Working out legal parenthood
We map who the law treats as the child's parents today and what must change, which drives the choice of order.
Family LawAdoption, Surrogacy and Fertility Solicitors
Adoption, Surrogacy and Fertility Solicitors
RakLAW Solicitors advises adopters, step-parents, intended parents and surrogates in England and Wales on adoption, parental orders and legal parenthood.
The law does not always treat the people raising a child as its parents. Adoption and the parental order are the two court routes that change that.
Our family solicitors are at 42 Shad Thames in Southwark, a short walk from Tower Bridge, and offer a free 15-minute consultation.
Adoption and Surrogacy Advice in England and Wales
A child can be adopted if they are under 18 at the application and have never been married or in a civil partnership. An adopter must be 21 or over, and may be single, a couple or the partner of the child's parent. Each birth parent who has parental responsibility normally has to consent, and the court can dispense with a required consent only on the grounds the Act sets out.
Surrogacy is lawful here, but a surrogacy agreement cannot be enforced, and payments to a surrogate in the UK are expected to go no further than her reasonable expenses: on a parental order the court must be satisfied that nothing beyond those expenses changed hands unless it authorises the payment. She is the child's legal parent at birth, and her spouse or civil partner is the second parent unless they did not give permission. Legal parenthood passes to the intended parents only by a parental order or by adoption.
Fertility treatment raises the same question earlier: a man who donates through a licensed clinic is not the legal parent, while a private donor may be the legal father. Each card below leads to a detailed page, and our charges are on the family law fees page of our family law practice.
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Understanding Adoption and Parental Orders
Two statutes do the work. Under the Adoption and Children Act 2002 the child's welfare throughout his life is the paramount consideration, and no order may be made unless it would be better for the child than making none. The Human Fertilisation and Embryology Act 2008 decides who counts as a parent after assisted conception and provides the parental order.
- Adoption order: gives parental responsibility to the adopters and ends everyone else's, except that in a step-parent adoption the parent who is the applicant's partner keeps theirs.
- Parental order: after a surrogate birth, treats the child in law as the applicants' child where one of them provided the gametes, and one person can apply alone.
- Neither is a special guardianship order, which changes who cares for a child, not who the parents are.
An adoption order is permanent: it ends existing orders under the Children Act 1989 and future maintenance duties, and the adoption certificate replaces the original birth certificate. Our parental responsibility page explains what that covers.
Evidence and Common Issues
What is asked for depends on the route, but the recurring items are:
- The child's full birth certificate, with a certified translation where it is not in English.
- Evidence that the child has had a home with you for the period your route requires.
- In a non-agency adoption, notice to the local authority between three months and two years before the application.
- The written agreement of the surrogate and any other legal parent, ineffective if she gives it in the first six weeks.
- An account of every payment, because the court must be satisfied nothing beyond reasonable expenses changed hands unless it authorises it.
Three problems are worth avoiding. A parental order application should be made within six months of the birth, because that is the period the Act sets, and a later application needs the court to be persuaded to hear it, so take advice at once if the date has passed: our parental orders page explains where that leaves you. Where the consent notices were not signed and given to the clinic before treatment, a second parent may have no legal status. An overseas element adds a second system of rules and the child may need entry clearance, which our family immigration solicitors advise on.
When Legal Advice Is Especially Important
Take advice early, and certainly before money changes hands or a child is placed, where:
- Neither intended parent is genetically related to the child, or the surrogate or her spouse may not agree.
- A birth parent cannot be found, lacks capacity or opposes the adoption, so the court is asked to dispense with consent.
- You are considering step-parent adoption, which ends the other birth parent's status, where parental responsibility or a child arrangements order may do instead.
- Treatment took place abroad, the surrogate lives abroad or the child was born abroad.
- A local authority is involved with your child, or you are a parent opposing a placement order or an adoption order. RakLAW is privately funded, and legal aid in those cases is not means tested for a parent and comes from a firm that holds a legal aid contract: see our care proceedings and social services pages.
Where a child is at immediate risk, call 999. If domestic abuse is part of the picture, the National Domestic Abuse Helpline is 0808 2000 247, and our domestic abuse and injunctions pages set out the orders a court can make.
How an Adoption or Parental Order Works
Both applications follow the same arc: the differences lie in the conditions you satisfy before you file.
- 01 Establish who the legal parents are now
After a surrogate birth that is the surrogate, and her spouse or civil partner unless they did not consent.
- 02 Choose the order that fits
A parental order needs a genetic link and adoption does not, so where neither applicant is related, adoption is the route.
- 03 Satisfy the conditions before you apply
For adoption, the home condition period and, in a non-agency case, notice to the local authority. For a parental order, six months from the birth and the child's home with you.
- 04 Apply to the family court
An adoption order goes on form A58, or online for a post-placement adoption, and a parental order on form C51. Fees are on the GOV.UK adoption court order and parental order pages.
- 05 The court appoints a reporter
In adoption proceedings the court appoints a children's guardian or reporting officer and considers whether a welfare report is needed. On a parental order it appoints a parental order reporter.
- 06 Directions hearing, then the final hearing
A first directions hearing sets the timetable and gives directions about the final hearing.
- 07 After the order
The adoption is permanent, and the adoption certificate is not sent automatically, so you order a copy from the General Register Office.
How Our Adoption Solicitors Can Help
Preparing the application
We prepare the A58 or C51 application, gather the birth certificate, translations and agreement forms, and deal with the court fee.
Surrogacy advice and expenses
We advise intended parents or a surrogate before and after the birth, and on the record of expenses. The law does not allow a solicitor to negotiate the terms of a surrogacy arrangement for payment, so we do not do that.
Fertility clinic paperwork
We check consent notices before treatment rather than after, so a second parent's status rests on signed forms.
Family and immigration together
Where a child is adopted or born abroad, our family and immigration solicitors handle the entry clearance and the family application together.
Why Choose RakLAW Solicitors?
Regulated and accountable
RAKLAW Solicitors Ltd is regulated by the Solicitors Regulation Authority, SRA number 8007405, and our family law fees are published openly.
Straight answers on a sensitive subject
We tell you what the law allows, including where an arrangement you have already made cannot be enforced.
Family and immigration under one roof
Adoption from overseas and international surrogacy raise immigration questions, and we advise on both from one office.
A short walk from Tower Bridge
Our office at 42 Shad Thames, London SE1 2YD is close to Tower Hill and London Bridge.
Free 15-minute consultation
A first conversation at no cost helps you decide whether you need a solicitor throughout or for one stage.
Adoption, Surrogacy and Fertility FAQs
Who can apply to adopt a child in England and Wales?
An adopter must be 21 or over, with no upper age limit, and may be single, a couple or the partner of the child's parent. At least one of a couple must be domiciled in the UK, Channel Islands or Isle of Man, or both habitually resident there for a year.
Whose consent is needed for an adoption order?
Consent is the first of three conditions in the Act: the court must be satisfied that each parent or guardian with parental responsibility consents, or that the consent should be dispensed with, so a birth father without parental responsibility is not a parent whose consent is needed. A required consent can be dispensed with only where the parent or guardian cannot be found, lacks capacity to consent within the meaning of the Mental Capacity Act 2005, or the child's welfare requires it, and consent given by the mother in the first six weeks after the birth is ineffective. Where an adoption agency placed the child with consent given earlier or under a placement order, a parent cannot oppose the adoption order without the court's leave.
How long must the child live with us before we can apply?
Ten weeks after an adoption agency or High Court placement, six months where you are the partner of a parent, one year for local authority foster parents, and otherwise three of the last five years. The court can give leave in the last two cases.
Can I adopt my husband, wife or partner's child?
Yes. Tell your local council at least three months before applying, and the child must have lived with you both for six months. The order removes the other birth parent's parental responsibility, so consider whether parental responsibility by agreement or a child arrangements order would do instead.
Can we adopt a child from another country?
Yes, through a UK adoption agency, which assesses whether you are eligible and suitable. Your application then goes to the Department for Education or your UK Central Authority, which issues a Certificate of Eligibility to Adopt. A restricted country needs a written exception request.
Is surrogacy legal in the UK?
Surrogacy itself is lawful, and an arrangement is not enforceable by or against the people who made it. Payments to a surrogate here are expected to go no further than her reasonable expenses, and where more has been paid the court must decide whether to authorise it before it can make a parental order.
What are the conditions for a parental order?
An application can be made by two people who are married, civil partners of each other or living as partners in an enduring family relationship, or by one person alone. The gametes of at least one applicant must have been used, the application must normally come within six months of the birth, the child's home must be with the applicants, and at least one of them must be domiciled in the UK, the Channel Islands or the Isle of Man. Applicants must be 18 or over when the order is made, and the surrogate and any other legal parent must agree freely and unconditionally, with the surrogate's agreement ineffective if given in the first six weeks after the birth.
Can I apply for a parental order on my own?
Yes. Since 3 January 2019 one person can apply under section 54A of the 2008 Act, provided the child was carried by someone else, the applicant's own gametes were used, the child's home is with the applicant and the applicant is domiciled in the UK, the Channel Islands or the Isle of Man.
What if neither of us is genetically related to the child?
A parental order is not available, because the Act requires the gametes of at least one applicant. GOV.UK guidance is that adoption is then the only way to become the child's legal parent.
Is a sperm donor the legal father of the child?
Not where he donated through a clinic licensed by the Human Fertilisation and Embryology Authority and gave the consent the law requires: he is then not the legal parent and not named on the birth certificate. Outside a licensed clinic he may be the legal father, depending on the mother's marital status and how conception took place.
Can birth relatives still see the child after an adoption?
Before making an adoption order the court must consider whether there should be arrangements for anyone to have contact with the child. Where an agency placed the child, the court can also make an order about contact afterwards.
Do we have to attend the court hearing?
The rules expect the applicant and the child at the final hearing, though the court may direct that one or both need not attend. GOV.UK says you do not have to attend any hearings, so follow your court's directions.
How much will an adoption or parental order cost?
Court fees are published on the GOV.UK pages for adoption orders and parental orders, and an overseas adoption also carries a departmental fee. Our own charges for this work are set out on our fees for family law page. RakLAW does not offer legal aid.
Speak to an Adoption or Surrogacy Solicitor
Whether you are starting an adoption assessment, planning a surrogacy arrangement or wondering who your newborn's legal parents are, a free 15-minute consultation will help.
Request a call back and tell us briefly what you need advice on.