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Same Sex Relationships :  Children When Relationships End

20 July

Same Sex Relationships : Children When Relationships End

When a relationship breaks down, there are always issues which need to be resolved.

This may involve detailed assessment of finances and support or children. In same sex relationships the issues relating to children may be particularly difficult and complex to resolve. 

A child may be the biological child of one of the couple and may or may not be legally adopted by the other. Children may come from a previous relationship and so we are dealing with stepchildren or there could be some form of surrogacy arrangement which gave rise to the children. So there may also be third parties who have an interest in the life and upbringing of the child. 

In all scenarios the right of the child must be considered.  

Can a stepparent have rights to see their stepchildren?

A stepparent, whether in a same sex or heterosexual relationship, needs “leave” (permission from the court) to make an application to see their stepchildren following the breakdown of a relationship unless they have lived with the child for the last three years. 

If a stepparent can show that they have a relationship with the child and that it is in the child’s best interest for that relationship to continue, then the application is likely to be successful. 

As always it is important to get proper expert advice early on. Mistakes manoeuvring through the court system in these circumstances can be devastating.

Can a stepparent acquire parental responsibility?

A stepparent does not have parental responsibility and there are no circumstances where they would automatically acquire parental responsibility for a stepchild. However, with the consent of all those with Parental responsibility (normally the child’s two parents) a Parental Responsibility Agreement can be drawn up, granting Parental responsibility to a stepparent. If one parent does not consent then the only way for a step parent to acquire Parental responsibility would be by making an application to the court. Whether the relationship is same sex or heterosexual the step parent is in exactly the same position and must follow the same process to acquire Parental responsibility.

Can stepparent parental responsibility be revoked?

Once acquired Parental responsibility only ceases by:

  • an order of the court; or
  • the child becomes an adult, at which point Parental Responsibility automatically ends anyway. 

What if we have a child by surrogacy or sperm donor?

If a married couple or a couple in a Civil Partnership arrange to have a child by surrogacy or sperm donation then both “parents” can be registered on the birth certificate and both will automatically acquire Parental Responsibility. 

If the parents are an unmarried couple or a same sex couple who are not in a Civil Partnership the leave to apply may be required so that an application can be made for Parental Responsibility. 

What is Parental Responsibility?

Parental responsibility is a bundle of legal rights and obligations that essential pertain the being a parent. These include the right or obligation to make day to day decisions regarding the child and his or her upbringing, making decisions about medical treatment, education, religious upbringing, where the child should live etc…..  Where those with Parental responsibility cannot agree what is best for their child then they would need to make an application for a Child Arrangements Order, Specific Issue Order or Prohibited Steps Order, depending on the issue which has arisen. 

What are the timescales for applying to the court to see my children?

As with all legal issues, time can be of the essence. Before making any application to court, a couple must have first made a referral to Mediation and attended a Mediation Information and Assessment meeting. This can take some time. Once an application is filed, the first hearing might not take place for up to 6 weeks. This can be a long wait if a parent has not seen their child for some time already. 

The court is always keen to avoid unnecessary disruption for children, and if the child has been used to spending time with a parent, then the court will want to address the issues as soon as possible so that arrangements can hopefully be made to reinstate this arrangement, as long as it is safe to do so and is in the best interests of a child. Early involvement from CAFCASS (Child and Family Court Advisory and Support Service) can assist with this, and before attending a first hearing, CAFCASS will have spoken to both parents to try to establish the issues and make recommendations to resolve them. It might also be recommended that the parents and/or stepparents attend a Separated Parents Information Programme (SPIP) which are attended separately by each parent, to consider the impact of the relationship breakdown on your children. 

Usually, Child Arrangements Applications are resolved within 6 months, depending on other reports required and the issues involved, but the court does like to manage these cases and resolve issues in the best interests of the children as soon as possible. At this time, these timescales can be delayed due to COVID-19. 

Some cases do involve more complex issues, such as children or adults with additional needs, or perhaps issues of domestic abuse, however these can all be addressed but may also extend the timescales involved. 

The most important thing is to get advice as soon as possible – even if you do not make a court application straight away. Knowing your position can offer reassurance and help you to have a plan in mind for the future. 

If you have any queries, please do not hesitate to contact our Family Law Helpline on 0114 220 2186.