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Child arrangements after a same sex separation or divorce

11th March 2021 by Jonathan Talbot

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Following the introduction of civil partnerships in 2005 and same sex marriages in 2014, there has been an increase in families and then relationship breakdown between same sex parents.

Finding agreement over issues relating to children can be tricky in any relationship breakdown.  When a same sex couple separate it can raise several unique additional questions regarding arrangements for children and each person’s legal rights when children may be adopted, the parents may benefit from surrogacy or sperm donation, or one partner may have children from a previous relationship.

Laceys Solicitors look at some of the steps and considerations same sex couples need to bear in mind in relation to agreeing future arrangements for children.

Reaching agreement together

In any family breakup, if an amicable resolution can be reached it will benefit everyone involved and especially the children.  If possible, it is best to keep open lines of communication with your former partner.  You may find that difficult initially as emotions may be quite raw immediately following a breakup.

We can assist in those early days, by helping you make arrangements which are focused on your child’s best welfare interests.  This may be by way of communicating with your former partner’s legal representative to agree the way forward, or we could help you organise mediation with your former partner.

Mediation allows you both to discuss matters face to face with a trained independent third party who will facilitate those difficult discussions between you in a calm manner.  In mediation we will help you explore options and recommend issues which you should try to reach agreement on, such as choice of school, holiday arrangements, and financial provision for your child. You can then confidently discuss arrangements with your former partner and make plans for the future.

Parental responsibility

If an agreement cannot be reached about arrangements for a child, then it is necessary to consider if you hold ‘parental responsibility’ – this is a legal term to reflect the rights, duties, powers, and responsibilities you have for a child.  It gives you the legal right to make certain decisions over your child, such as what school they attend and if they will undergo medical treatment.

Importantly, if you have parental responsibility you can apply directly to court for a ‘child arrangements order’ stipulating where your child lives and spends time.  If you do not hold parental responsibility, it may be necessary to make a separate application to the court first.  We can advise and represent you in seeking parental responsibility if you do not have it or are unsure.

Parental responsibility arises automatically in a number of ways, for example:

• if you are the birth mother of the child – this includes a mother who carried a child as a result of IVF with a sperm donor;
• if you were married or in a civil partnership with the mother of the child when the child was born – whether through fertility treatment or otherwise; or
• if you adopted your child.

The Human Fertilisation and Embryology Act (2008) defines, in different scenarios who the legal parent or parents of a child will be.  This legislation covers a multitude of situations and it is important that you seek specific legal advice for your own circumstances.

The information in this section only applies to children born after 6 April 2009.  If your child was born before that please contact us for further advice.

Surrogacy and parental orders

Generally, if you had a surrogate carry your child then you may have parental responsibility if you applied for a parental order.  A parental order not only provides you with parental responsibility, but it also extinguishes the surrogate mother’s parental responsibility.

You should apply for a parental order within six months of the child being born.  We can advise and represent you to ensure your application is made correctly within the required timescale.

Step parents’ rights

If your former partner had a child from a previous relationship before you married or entered into a civil partnership you will be considered the child’s step parent – and vice versa. This does not give you automatic parental responsibility, but you can obtain this via an agreement or a court order.

If you cohabited with your former partner and their child but did not marry or enter a civil partnership, then you will not become a step parent.  You may still be able to apply to court for a child arrangement order if you cannot agree arrangements with your former partner but there will be some extra hurdles for you to overcome in this case and it is best to take legal advice early.

The court must have as its paramount concern what is in the child’s best welfare interests, and so if you have a close relationship it is still likely the court will want to ensure that relationship can continue and is promoted.

The welfare of your child

The welfare considerations for a child in the breakdown of any relationship require the court to look at considerations such as the child’s age, their wishes and feelings, their education and health needs. The older the child is, the more weight will be given to their own feelings.

Children can be spoken to by an independent expert as part of the court process to ensure their own views are heard.  This is done in a sensitive and appropriate manner, away from the court, depending on the age and understanding of the child.  If you choose the mediation route, our mediators are also trained and qualified to see children to give them an independent voice.

We will advise you on the relevant welfare considerations for your child whether you are entering negotiations with your former partner or proceeding through court.

If you would like any further advice on family matters please contact either our Mediation department on 01202 377993 or g.burden@laceyssolicitors.co.uk or our Family department on 01202 755980 or j.talbot@laceyssolicitors.co.uk