal status of the parents and child, acquisition and exercise of parental responsibility for the child, financial provision for the child, and arrangements for the day-to-day care of the child.

We can provide sensitive and specialist legal advice on resolving a family and fertility law issue or dispute with a parent, and arrangements for the care and upbringing of a child including child arrangements order, specific issue order, prohibited steps order, special guardianship, wardship, and adoption.

Relationships between adoptive parents and birth parents can vary. It is important to appreciate what each party is looking for in that relationship: whether it ends when the adoption is finalised, whether it continues through the child’s life, or perhaps neither party wishes for a relationship at all.

Should the relationship become difficult it may be worth considering setting out in writing the expectations of each party. This will help to establish how matters are to progress and reminds each party of their reasons for entering into the adoption.

In the event that the relationship deteriorates significantly, it is essential to seek the assistance of a third party.

If you are currently making child support payments, this obligation will continue even after your ex moves abroad with your children. Child support will continue to be enforceable in the courts of England and Wales and in over 100 countries with reciprocal arrangements.

Surrogacy is a legal but restricted practice in the UK. Surrogacy contracts are not legally enforceable in the UK and arrangements are based on trust and goodwill. Some foreign countries ban surrogacy and others permit it on a commercial basis with legally enforceable surrogacy contracts. The legal issues and process differ depending upon whether you enter into an altruistic UK surrogacy or a commercial surrogacy overseas.

We can discuss options with you and provide sensitive, experienced and bespoke legal advice and assistance on family building law advice for those considering or embarking upon a surrogacy arrangement with assisted conception in the UK or abroad. We can also advise on how to navigate a safe path home after the bird of a surrogate child overseas, how to apply for a parental order for a surrogacy born child, and what to do in the absence of a parental order.

In the event that you and your partner are in the process of adopting a child from overseas, but you are concerned about your relationship and the effect of any possible separation on that adoption, it is important to be aware of your options.

Where an adoption has not yet been finalised, a divorce by the prospective adoptive parents may affect the finalisation of the adoption. If the birth parents’ rights have not yet been terminated, there is a risk that they might object to their child being adopted by a single parent, or by a couple in dispute. If their parental rights have been terminated, it is the court who will consider the impact of a divorce on the adoption, and who will have final approval.

There are a number of ways to donate eggs including: to a donor egg bank, to a female relative, friend, contact or as a straight surrogate (who donates her own egg as well as carries the pregnancy). We know that, as an egg donor, you are entering into an intricate and emotional situation. In a number of cases there are added layers of complexity, for example, where you are a known donor, engaging in an egg-swapping arrangement as a same-sex couple, or where there is an inter-family donation.

The law surrounding sperm donation is complex in the UK and can apply differently depending on a number of different factors, such as whether the woman who is conceiving is single, married, or in a civil partnership at the point of conception, whether conception takes place artificially or via sexual intercourse, whether conception takes place at a UK clinic or by private arrangement, who is named on the child’s birth certificate, and whether as a donor you will have an established relationship with the child.

Conception with donor eggs creates a range of medical, legal, emotional, financial and practical issues which require careful consideration. Specialist legal advice is an important safeguard in the fertility treatment and family building process. We can provide bespoke and comprehensive legal advice on all egg donation law, in the UK and internationally, including where your personal circumstances are complicated (including egg swapping as a same-sex couple, relationship difficulties or breakdown, change of circumstances and international aspects). We can also prepare a ‘family proof’ will following egg donation.

Donor sperm can be used to conceive in various ways, including at a UK fertility clinic, by private arrangement or at a fertility clinic overseas.

The law is complex and can apply differently depending upon your relationship status (whether you are single, married or in a civil partnership at the point of conception), how you conceive (artificial inception or sexual intercourse), where you conceive (at a clinic or at home), and who is named on the child’s birth certificate.

The donation of eggs or sperm by a family member is known as inter-family donation. It provides a genetic link between the recipient and the child (unlike conception with arms-length donated eggs or sperm), which can be an important driving factor in some cases.

To prevent consanguinity (incest), there are legal restrictions as to the mixing of eggs and sperm between close relatives. However, inter-family donation is permissible in some cases at UK fertility clinics.

The decision to embark upon treatment at a fertility clinic is not risk free. Although many experiences lead to positive outcomes, fertility treatment can create complex legal and medical issues, such as: problems with consent forms (incorrectly completed, lost or mislaid) which govern the procurement, storage, and use of eggs, sperm and embryos; loss, destruction, or wrongful use of eggs, sperm, or embryos; problems with fertility treatment, tests, and medication; refusal, restrictions, or delay in providing treatment.

Vardags can provide you with experienced and specialist legal advice on resolving a fertility law dispute with a clinic, expert witness services for fertility, parenting, and surrogacy law following clinical negligence, and fertility treatment law in the UK.

If circumstances change during a surrogate pregnancy, it is important to proactively manage the legal and practical issues as soon as they come about. Circumstances can change at any time for a variety of reasons, such as relationship breakdown between intended parents, change of heart by a surrogate, communication problems and expectation differences between the parties, illness or medical complications, professional or financial difficulties.

We understand how difficult this can be, and acknowledge the need to act quickly and carefully. We can provide specialist tailored legal advice on surrogacy law in the UK and internationally, family law advice for modern families created through surrogacy and assisted conception following relationship breakdown (including divorce and financial proceedings, cohabitation law, and civil partnership dissolution), and preparation of a ‘family proof’ Will.

When surrogacy arrangements fall into dispute it can be immensely distressing. We can secure and protect legal status for a surrogate born child through legal proceedings including assisting you with obtaining court orders such as parental orders, child arrangements orders, wardship, conferral and restriction of parental responsibility, specific issue, prohibited steps, special guardianship, adoption, and financial provision orders.

Vardags can provide you with sensitive, experienced legal advice on managing and resolving legal issues or a dispute with a surrogate, legal parenthood, and acquisition and exercise of parental responsibility for a child conceived through surrogacy.

When difficulties or disputes arise between an egg or sperm donor and the recipient, it can create a range of legal, medical, and emotional issues. This might lead to you wanting to withdraw consent to their use of eggs, sperm or embryos. A dispute could also develop during treatment, pregnancy or after the birth of the child, and could lead to contested court proceedings over the care and upbringing of them.

Our number is 020 3967 8661. However, if you are concerned about privacy please do flag when you reach out to us and we will ring from a withheld number to ensure complete discretion.

Posthumous conception is legal in the UK, but it is highly complex and needs to be dealt with carefully. There are stringent legal requirements governing the procurement, storage and use of eggs, sperm and embryos following death, especially with regards to consent.

English law expects you to have secured written, signed consent for the storage and use of eggs, sperm, and embryos after death. Ideally, you should proactively complete a series of consent forms that are available at all UK fertility clinics because consent cannot usually be obtained retrospectively after death.

Adopting a child gives the adoptive parents the full rights and responsibilities of a birth parent. As such, in the event of a divorce, proceedings in relation to the child will be the same as those concerning care arrangements for biological children.
As adoptive parents, you will need to agree with whom the child shall live and contact arrangements. All decisions regarding the child’s health, education and welfare will need to be made jointly.

The objective of our consultation is for you to understand the likely outcome of the case, meet the people who will be working on it day to day, understand the process, and have any questions answered.

The law applies differently depending upon whether you conceive naturally or by assisted conception. Every person’s situation is different and requires tailored legal advice on the legal issues, implications and outcome in their case.

Legal and practical issues can arise at any point for families created through assisted conception, whether this be at the point of conception, at the point of birth, when crossing international boundaries, upon relationship breakdown, upon death, or as a result of changes in law and policy.

For aspiring families this can be immensely daunting, which is why we offer family building law advice sessions for those at the beginning of their journey. Vardags provide specialist legal advice on the full range of options available to you, such as fertility preservation law, IVF law, donor conception law, surrogacy law and co-parenting law.

Conception with a known donor can provide a more personal dimension to your family building arrangement, however, it can also create risks in practice because the parties are known to each other. Changes of heart, disagreements and changes of circumstances can have an impact on your overall legal position, particularly after the birth if the donor has established a relationship with the child.

To protect yourself against these risks, you should seriously consider entering into a carefully written known donor agreement. If you do, the English Family Court can take this into account if a dispute arises. Whilst the court’s paramount consideration is the welfare of the child, your known donor agreement can be important evidence, clearly illustrating what was intended, understood, and agreed between you and your donor.

Co-parenting is generally understood as a parenting arrangement in which the parents are not romantically involved. As a child can only have up to two legal parents in English law, this can create issues around who will obtain legal parenthood in multi-adult cases and who will be named on the child’s birth certificate. Legal problems can also occur around the acquisition and exercise of parental responsibility for the child, which governs decisions for the day-to-day welfare and upbringing of the child.

A written co-parenting agreement, tailored to your situation, is an important tool if you are entering a co-parenting arrangement. It will establish the ground rules for helping manage the complex legal aspects in practice, as well as the expectations involved. Whilst the court’s paramount consideration is the welfare of the child, a co-parenting agreement can be of important evidential benefit of what was intended, understood and agreed between the parties.

If you conceive with a sperm donor by private arrangement outside of a UK fertility clinic, the donor could be considered the legal parent of the child with all the rights and responsibilities that flow from this. Complex legal issues also arise if you conceive privately through a straight surrogacy arrangement (where the surrogate conceives with her own egg). The law can apply differently depending on your relationship status (whether you are single, married, or in a civil partnership at the point of conception), how you conceive (artificial conception or sexual intercourse), who is named on the child’s birth certificate, and whether the donor will have/has an established relationship with the child. Given all of these variables it is important to obtain specialist legal advice.