The LGBT+ Community and Children Act Matters: A Family Law Solicitor’s Perspective.

February holds special significance for the LGBT+ community as the UK celebrates LGBT+ History Month. This annual event serves as a time to reflect on the strides made toward equality and the legal obstacles that remain. One of the most important areas where legal rights and protections have evolved is family law, particularly in relation to safeguarding the rights of LGBT+ parents and their children.

The Children Act 1989 ensures that the welfare of the child is always the paramount consideration in legal decisions. For LGBT+ individuals and couples, navigating issues like parental responsibility, adoption, surrogacy, and child arrangements can present unique challenges. It is essential to understand these complexities and provide inclusive legal support to those within the LGBT+ community.

Parental Responsibility in LGBT+ Families

Parental responsibility (PR) gives individuals legal rights and duties concerning a child’s upbringing, covering key decisions about education, healthcare, and religion. Under the Children Act 1989, biological mothers automatically have PR at birth, LGBT+ parents often need to take additional legal steps to secure these rights.

• Same-Sex Female Couples: When a child is conceived through fertility treatment at a licensed clinic, both partners can be recognised as legal parents. The birth mother automatically has PR, while her partner will also have PR if they were married or in a civil partnership at the time of conception. If not, PR must be obtained through a parental responsibility agreement or a Court order.

• Same-Sex Male Couples: In surrogacy cases, the surrogate is the legal mother at birth, even if she has no genetic connection to the child. The surrogates spouse by way of marriage or civil partnership, will also have PR. The intended parents must apply for a parental order to transfer legal parenthood and PR to themselves.

• Transgender Parents: A transgender parent who gives birth will be legally recognised as the mother, even if they identify as male. Courts have begun to acknowledge gender identity in parental disputes, but legal reform is still needed to ensure full recognition of transgender parental rights.

Adoption and Surrogacy

The Adoption and Children Act 2002 ensures that LGBT+ couples and individuals have the same legal right to adopt as heterosexual couples. Courts will always prioritise the child’s best interests, and sexual orientation or gender identity should not be a barrier to adoption.

For same-sex male couples, surrogacy is a widely chosen path to parenthood. However, UK law requires intended parents to apply for a parental order after birth, which can be a lengthy process requiring the surrogate’s formal consent. Legal guidance is essential before beginning a surrogacy arrangement to ensure that all parental rights are properly secured.

Child Arrangements and Disputes

When relationships break down, deciding child arrangements (previously known as custody and contact) can be complex, especially in LGBT+ families where legal parenthood may not be straightforward.

• If both parents have PR, the court will prioritise factors like the child’s emotional needs, stability, wellbeing and relationship with each parent when deciding where the child should live and how contact should be arranged.
• If a non-biological parent has not obtained PR, they may face difficulties in securing contact. However, the court can grant child arrangement orders or special guardianship orders to ensure the child maintains a meaningful relationship with a non-biological parent.

The Significance of February for LGBT+ Families

February’s LGBT+ History Month serves as a powerful reminder of the legal and social struggles LGBT+ individuals have faced, including in family law. In the past, same-sex couples were denied the right to marry, adopt, or gain legal recognition as parents. While significant progress has been made, issues including transgender parental recognition, surrogacy rights and legal parenthood still require reform.

This month is an opportunity to celebrate advancements in LGBT+ family rights while raising awareness of the ongoing legal challenges. It is also a time for LGBT+ parents to seek legal advice to ensure their rights, and their children’s best interests, are fully protected.

Conclusion

The Children Act 1989 provides critical protections for children in LGBT+ families, ensuring their welfare remains the priority in legal decisions. However, challenges remain, particularly around parental recognition, surrogacy, and co-parenting rights.

This LGBT+ History Month, we recognise the progress made in family law and the ongoing need for legal support. By offering informed legal guidance, family solicitors help ensure that LGBT+ families receive support and protection that they deserve, reinforcing equality in parenting rights.

For advice, please contact our family law team at Lanyon Bowdler.