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News

06 April 2021
Same Sex Couples and Children Disputes

When any couple separate or divorce and children are involved it can be a very difficult time for both partners and the children themselves.  The whole scenario can become even more complicated where same-sex couples are involved particularly if legal advice was not sought in respect of the children at the outset.  These cases may involve adoption, surrogacy or sperm donation. Since civil partnerships were introduced in 2005 and same-sex marriages in 2014, there has followed an increase relating to relationship breakdown and children issues.

A recent judgment FC v MC and DC (A Minor) [2021] EWHC 154 (Fam) highlighted these difficulties. The couple were in a long term relationship (2010 to 2018) but did not marry or enter a civil partnership.  When they decided to have a family they opted to use the sperm of a willing friend and artificial insemination at home. The respondent would be the birth mother and it was her egg that was fertilised. 

When the child was born the respondent's name was entered as the child's mother on the birth certificate and also automatically had parental responsibility.  Unfortunately, the applicant could not be named on the birth certificate as the artificial insemination had not taken place at a Human Fertilisation & Embryology Authority (HEFA) registered clinic. Had it done so then both parties could have formalised their intended status as parents.  The applicant would then have been legally recognised as the child’s second parent whereas in their circumstances the applicant had no legal status in relation to the child.  This caused problems when the relationship broke down and the parties separated.  The Applicant issued proceedings for contact and parental responsibility but had to rely on procedures for applicants who are not a parent or guardian of the child. As the respondent opposed the application the case became increasingly difficult.

At the conclusion of the case Mrs Justice Leiven ordered a 'shared care, lives with' order granting the applicant parental responsibility.  As in all children cases the court has to consider the child’s welfare.

This case highlighted the importance for same sex couples to take specific fertility law advice to fully understand the implications of parental responsibility and their legal status and to ensure that this is formalised from the beginning of the process.

It is also important that the sperm donor understands the legal implications of donating outside of a registered clinic to ensure that no future claim can be made against him in respect of his legal status as the biological father (even if not named on the birth certificate).

In the myriad of blended families there are many variations and it is important to understand your legal status and responsibilities in relation to any children involved.  For instance if you marry or enter into a civil partnership and your partner has a child from a previous relationship you will be considered the child's stepparent although it is important to note that this does not give you automatic parental responsibility.

This article is intended to provide a general guide. Specialist advice should be sought about your specific circumstances.

 

 

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