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The Rights of Same- Sex Partners in Alternative Families: Equality at Last?

Posted on February 15, 2017

In recent years, the rights of LGBT couples with regard to parenting has drastically improved, signalling a major step towards equality, with the general law relating to child arrangements being followed, regardless of the gender of the parents. It is therefore now a better time than ever for couples looking to start a so- called ‘Alternative Family’, and the diversity of family life is broader than ever before, as indicated by the statistics below:

  • Between the 1st of April 2015, and 31st March 2016, there were 450 adoptions by same- sex couples in the UK
  • Total number of same- sex couple adoptions in the UK now 2317
  • 69,000 same-sex couples living together in the UK in 2013
  • The number of lesbian parenting couples rose by with this number rising by more than a third in 2012
  • 766 cycles of IVF in 2012 were conducted for women in same- sex relationships in 2012 (up 36% from 2011)
  • Number of couples undergoing artificial insemination to conceive up by 20% in 2012
  • Government invested £17 million in 2015 into UK adoption agencies, with one of the aims being to increase the number LGBT couples adopting.

What is “Parental Responsibility”?

Crucially, there are now several ways for a same- sex partner to obtain “Parental Responsibility”. This is often what is sought by the same – sex partner, and has, in the past been hard to achieve. This is the legal status to allow an individual to make important decisions regarding the upbringing of a child. The only way this Parental Responsibility can be lost is if the child is adopted.

The rights of the Partner to obtain Parental Responsibility at the birth of the child in a Lesbian couple:

The biological mother automatically obtains Parental Responsibility for their child on birth, but sometimes it can be harder for their same – sex partner to obtain this.

The approach taken by the courts to cases of lesbian parenting couples took a major step forwards in 2008, with an Act now stating that the spouse or civil partner of a woman who gives birth to a child after the 6th of April 2009, will automatically be recognised as the child’s second parent, so long as she consented to the child’s conception. In addition to this, if the lesbian couple are not married or civil partners, this provision will still apply so long as the mother’s partner has given her written consent to the fertility treatment, and that this treatment is occurring at a licensed fertility clinic.

It should also be noted that this would mean the donor has no legal rights over the child. Additionally, if the donor is known and conceived whilst in a civil partnership outside of a licensed fertility clinic, the father will also have no rights, and both partners in the same- sex couple will have Parental Responsibility.
This has no doubt played a part in ever increasing numbers of lesbian couples starting a family, helped further by the introduction of new guidelines in 2012, which mean that same- sex couples may now receive IVF treatment on the NHS.

The rights of a partner in a same- sex couple to obtain Parental Responsibility after the birth:

One way of gaining Parental Responsibility after the child has been born, is by the partner entering into an agreement (Parental Responsibility Agreement) with the biological mother and father, or by applying to the court for a Parental Responsibility Order (notice must be given to the biological father confirming that such an application is being made).

Another method is by applying for a shared residence order, which would grant Parental Responsibility to the partner until the child’s 16th or 18th birthday. To be able to apply for this, you must have been living with your partner’s child for a period of 3 years within the last 5 years. If this is not satisfied, you must have permission from everyone who already has Parental Responsibility (possibly including the father). If this is not possible, then an application to the court must be made, who will consider the relationship shared by the partner with the child. The courts have looked increasingly willing to grant these orders in recent years, being viewed as a way of giving parental rights to same- sex couples.

Other means of gaining Parental Responsibility for same- sex couples are by adoption, although if the child has a known biological parent with Parental Responsibility, they will be involved in the proceedings and the court will have to decide whether adoption is in the best interests of the child. Fostering a child may also be a viable option.

Are the rights affected if the couple separates?

If both partners share Parental Responsibility or adopted the child together, then they would retain rights over the child and could therefore apply for contact and residence orders. If the child is adopted, both partners remain the child’s legal parents even following separation, and therefore neither of you will lose your Parental Responsibility. If the partner had a shared residence order over the child, following a separation, one of the partners may apply to the court to have this order removed, and therefore the partner would lose their Parental Responsibility. They would still be able to apply to the court for a contact order though, therefore still having a role in the child’s life.

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