What is a Parental Order?

Surrogacy is the term used to describe the process when a woman carries a child for someone who is unable to conceive or carry a child themselves. Under UK Law, the Surrogate is always initially classed as the legal mother of the child. If the surrogate is married, provided their spouse has been fully involved with the fertility treatment and has consented to the same, their spouse will be the child’s second legal parent and they will each be named on the child’s original birth certificate.

This means that when the child is born, the surrogate and her spouse will be the child’s legal parents until such time as either a Parental Order or adoption order is made. The Parental Order will confer legal parenthood and parental responsibility on the Intended Parents.

Application for a Parental Order

An application for a Parental Order can be made six weeks after the birth of the child but must be made before the child is six months old.

There is criteria that must be met before the Court will grant a Parental Order. This criteria is set out in Section 54 of the Human Fertilisation and Embryology Act 2008 where the Applicants are a couple and in section 54A for single applicants.

On average, the process in obtaining a Parental Order from the Court usually takes between six and nine months. Once a Parental Order is applied for, the Court usually list the matter for a directions hearing where they will appoint a Parental Court Reporter to prepare the necessary Parental Order Report.

This report will be prepared by an appointed CAFCASS Parental Court Reporter who will usually meet with the Intended Parent(s) and surrogate and then provide their advice to the Court, by way of a report, as to whether they would recommend a Parental Order be made.

However, due to the current Court backlogs and the increasing demand on CAFCASS, this has resulted in delays for many of our clients in obtaining the Parental Order. For many clients, a delay is not an issue however for some this can have a significant impact.

What can I do if my application for a Parental Order is delayed?

A delay in obtaining a Parental Order will usually mean a delay in conferring legal parenthood and parental responsibility on the intended parents which can result in the Surrogate having to be present to make important decisions and sign documents as the child’s legal parent.

In a recent case, we were instructed on behalf of Intended Parents who had a pre-booked holiday in which it was hoped that they would enjoy upon obtaining the Parental Order.

Unfortunately, due to CAFCASS’ extensive workload, a request was made by them for an extension of time for them to prepare the Parental Order Report which meant a delay in our clients obtaining the Parental Order and a further delay in obtaining a birth certificate for the child naming them as parents. This delay in obtaining a Parental Order for the child left the Intended Parents without the security of Parental Responsibility should they be required to make important decisions on behalf of the child in an emergency and also caused difficulties in securing a Passport for the child.

We therefore made an application to Court on behalf of the Intended Parents to request that a Child Arrangements Order which set out that the child should live with them and that on this basis they should be provided with Parental Responsibility for the child.

Furthermore, we also made an application to Court for a Specific Issue Order on behalf of our clients that set out that the child could travel with them on their pre-arranged holiday. This alleviated any risks that they may face at the airport on the basis that they were not at present named on the birth certificate.

The Court heard the matter and made an Order that the child shall live with the Intended Parents which also provided them with Parental Responsibility for the child and a Specific Issue Order that the child could travel with them abroad.

Having also encountered difficulties with the Passport Office in trying to obtain a Passport for the child, upon receipt of the Child Arrangements & Specific Issue Order from the Court, the Passport Office issued the Passport and therefore our clients were able to travel on holiday with the security of a Specific Issue Order and Parental Responsibility for the child.