Same-Sex Female Parents and Parental Responsibility

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Family/Divorce Article

02 March, 2021

Parental responsibility encompasses "all rights and duties, powers and responsibilities, which by law a parent of a child has in relation to that child". This gives a parent the right to make decisions on behalf of that child such as their education, religion and upbringing. Mothers who give birth to the child, automatically have parental responsibility, fathers and second-female parents do not.

This article is going to focus on same-sex parents - specifically how second-female parents can acquire parental responsibility for their child.

Where a child is born following fertility treatment, on or after 6 April 2009, they may have two female parents. The woman who gives birth to the child, has parental responsibility just as any other mother would. The second female parent is treated very much in the same way as a biological father. She will have parental responsibility, if she is the spouse or civil partner of the mother at the time of treatment and birth of the child. The second female parent must have also consented to the fertility treatment.

If the parties are not married at the time of conception and birth, the second female parent is able to apply for parental responsibility after the birth of the child. To apply for parental responsibility, both women must have consented in writing at the time of treatment, to the other female being the child's second parent.

If at any time after the birth, the parties become spouses or civil partners, the second female parent would automatically acquire parental responsibility for their child.

Should the parties separate after the birth of their child, and there is a dispute regarding the arrangements of who the child should live with or how often they should spend time with their other parent, the second female parent will have to evidence that she has parental responsibility. If the second female parent does not have parental responsibility, she will first need permission from the court to make the application.

Now, if this was an issue being faced by a biological father, who is not married to the mother, it is quite easy to evidence that he has parental responsibility - he can simply provide the results of a DNA test to the court (if the mother is disputing paternity). For same-sex parents who are not spouses or civil partners and who have not acquired parental responsibility following the birth of the child, this can be difficult, but not impossible.

In a recent case, a second female parent applied to court for parental responsibility for her son, after the break down of her relationship with her son's biological mother. The parties were not married or civil partners. The parties had also not applied for parental responsibility for the second female parent. In addition to parental responsibility, the second female parent was also seeking a Child Arrangements Order to spend time with their son.

In the judgment of the court, it was noted that it was clear upon the evidence before them, that it was always intended that the applicant (the second female parent), would be considered as the child's parent. She had "made a lifelong commitment to [the child] from the time of his birth and had continued with that commitment". It was clear to the court that both parties loved their son very much and wanted what they thought was the best for him. The respondent (the biological mother) raised concerns that the applicant would attempt to control her life if she was granted parental responsibility, but the court found nothing that suggested that this would be the case. The respondent accepted that the child had a very close and loving bond with the applicant but did not agree that it was in the child's best interest for the applicant to be granted parental responsibility.

Despite the respondent's concerns, the court allowed the application. The court was satisfied that it was in the best interest of their child that the applicant was granted parental responsibility, and that contact between them was reinstated immediately. The court also made a shared care arrangement, allowing for the child to spend equal time with both parents.

This was (obviously) a very positive outcome for the applicant, who only wanted to be recognised as her son's mother. This could, however, have been avoided if the parents had acquired parental responsibility for the second female parent after the birth of their son.

If you are expecting a child with your partner, we advise that you seek legal advice prior to their birth, so that you are fully aware of your rights and responsibilities once your child is born. If you are not the spouse or civil partner of the mother giving birth, your solicitor can help you apply for parental responsibility once your child is born.

Your solicitor can also help if you are now separated from your partner and encountering difficulties with contact or living arrangements, and any concerns you may have regarding parental responsibility.

For more information contact Rachael Sutcliffe in our Family/Divorce department via email or phone on 01772 220 022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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