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Parental responsibility
One of the central legal issues in lesbian and gay parenting is parental responsibility.
In England and Wales it is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”. It is the starting point for recognition as a parent under the law.
In Scotland it is described in the Children (Scotland) Act 1995 as the responsibility:
Having parental responsibility for a child means that you can take decisions about matters such as education and religion and that you can consent to medical treatment for the child.
The biological mother of a child automatically has parental responsibility (or PR). A married father also automatically obtains parental responsibility for the child, but if you do not fall into one of these categories then you need to take some action in order to acquire PR.
A child’s biological father may get PR by entering into an agreement with the mother. This has to be on a particular form and must be filed with the court to have effect. Alternatively, a father could apply to the court for a parental responsibility order under section 4 of the Children Act. Both of these routes may, therefore, be available to gay fathers who have either had children in a previous relationship, or who have fathered a child through sperm donation. Since 1st December 2003 any father who is registered on the child’s birth certificate will also automatically have parental responsibility.
Other people who take on the role of parent for a child cannot get PR in the same way. The only practical route is by obtaining a residence order in respect of the child.
In Scotland a broader range of people can apply to the courts for parental rights and responsibilities – this is most relevant to lesbian co-parents and any awarding of these will only be done if it is deemed in the best interests of the child.
Co-parenting – shared residence
Residence orders stating which adult a child will live with are often made by the courts when a relationship breaks down and the parents disagree over where the child will live. The court can also make a shared residence order, for example, when a child spends time with each parent their separate households.
A shared residence order can also be granted, however, where the child is cared for by more than one adult in the same household. The shared residence order automatically grants parental responsibility to the other carer, recognising her as having a parental role; many lesbian parents have successfully applied for these orders to obtain parental responsibility for the co-parent. The courts have said that making an application for residence just in order to get parental responsibility can be appropriate . Although that was not said in the context of lesbian parenting it makes the important point that such an order is the only way of getting parental responsibility in certain cases.
So, the importance of a shared residence order is that the non-biological parent obtains parental responsibility and can be involved in decisions in the child’s life up to the age of 16, (the residence order and therefore the parental responsibility can be extended to age 18 in “exceptional circumstances” and this has been successfully argued in lesbian parenting cases to bring the situation in line with the parental responsibility of biological parents which lasts until age 18.) The parental responsibility granted by way of residence order is somewhat limited; it does not equal being a parent in terms of inheritance or maintenance, appointing guardians or consenting to adoption. The parental responsibility will also come to an end if the shared residence order comes to an end.
The Court of Appeal decided in 2000 , that it was no longer necessary to show “exceptional circumstances” to justify granting a shared residence order; the important thing was what was in the best interests of the child in the particular circumstances of the case. This case was not about gay or lesbian parenting, but it can be useful in persuading the court that it is not only in exceptional circumstances that a shared order should be made.
To make an application to the court for a residence order it may be necessary to apply first for permission, depending on whether the application is by consent, how long you have lived with the child and a number of other factors. The application can be made to a County Court, a Family Proceedings Court or the High Court. In Scotland it would be made to the Sheriff court.
Residence (custody)
The court makes decisions about residence (previously called custody) by considering what is in the child’s best interests. A number of factors, referred to as the welfare checklist (in section 1 of the Children Act 1989) are looked at and weighed up to decide what is in the child’s welfare. Parents coming out of heterosexual relationships and forming gay and lesbian relationships face particular anxieties about how their sexuality will affect a court’s decision if there is a dispute about who will look after the children.
The court’s attitude has changed a lot over the last few years and there is a much greater acceptance of lesbian and gay parenting.
The Human Rights Act 1998 and Scotland Act 1998 bring the European Convention on Human Rights into UK law and enshrine the “right to respect for [a person’s] private and family life” which can strengthen the position of lesbians, gay men and bisexuals in relation to family law. In the 1999 case of Salgueiro Da Silva Mouta v. Portugal the European Court of Human Rights found that the Portuguese Court’s decisions to deny a gay father access and custody for his daughter on the basis of his sexuality violated his rights under article 8 (right to respect for his family life) and article 14 (prohibition on discrimination) of the Convention.
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Children Act 1989 | |
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Children (Scotland) Act 1995 | |
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