Parental orders are used where a child is born via a surrogacy arrangement in order to transfer parental rights from the birth mother to the people that are going to raise the child as the intended parents. This is a very important order since without this the intended parents will not be regarded as the child’s legal parents and so will be unable to exercise the rights of a parent in bringing up the child. To ensure the best outcome it is also best to have a specialist parental order lawyer supporting you through the process.
A parental order means that the law will treat the applicants as the parent(s) of a child that was born via a surrogacy arrangement if the following apply:
· The applicants must be over 18 years of age
· At least one of the applicants must be genetically related to the child (so either the egg or sperm donor)
· If it is a joint application then the parties must be married, in a civil partnership or living together as partners
· The child must live with the parties
· At least one of the applicants must be domiciled in the UK
The surrogate that carried the baby must not be one of the applicants.
The application for a parental order must be done within six months of the child being born.
A parental order has a similar effect to an adoption order in that it is a life-long order that legally changes the identity of the child and makes them the child of the applicant. It does not just give the applicants the ability to make decisions. The links with the birth parent are legally ended. It is a complicated area of law and it is recommended that you take advice from expert parental order lawyers.
The court will need to see proof of the genetic link with at least one of the applicants. They will also need to see the original birth certificate.
It is very important that the court receives agreement from the surrogate (and her husband or civil partner if she has one) that is free and unconditional and that the meaning of the order is understood. The consent must be given six weeks after the birth to be valid.
The court will only allow the order where they are satisfied that there has not been any payment or other benefits provided to the surrogate or her husband/civil partner other than for reasonable expenses occurred. A specialist parental order lawyer can advise you on the evidence that needs to be provided.
The welfare of the child will be the main consideration for the court. The court will therefore appoint a Parental Order Reporter from the government agency, the Children and Family Advisory and Support Service, Cafcass. They will meet with the:
· Applicants who wish to become the parents and see them with the child
· Surrogate (and her husband or civil partner if applicable)
The reporter will determine if the applicants meet the required criteria and will provide a report to the court on their recommendations in relation to the parental order.
The reporter will be looking at the whole situation, so as well as making checks with the local authority and the police they will also want to understand the surrogacy journey to this point and the family structure. The reporter will be looking at the welfare checklist and would consider issues such as:
· The child’s particular needs
· The effect that the parental order will have on the child’s life
· Their age, sex, background or other characteristics that may be relevant
· The relationship the child has with other relatives
It is understandable that this can feel overwhelming, and a parental order lawyer can explain the process so you know what to expect.
There will be an initial direction hearing where the court will need to see certain evidence. The parents will need to file a statement and evidence and the timings for the parental order report will be made here. A final hearing will be set (if there are any complications the court can set further direction hearings), which is when the decision is made on the parental order. Ensuring that you are represented by a specialist parental order lawyer will ensure that you are supported throughout this process.
If the courts make the parental order in favour of the intended parents, then they become the parents in the eyes of the law and the child can have their birth re-registered and a new birth certificate issued that lists them as the parents. The original birth certificate is not destroyed but is held sealed at the Parental Order Register. The child will be able to access this at the age of 18 years. This also applies if the child was born outside the UK.
To ensure that the process runs smoothly, it is recommended that you get advice and support from a specialist parental order lawyer that understands the parental order process. Getting the top legal advice can make a significant difference. This is particularly relevant where there is any form of international element to the case. Our expert children lawyers include specialist parental order lawyers that can guide you through the whole process and advise you to ensure the best outcome in your case.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.