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The biological mother of a child, and the biological father if married to the mother at the time of birth, automatically gain parental responsibility. Since 1 December 2003, a non-married father registered on the child’s birth certificate will also automatically gain parental responsibility. Otherwise a non-married father can only obtain parental responsibility by agreement with the mother, or a court order. This may affect gay fathers who have had children in a previous relationship, or have fathered a child through sperm donation.
On termination of the relationship, a biological parent can apply to the courts for a residence order (custody) or for a contact order (access). In determining such orders the court will consider what is in the child’s best interests. A refusal to provide access or custody on the grounds of sexual orientation will be a breach of Article 8 (right to respect for personal and family life) and Article 14 (prohibition on discrimination) of the European Convention on Human Rights.
Civil partners who are not biological parents
Under the Civil Partnership Act 2004 (‘CPA’), when you enter a civil partnership with a person who has a child, you will become the step-parent on the same basis as a married non-biological parent. This confers no real legal status and the biological parents remain the legal parents. However it does enable you to more easily acquire parental responsibility in the same way as married step-parents under the Adoption and Children Act 2002. This enables you to obtain parental responsibility either by consent of those biological parents who have parental responsibility or a court order. Alternatively you can apply to adopt the child (a process which could sever the links with one or both biological parents). There is no requirement for a civil partner adopting their partner’s child to go through an agency or to live with the child for six months. Civil partners may also apply to become a guardian of the child; however this status is likely to be revoked if the civil partnership is terminated.
Civil partners are under a duty to provide maintenance for each other and any children of the civil partnership.
Non-civil Partners who are not Biological Parents
A non-civil partner who is not a biological parent can not become a step parent of their partner’s child. They can only obtain parental responsibility by obtaining a court order or applying to adopt the child on the same basis as non-married couples.
It is lawful for lesbian women to receive donor insemination or for gay men to use a surrogate mother. However currently private clinics are not obliged to offer this service, and there is no entitlement to NHS treatment. In December 2006, the government published its review of the Human Fertilisation and Embryology Act. This includes proposals to remove the ȁc;need for a fatherȁd; when considering ȁc;the welfare of the childȁd; when determining whether to provide fertility treatment. The proposed amendment recognises same sex civil partnerships and relationships on the same basis as married and non-married heterosexual relationships.
In addition, under the Sexual Orientation Regulations 2007 it is unlawful for both private and NHS clinics to refuse treatment to lesbian and gay men on the same basis as heterosexual men and women, since this would constitute discrimination in the provision of goods, facilities or services. These regulations also contains a specific provision that civil partners be treated the same as married partners.
Currently there is no automatic recognition of status and legal parenthood for a partner who is not the biological parent in a same sex couple who conceive a child by donor insemination / surrogacy. In relation to surrogacy an order will only be made in certain circumstances including if the couple are married. In relation to donor treatment, if married, the non-biological father will normally be recognised as the legal father, and if unmarried, the non-biological father will be deemed the legal father if treated together with the woman at a licensed centre. Under government proposals, the status and legal parenthood provisions which apply to married and unmarried heterosexual couples are to be extended to civil partners and non-civil partner same-sex couples. This will enable civil partners and other heterosexual and same sex couples in stable relationships to obtain parental responsibility.
Adoption and Fostering
Prior to 30 April 2007, there was no requirement on adoption and fostering agencies to consider lesbian and gay men as adoptive parents, although many did, particularly in relation to ‘hard to place’ children. The Sexual Orientation Regulations 2007 now makes it unlawful for a person providing any goods, facilities or services to members of the public to directly or indirectly discriminate (or victimise) on the grounds of sexual orientation in the provision or non-provision of such goods, facilities or services, or the terms upon which they are offered. This provision equally applies to adoption and fostering services, on the same basis as other service providers.
There is temporary exemption provided for religious organisations, who may continue to discriminate on the grounds of sexual orientation in the provision of fostering or adoption services until 31 December 2008. This is provided that the discrimination is necessary to comply with the doctrine of the organisation and to avoid conflict with the belief of a significant number of followers. Any exempted religious organisation is under an obligation to refer same sex couples who apply to adopt or foster, to agencies who are able to assist.
The European Court of Human Rights (ECtHR) has for some time recognised the relationship between biological parents and their children, such as in the case of Salgueiro Da Silva Mouta v. Portugal (1999). It has recently gone further to recognise same sex relationships with regard to the right to respect for a ‘home’ in Karner v Austria (2003). However to date the ECtHR has failed to accept that childless same-sex couples constitute a ‘family’ under Article 8 (right to respect for family life and home). This distinction was recently considered by the House of Lords in Secretary of State for Work and Pensions v M (2006), which refused to recognise the same sex relationship of a lesbian parent who was required to pay maintenance for non-resident children from a previous heterosexual relationship. Basically, when assessing the amount of payment, her finances were assessed as if she were single, whereas had she been heterosexual she would have been assessed as a couple and her contribution to her partner taken into account. Their Lordships noted that this was a pre-CPA case and that the UK Parliament had now legislated to ensure equal treatment. In a dissenting judgment, Baroness Hale commented that the fact that Parliament has legislated does not justify previous discrimination.