Parental Orders

What a Parental Order Does

When a child is born through surrogacy, the law does not treat the intended parents as the parents at birth. Under section 33 of the Human Fertilisation and Embryology Act 2008 the woman who carried the child, and no other woman, is treated as the mother. If she is married or in a civil partnership, her spouse or civil partner is treated as the second parent unless it is shown that they did not consent. That is so even where the child is genetically yours and has lived with you from the start. Our page on surrogacy law explains the arrangement itself.

A parental order changes that. The court may order that the child is to be treated in law as the child of the applicants. Under the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 the order transfers parental responsibility to you, and the child is treated in law as not being the child of anyone else. A new birth certificate can then be ordered.

Without an order, government guidance warns that intended parents may not have the authority to make decisions about their child's education and medical care, may not be able to travel abroad with the child, and may face difficulties over inheritance and pensions or if they separate. Where neither of you is genetically related to the child a parental order is not available, and GOV.UK says adoption is then the only way to become the legal parent.

The Conditions the Court Must Find Met

Section 54 of the Act covers two applicants. Section 54A, in force since 3 January 2019, covers one. The court may make an order only if every condition is met:

• the child was carried by a woman who is not an applicant, as a result of the placing in her of an embryo, or sperm and eggs, or her artificial insemination
• the gametes of at least one applicant, or of the sole applicant, were used to create the embryo
• two applicants are married, civil partners, or living as partners in an enduring family relationship
• the application is made within six months beginning with the day the child is born
• the child's home is with you at the time of the application and at the time of the order
• at least one applicant, or the sole applicant, is domiciled in the United Kingdom, the Channel Islands or the Isle of Man at both of those points
• each applicant is 18 or over when the order is made
• the surrogate and any other legal parent have agreed freely, unconditionally and with full understanding of what is involved
• no money or other benefit has been given or received, other than expenses reasonably incurred, unless the court authorises it
• no earlier parental order has been made for the child, unless it was quashed or overturned on appeal

The Act's word is domiciled, which GOV.UK puts as residing permanently here. It is a legal test, and it needs checking early where either of you was born abroad or has lived abroad. Meeting the conditions is not the end of the matter: the 2018 Regulations apply section 1 of the Adoption and Children Act 2002, so the child's welfare, throughout his or her life, is the court's paramount consideration.

Agreement, Expenses and Common Problems

The surrogate's agreement is ineffective if it is given less than six weeks after the birth. Agreement is given on form A101A, which in England and Wales must be witnessed by a Cafcass officer, or by a Welsh family proceedings officer where the child ordinarily lives in Wales. The form states that agreement may be withdrawn at any time until the court makes the order, and it advises the person signing to take legal advice first.

Agreement is not required from a person who cannot be found or who is incapable of giving it. Under the Family Procedure Rules you must say so in the application or in a later written note, and file a statement of facts to satisfy the court that this is the position.

Payments need the same care. GOV.UK says you cannot pay a surrogate in the UK except for her reasonable expenses. Government guidance gives the surrogate's loss of earnings, additional childcare and maternity clothes as examples. If the court thinks more than reasonable expenses were paid, it has to decide whether to authorise the additional payments retrospectively, so a complete schedule of every payment, backed by bank records, matters.

How the Parental Order Process Works

1. We check each condition against your facts: the genetic link, domicile, the dates and every payment made.
2. The application goes to a family court on form C51 with the child's full birth certificate and the court fee. The current fee is on the GOV.UK parental order page.
3. The court sets a first directions hearing, appoints a parental order reporter and issues the C52 acknowledgement form, which you must give to the surrogate. She and any other parent are respondents to the application.
4. The reporter, a qualified social worker from Cafcass (Cafcass Cymru in Wales), will usually meet you, see you with your child and interview the surrogate to make sure that her agreement is freely given.
5. The reporter may make checks with the local authority and the police, and provides a report before the final hearing recommending whether an order should be made.
6. At the final hearing the court decides whether every condition is met and whether an order serves the child's lifelong welfare.
7. If an order is made, the General Register Office adds an entry to the Parental Order Register and new birth certificates can be ordered.

Births Overseas and Late Applications

The Act applies whether the surrogate was in the United Kingdom or elsewhere when the embryo was placed or the insemination took place. Government guidance says that if the surrogacy takes place abroad but you live in the UK, domestic law still applies and you must obtain a parental order to be considered the legal parents in the UK. Cases involving a surrogate overseas are heard by a High Court judge, and the Foreign, Commonwealth and Development Office strongly advises specialist legal advice both here and in the other country before any arrangement is made. Bringing the child to the UK raises separate nationality and immigration questions, which belong to our family immigration pages.

The six month period is written into the Act, which contains no express power to extend it. In Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) the President of the Family Division held that the court could still make an order on an application made after the six months, asking whether Parliament could really have intended the gate to be barred forever by an application lodged one day late. That decision rested on its own facts and on the child's welfare. It is never safe to plan on a late application: apply in time wherever you can, and take advice at once if the date has passed.

When Legal Advice Is Especially Important

Advice matters most where:

• your child is approaching six months old, or the period has already passed
• the birth took place abroad, or payments went beyond reasonable expenses
• the surrogate is married or in a civil partnership and her spouse or partner has not been involved
• the surrogate or another legal parent cannot be traced, or is reluctant to sign
• either of you was born abroad or lives abroad, so domicile is uncertain
• you are applying on your own, or your relationship has changed since the birth
• you are a surrogate who has been asked to sign and want independent advice first

Until an order is made you may have no legal authority for your child. Government guidance says it is sensible to consider a will that appoints guardians in the meantime, which our will writing service can prepare. Authority for day-to-day decisions is covered on our parental responsibility page.

How RakLAW Solicitors Can Help

Our family solicitors at 42 Shad Thames in Southwark, a short walk from Tower Bridge, advise on parental orders as part of our adoption, surrogacy and fertility work. We start with a free 15-minute consultation, check the conditions in the Act against your facts and tell you plainly where the risks lie.

We then prepare the C51 application, your statement and the schedule of payments, deal with service and the agreement forms, and represent you at the directions and final hearings. We can also advise a surrogate or her partner independently, in a case where we do not act for the intended parents. RakLAW does not offer legal aid; our charges are on our fees for family law page. Call 0203 345 2000 or book an appointment.