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30 April 2024

What is a Parental Order?

Sarah Williams, Partner and Head of Modern Family Law, sets out a step by step guide with answers to the frequently asked questions surrounding Parental Orders.

What is a Parental Order?

A Parental Order is a post-birth court order whereby the intended parent(s) become the legal parent(s) of the child and the legal status and responsibilities of the surrogate and her spouse (if she has one), are permanently extinguished.

How you do obtain a Parental Order?

To obtain a Parental Order, the intended parent(s) must satisfy the family court that they meet all the mandatory criteria set out in section 54 and section 54A of the Human Fertilisation and Embryology Act 2008, which are:

  • Single individuals, same-sex or different-sex couples are eligible apply (they must be over 18);
  • The conception must be via embryo transfer or artificial insemination;
  • The child must be carried by a surrogate;
  • One of the intended parents must be the child’s biological parent. With a single parent, he or she must be the biological parent of the child.
  • If the intended parents are applying as a couple they must be married, civil partners or living as partners in an enduring family relationship.
  • The intended parents must submit their application for a Parental Order to the court within the six months after their child is born (although the court can give permission to extend this).
  • At the date the intended parent(s) apply and the date the order is made, the child must be living with the intended parent(s).
  • At the date the intended parent(s) apply and the date of the order, the intended parent (or if applying as a couple at least one of them) must be ‘domiciled’ in the United Kingdom, the Channel Islands or the Isle of Man.
  • The surrogate and her spouse (if she has one) must fully and freely consent to the making of a Parental Order (unless they cannot give valid consent or cannot be located). The surrogate’s consent is invalid if it is given within six weeks after the birth of the child.
  • If the court is satisfied that the eligibility criteria are met, it will then consider whether the making of a Parental Order is appropriate to safeguard the child’s lifelong welfare.

Can you pay expenses to a surrogate?

You can pay reasonable expenses to the surrogate. If you pay more than reasonable expenses, these must be retrospectively authorised by the Court.

What is the application process for a Parental Order?

Intended parents apply for a Parental Order by completing court Form C51.

This will be filed with the local family court of the intended parent(s) if the child is born in the UK or with the Central Family Court, London if the child was born abroad.

The court will process the application for a Parental Order and send a copy, together with a Form C52 (the acknowledgment) to the intended parents who must then send this to their surrogate and her spouse.  The surrogate and her spouse should then complete and sign the C52 form and file it with the court.

What does a Parental Order Reporter do?

The court will contact the Child and Family Court Advisory Service and appoint a Parental Order Reporter who will visit the intended parent(s) and child at home and help the Court make a decision on the Parental Order application.

Parental Order Reporters are qualified social workers who represent the interests of child(ren); they consider the family circumstances and check that they are in line with the Parental Order criteria.

The Parental Order Reporter will write a report for the court which recommend whether a Parental Order should be made. The work of the Parental Order Reporter can take 8 – 12 weeks. They may make checks with the Local Authority and the Police to see if there is any information held which might be relevant to the welfare of the child. The lifelong welfare of the child is the Court’s paramount consideration.

UK surrogacy cases are dealt by lay magistrates and there will be usually be one hearing only.

International surrogacy cases are automatically allocated to the High Court. There is usually two court hearings and the process can take up to a year to complete.

How do I obtain a UK birth certificate?

A UK birth certificate will be issued after the Parental Order is granted and it will show the intended parents as being the child’s legal parents.  This birth replaces the original birth certificate.

In international surrogacy cases, the child will be issued with a UK birth certificate in addition to the foreign birth certificate.

Do I really need a Parental Order?

A Parental Order secures the legal status of intended parents under UK law.

Some intended parents may not appreciate that they should still obtain a Parental Order even if they are named on their child’s foreign birth certificate.

Without a Parental Order the intended parents will not have recognised legal parenthood in the UK and this can be problematic. For example, it can mean:

  • Having to involve the surrogate in decisions such as taking the child out of the jurisdiction and obtaining a new passport for the child
  • The parent(s) not having legal authority to make decisions about their child’s religion, health care and education;
  • Issues with inheritance;
  • Interference/concern from Social Services

To discuss obtaining a Parental Order, please contact Sarah Williams, Partner and Head of Modern Family Law or alternatively, telephone on 020 7465 4300.

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Sarah Williams
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