Parental responsibility considerations for the LGBT+ community

Following on from Pride month, we continue to look at how the law affects the LGBTQ+ community. In this article, Remyhs Baker looks at what parental responsibility is and the considerations for the LGBTQ+ community.

Parental responsibility means all of the rights, duties, powers and responsibilities which, by law, a parent of a child has in relation to their child.

This includes for example,

• providing them with a home,
• having contact with them and living with them,
• protecting them,
• maintaining them,
• disciplining them,
• having a say in and providing their education,
• consenting to medical treatment on their behalf and appointing a guardian for them. 

Who has Parental Responsibility?

In the UK, a birth mother automatically has parental responsibility. A father can acquire parental responsibility if he is married to the mother at the time of the birth or (since 2003) is named on the child’s birth certificate. Parents can also obtain parental orders providing them with parental responsibility.

If a child’s parents are married or in a civil partnership when the child is born, they will both automatically have parental responsibility, so long as one parent is the birth mother. If the parents are not married however, only the birth mother will automatically have parental responsibility. If the other parent wishes to obtain parental responsibility, they will typically need to do one of the following:

• marry the mother or enter into a civil partnership with her,
• enter into a parental responsibility agreement with the mother and file this with the Central Family Court,
• obtain a Court order giving them parental responsibility,
• be named in a child arrangements order as a person with whom the child is to live or spend time with,
• be registered as the child’s father on a register of births in the UK,
• become the child’s guardian,
• adopt the child.

Furthermore carers and guardians for children can also obtain parental responsibility by way of court orders.

The law and the LGBTQ+

The law surrounding parental responsibility has come under scrutiny in recent years as it is quite a traditional approach which does not fit every family. Particularly LGBTQ+ families.

A transgender man who gives birth to a child will be registered as the child’s ‘mother’ on the birth certificate, a transgender female with be listed as the child’s father if this was the case pre transition. This is due to the fact that an acquired gender under the Gender Recognition Act 2004 does not affect a person’s parental status. This was intended to protect the existing legal parenthood of trans parents who have children before they change legal gender. However it may not reflect how a person identifies themselves and their relationship with their child but ensures the legal status and parental responsibility is not diminished. This requirement was held not to violate rights under the European Convention on Human Rights in the case of R (On the application of McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559. The issue now is that it is not possible, under the current law, for children’s birth certificates to be changed to include revised names or legal genders.

The law arguably needs to be reviewed and developed in line with families of today. Currently there is no clear provision in UK legislation for trans parents who conceive after having transitioned. In the significant case of Re TT (2019), Freddy McConnell was a trans man (legally male, with a gender recognition certificate) who gave birth to a son in the UK. He wanted to be recorded as his son’s ‘parent’ or ‘father’ on the birth certificate, but the Court of Appeal, ruled that he had to be registered as the ‘mother’ as he gave birth to his son. This result has highlighted the fact the current law does not work for trans parents. The rules at the moment are unclear. The current law works as follows:

• If you give birth to a child in the UK, then you will be registered as your child’s ‘mother’, even if you are legally male or if you identify as non-binary.
• If your partner carries your child, whether you are a legal parent and what title you have (‘father’ or ‘parent’) will depend on the circumstances. If you are a trans woman and you provide the sperm, you will be able to be recorded as a ‘parent’ rather than as your child’s ‘father’ if you are married to your partner or you conceive at a UK fertility clinic and are nominated as a ‘parent’. If you conceive at home and are not married, you will unavoidably be the ‘father’. If you do not provide the sperm, then the law protecting non-biological parents will normally apply to you. Whether you will be a ‘father’ or a ‘parent’ depends on the circumstances of conception, your marital status and whether you have a GRC before conception.
• If a surrogate carries your child, the surrogate is treated as the legal mother (and their spouse as the father/other parent). An application for a parental order will be needed to reassign the parental responsibility to the intended parents. On making the order, they become the child’s parents and therefore both obtain parental responsibility, and the surrogate would no longer be the child’s mother and would no longer have parental responsibility. This will also mean a birth certificate for the child will be re-issued.
• If two unmarried females have a child, the mother who gives birth to the child will automatically have parental responsibility, but the other will not and will need to obtain this. If they are married or in a civil partnership, they will both automatically have parental responsibility. 

Why is Parental Responsibility important?

Only someone with parental responsibility can make official decisions for a child for example choosing what medical treatment to get or making a decision about the child’s welfare. Therefore it is arguably of paramount importance that this area of law reflects all family units. This would require the Government to update legislation on parenthood to allow parents to choose their parental title recorded on children’s birth certificates or make all documents concerning legal parenthood gender neutral. It is crucial for children to know their heritage and that their birth certificates reflect the reality of their lives and familial relationships.

More information

To discuss this further, please contact our family team here.   

This article was written by Remyhs Baker, Solicitor. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2021.