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      Can I contest a divorce?

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      Respondents no longer have the ability to contest a divorce. However, they can still contest the divorce application on some legal grounds.
      Can I contest a divorce?
      Since new divorce laws were introduced in April 2022, it is no longer possible to contest a divorce.
      If your husband or wife filed for a divorce or civil partnership dissolution on or after April 6th 2022, you can only contest the divorce in exceptional legal circumstances. These include:

      Jurisdiction – if you of your partner live in another country, the courts in England and Wales may not be handle your application.
      If you can prove that the marriage or civil partnership was never valid. For example, if the marriage/civil partnership was not conducted in accordance with the laws of the country in which you married, meaning you did not enter into a legally legitimate marriage/civil partnership.
      If the marriage/civil partnership has already legally ended. For example, if you’ve already gone through divorce proceedings in another country.

      If any of the reasons for contesting a divorce apply, you will need to file a response to the application explaining your reason for disputing the proceedings.
      It is highly recommended you seek legal advice before responding to the divorce application.
      Can I disagree with an application without contesting the divorce?
      No. The only ground for divorce is that one or both parties believe the marriage has irretrievably broken down. No other facts have a bearing on the divorce process or outcome. As there are no longer any accusations of blame to challenge, any disagreement is irrelevant in UK divorce law.
      How do I respond to a divorce application?
      If your spouse has applied for divorce as a sole applicant, the court will send you (the respondent) a copy of the application by email, along with a follow-up letter. The email will include, the completed divorce application, the Notice of Proceedings, and the Acknowledgment of Service.
      You will need to complete and return the Acknowledgment of Service to the court within 14 days of receipt of the application. To ensure you begin the process smoothly, your divorce solicitor can assist you with completing this document before it’s filed with the court.
      How long does a divorce take?
      On average, a divorce takes six-eight months.
      Within the process, there are two compulsory waiting periods:

      A 20-week cooling-off period after the court has issued the application before the conditional order can be granted.
      A 6-week waiting period until you can apply to the court for a final order.

      Furthermore, a lack of cooperation by one side, complicated financial concerns and/or child arrangements, and delays at divorce centres and family courts can all contribute to the length of a divorce.
      Typically, it takes around a year to end a marriage and get a financial settlement.
      What about any financial issues or child arrangements?
      The process of divorce simply ends the marriage contract. Divorce does not resolve financial matters or child arrangements. These must be resolved separately. We recommend you take legal advice as early as possible to ensure that you achieve a fair outcome.
      To make financial agreements legally binding, you must record them in a consent order that the court must approve.
      How do we reach a financial settlement?
      Ideally you and your ex-spouse will be able to discuss finances and negotiate a settlement between you. We recommend that you seek advice from a family lawyer to ensure that the agreement you reach doesn’t disadvantage you.
      However if you need support with working towards a financial agreement, there are options including solicitor-led negotiation, mediation, collaborative family law or arbitration. Each of these options allow you and your ex-partner to retain control of the outcome and stay out of the family courts.
      However, for some negotiation is not possible and mutual agreements simply cannot be reached. In cases like these you will need to make an application for a financial order to the court. This means a judge will consider all the facts of your case and make a decision on your behalf. Once a decision has been reached, the financial order is legally binding and remains valid unless you or your ex apply to the court for an amendment.
      Clean break order
      If you are divorcing and have no assets to divide, or financial commitments towards each other, you can cut financial ties between you and your ex-spouse by applying for a clean break order. A clean break order is a legally binding financial settlement agreed by both parties that prevents future financial claims against each other, including pensions, inheritance, or windfalls such as lottery wins.
      Do I need legal advice for my divorce?
      It is vital that you get expert legal advice from a family lawyer who will guide you through the divorce process and establish the best course of action for you. By speaking with our experienced family solicitors as early as possible, you can ensure that your interests are safeguarded from the outset.
      Useful links
      A guide to the divorce process
      Where do I start? A beginners guide to divorce
      Can you revisit a clean break order? More

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      What is The Frozen Embryo Law In Texas?

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      Modern reproductive technology has in recent years helped many parents who would have otherwise had difficulty having children. For example, in vitro fertilization is often effective for those who want to be parents but cannot do so through traditional means. The in vitro process involves harvesting mature eggs from the female and fertilizing them in the lab. Thereafter, they are often frozen to be used later. 
      However, a couple may divorce before the frozen eggs are used, and questions arise about what to do with the eggs or who owns them. This is why some Texas courts have addressed the matter recently. Our Dallas divorce lawyers at Orsinger, Nelson, Downing, & Anderson can help with questions about this and other divorce-related issues.
      How Texas Views Frozen Embryos
      Laws about frozen embryos in Texas view the matter from a contractual point of view to decide who owned the frozen eggs before the couple divorced. When a couple decides to freeze embryos, they must sign a contract detailing how the embryos are owned in the event of a divorce. The document must be signed at the fertility center or in front of an attorney.
      Laws in this area stem from a case that eventually made it to a Texas Court of Appeals. It involved a couple who filed for divorce before their frozen embryos were implanted. The contract signed by the couple stated that the embryos had to be thrown out if they divorced. The Court of Appeals ruled that the contract had to be followed; the embryos should be destroyed.
      While this would seem to resolve the issue, there are still uncertainties in specific situations involving frozen embryos today. Depending on the circumstances, Texas legal experts say a court could rule on frozen embryo ownership during a divorce as follows:

      If the couple does not have an agreement that states what happens to the embryos after divorce, the court would not force one person to be a parent if they do not want it.
      If the couple has an agreement and the embryos go to one person, the Court could disregard it so one person is not forced to have children they do not want.
      If they agree that the embryos must be donated to another couple or for scientific research, the court could disregard it with additional conditions so one party is not forced to be a parent when they do not want it.

      Are You Planning To Freeze Embryos?
      If you and your spouse want to freeze embryos for later use, there are steps you can take now to reduce the chances of future disagreements. 
      First, before freezing the embryos talk about all of the possibilities with your partner. For example, talk about who would take possession of the embryos in case of divorce or what you would do with them if that happened. It may not be the most comfortable conversation, but it can avoid future complications by having a frank discussion now.
      Second, check the policies of the fertility clinic you intend to use; different clinics may view this matter in different ways. You may want to choose a different clinic if the policies of one do not meet your expectations.
      Third, talk to an experienced family law or divorce lawyer to help you determine how to handle the frozen embryo ownership. Planning in case of divorce, especially with such a potentially contentious topic, in this area is critical to ensure your rights and wishes are respected.
      Contact Our Dallas Divorce Lawyers Today
      If you have questions about divorce or how the Texas embryo laws affect you during or after a divorce, we understand your concerns. Our Dallas divorce lawyers at Orsinger, Nelson, Downing, & Anderson can help, so call (214) 273-2400.  More

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      No-fault divorce, one year on

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      It’s one year since we welcomed the arrival of no-fault divorce in England and Wales (6th April 2022).
      As the biggest change to divorce law for decades, the advent of the no-fault process transformed divorce, separation, and civil partnership dissolution by removing the legal requirement for blame.
      For the past year, couples have been able to file for divorce without accepting fault or assigning blame to their partner, and without fabricating a reason where they don’t naturally fit into the five previously accepted grounds for divorce.
      No-fault divorce also removed the ability to contest a divorce.
      What was it like to divorce before no-fault divorce?
      Previously, irrespective of the reasons for divorce or the personal circumstances of a couple, there was a legal requirement to attribute blame to only one party, if they wanted to divorce in less than two years.
      The five reasons, or grounds, for divorce included unreasonable behaviour, adultery, separation after two years with consent, separation after 5 years without consent, or desertion.
      Why was no-fault divorce was introduced?
      Having to distil events into one crystallised reason and assign blame to only one party was unproductive for separating couples at best and frequently destroyed what was left of the relationship.
      Instead of conflict and stress, no-fault divorce paved the way for amicable collaboration, easing negotiations and reducing the overall mental health impact of divorce. It means that parties can find a way to move forward while focusing on the important issues, such as children, finances, and property.
      In addition, removing the ability to contest a divorce removed potential barriers for victim-survivors of domestic abuse, and those trapped in controlling relationships.
      Reflections on no-fault divorce one year on
      While no-fault divorce is a step forward that’s hugely benefited some, we must also consider the negative impact it has had on many couples going through the divorce process.
      No-fault divorce has removed the sometimes cathartic and understandable desire to blame. This has left some people frustrated. For example, if one party files for divorce following their partner’s infidelity, there is no longer a formal acknowledgement of their ex-partner’s misconduct or a way to hold them accountable for their actions. Whether divorce is a result of serious and sustained wrongdoing, or simply the result of growing apart, the divorce process is the same.
      Now, with no-fault divorce, it’s not essential to share the reason for the marital breakdown. However, as family lawyers we sometimes see that because this emotional line hasn’t been drawn at the outset, it can muddy the waters later in the divorce journey. Without an official vent, suppressed frustration about the cause of the divorce can occur. For many, tensions start running high later in the proceedings, creating further animosity and lengthier arguments over the practical elements of the divorce, such as dividing up assets and agreeing child arrangements.
      We must remember that most people going through a divorce are looking at matters through an emotional lens, rather than from a purely rational perspective. So, while no-fault divorce has certainly been a welcome change that has helped many couples to separate amicably, there is a flip side that should be acknowledged to help mitigate animosity further down the line.
      Useful links
      No-fault divorce has arrived
      The no-fault divorce process
      A complete guide to no-fault divorce
      How no-fault divorce impacted victims of domestic abuse More

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      UK Surrogacy: proposals for overdue law reform

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      The Law Commission recently published their final recommendations for UK surrogacy law reform, following an extensive project that began in 2018.
      Their proposals seek to modernise UK surrogacy law, and improve support for children, surrogates, and intended parents, whilst ensuring that UK surrogacy remains an altruistic rather than a commercial endeavour. Stowe Partner and surrogacy lawyer, Liza Gatrell, explains more.
      UK Surrogacy: proposals for overdue law reform
      Following a public consultation in 2019, the Law Commission released its recommendations for a comprehensive overhaul of UK surrogacy laws last week. The recommendations include a draft bill that, if approved by Parliament, could become law.
      The use of surrogacy arrangements for family building has increased in recent years but UK laws have not kept pace, rendering them outdated and not fit for purpose. This causes an added layer of complexity and stress to what should be a happy time.
      What is surrogacy?
      Surrogacy is where a woman carries and gives birth to a child for the intended parents. The surrogacy can be traditional, whereby the surrogate also donates her egg, or gestational, where she has no genetic link to the child.
      What is wrong with current surrogacy law?
      Under the current UK surrogacy law, the surrogate will always be the child’s legal parent and if she is married her husband or wife will automatically be the second legal parent. This is the case even if the surrogate has no genetic links to the child. If the surrogate is unmarried then it is possible for one of the intended parents to be the second legal parent. The intended parents must then make an application to court within 6 months of the child’s birth for a parental order, which re-assigns the legal parentage to the intended parents.
      Why is change needed to UK surrogacy law?
      Existing surrogacy laws, which date back to the 1980s, frequently fall short of providing adequate protection for the surrogate or the intended parents. Surrogacy agreements are unenforceable and there is no scrutiny of surrogacy arrangements until after the baby has been born, by which point it is arguably too late. The inability to obtain a pre birth order in the UK leads many intended parents to travel overseas, meaning they are then faced with increased expense, immigrations laws that they must also navigate, and concerns about the exploitation of women and children.
      The UK surrogacy laws have always been altruistic in nature, rather than commercial, and this will continue, but under the proposed changes the intended parents would be recognised as the legal parents from birth (subject to the surrogate’s consent). This is far more in line with the shared intentions that the surrogate and the intended parents have right from the start.
      The new surrogacy pathway
      The reforms will apply to UK arrangements only. Intended parents that travel abroad for their surrogacy arrangement will still need to make an application for a parental order.
      The new pathway will allow the intended parents to be recognised as the legal parents from birth, subject to certain requirements and safeguards being met, these are:

      An agreement between the surrogate and the intended parents
      A preconception assessment of the welfare of the child to be born by the arrangement
      Independent legal advice for the intended parents and the surrogate
      Implications counselling to be undertaken by the intended parents and the surrogate
      Medical screening for the intended parents and the surrogate
      Enhanced criminal record checks
      Agreement of a Regulated Surrogacy Organisation to permit the arrangement onto the new pathway

      There is also suggested reform to the payments that can be made to surrogates to clarify what constitutes a “reasonable expense”, which will provide much needed clarity.
      Authorised payments will be:

      Costs related to the decision to enter an agreement

      Unauthorised payments will be:

      General living expenses

      The surrogacy reforms will see the creation of regulated bodies, called Regulated Surrogacy Organisations (RSOs), non-profit organisations governed by the Human Fertilisation and Embryology Authority (HFEA). They will oversee agreements under the new pathway and provide support to surrogates and intended parents.
      Reforms to the parental order process
      Parental orders will still be needed for international arrangements, but some reforms to the process have been recommended. One reform is to enable a parental order to be made without the consent of the surrogate where the welfare of the child required it.
      It is also recommended that the surrogate’s spouse should not be a legal parent and so their consent will not be required for parental order to be granted.
      A new surrogacy register
      A new register would be created to allow anyone born through surrogacy to access information about their origins. Children born via surrogacy in England and Wales will be able to access non identifying information at age 16 and identifying information from age 18. In Scotland both would be from age 16.

      These reforms do not go as far as some would have liked, but they do mean that UK surrogacy agreements will be better supported and regulated, which is welcome news. It is now for the Government to consider these recommendations. Watch this space.
      Useful links
      Why we need surrogacy law reform
      International surrogacy – what you need to know
      UK surrogacy law FAQs
      A focus on surrogate consent and parental orders
      Stowe talks: Surrogacy in the UK More

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      Mandatory mediation: what it could mean for divorcing couples

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      Last week the UK Gov announced plans to introduce mandatory mediation for separating or divorcing couples.
      This family justice system reform will make mediation mandatory in all appropriate family court cases. Under the proposals, divorcing or separating couples will be required to try to resolve child arrangements (custody) and financial arrangements through qualified mediation, with court action reserved as a last resort.
      It is hoped that by assisting families to avoid court, backlogs will be reduced, allowing the family courts to focus on cases that require their protection the most.
      Here, Stowe Senior Associate Filomena Sterkaj explains more.
      What are the UK Gov’s mediation reform proposals?
      The government’s new mediation reform plans aim to divert more family disputes away from our overburdened and backlogged family courts. Proposals call for mediation to be made mandatory in all suitable low-level family court cases, with the exception of those involving allegations or a history of domestic violence or concerns of child safeguarding.
      The proposals aim to achieve multiple objectives:

      Lowering demand within the family court system; freeing up resources to ensure that urgent cases are heard more quickly and reducing backlogs
      Protecting children from the negative consequences of seeing their parents resolve family law disputes in court, a process that is frequently fraught with conflict.

      Secretary of State for Justice Dominic Raab MP said “When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life.”
      If the proposal goes ahead, it is estimated that faster hearings and resolutions could benefit 36,000 vulnerable families each year.
      So how will mediation plans work?
      Under the proposed plans, separating couples will have to try to reach an agreement on their child and financial arrangements through a qualified mediator, reserving court action for complex issues or cases which have not been resolved via mediation.
      It has been suggested that Courts could impose costs orders to hold people accountable if they do not make a ‘reasonable attempt’ to mediate.
      In addition, the government’s Family Mediation Voucher Scheme will be extended until April 2025 backed by an additional £15 million in funding. The scheme provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation and has so far supported over 15,300 families.
      It has been reported that the voucher scheme has been beneficial for separating couples and their children. With further reports that an analysis of the first 7,200 users of the scheme shows 69% of participants have reached whole or partial agreements away from court.
      What is mediation?
      Mediation is a process in which couples work together to resolve their differences. Currently a voluntary alternative dispute resolution (ADR) option to assist families with overcoming disagreements, mediation typically minimises lengthy and acrimonious conflict, helping couples to maintain a constructive relationship – beneficial for both separated parents and their children.
      Mediation is conducted by a trained and accredited mediator who serves as an intermediary, rather than providing legal advice. Mediation can play a vital role in helping separating couples achieve positive outcomes, protecting children from disputes, as well as reducing the burden on the courts.
      Concerns about the mediation reform proposals
      However, the mediation reforms have raised some concerns.
      Firstly, the definition of ‘low-level cases’ and the process by which they will be assessed, are unclear. Furthermore, there are concerns that people will make false allegations against their partners in order to avoid mediation altogether. Equally, in cases where abuse or coercive control are unknown factors, victim-survivors may be coerced into participating, thereby empowering their abuser.
      The Law Society president Lubna Shuja said: ‘The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.’
      Women’s Aid has said clarity is “urgently needed” to understand how the Ministry of Justice will ensure all domestic abuse survivors will be kept safe and allegations will be properly investigated.
      The proposals are subject to a government consultation which will run for 12 weeks, closing on 15 June 2023.
      Useful links
      Stowe Support – Mediation More

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      Law raising age of marriage to 18 comes into force

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      Newcastle-based Stowe Partner, Nicky Hunter, explains the overdue changes to marriage law in England and Wales, including the new criminal offenses and the reasons why the law has changed after almost 75 years.
      Law raising age of marriage to 18 comes into force in England and Wales
      Today marks a historic day in the safeguarding of children and young people, as the new law raising the minimum age someone can legally marry to 18 has come into force today in England and Wales, having received royal assent last April.
      The Marriage and Civil Partnership (Minimum Age) Act 2022 has finally ended the archaic law in England and Wales that has allowed children aged 16 and 17 to be married, with the consent of their parents, even though they are legally considered to be children.
      Why has the marriage law changed? 
      The Marriage Act 1949, which was in place up until today, legitimised child marriage in England and Wales. The mechanism of parental consent which existed under this law, whilst originally intended to be a safeguard against child marriage has, in reality, proved in many cases to be a vehicle for parental abuse.
      Campaigners have long argued that the existing law has allowed children between the ages of 16-18 to be coerced into marriage without their consent and against their best interests, pointing to many cases where young people have been subjected to domestic abuse, some suffering lifelong harms, as well as losing opportunities for education, employments and personal growth and independence.
      By raising the minimum legal age of marriage to 18, the UK is finally stepping out of the environment which allows parents to force their children to marry.
      The full scope of the new marriage law
      The new law has made it an offence for a person to aid, abet or encourage any child under 18 to enter into any form of marriage. Furthermore, it will make it a criminal offence for a responsible person, i.e. a parent or guardian, to fail to protect a child from entering into any form of marriage. The law applies to religious and cultural marriages, as well as those registered with the local authority.
      These offences will now be punishable by up to seven years in prison.
      This is a powerful move that will work to safeguard young people and prevent parents or guardians from abusing their positions as responsible adults and forcing children into underage marriages.
      Child marriage, a global issue
      In 2016, UNICEF and the UN population fund launched a joint initiative to tackle the problem of child marriage globally. Whilst funding has been forthcoming from the UK, the law which allowed child marriage in our own country has not been addressed until recently.
      With the implementation of the new law, Parliament is finally living up to its international obligations to stop underage marriage and remove the inconsistencies in its approach to tackling it as a global issue.
      This is a truly positive step in the right direction, and we hope to see more action taken to protect the future of young people, particularly girls, in England and Wales. However, it is important to note that the minimum age of marriage remains 16 in Scotland and Northern Ireland and in Northern Ireland parental consent is required under the age of 18, but not in Scotland. More

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      Transparency Pilot in the Family Courts – What You Need to Know

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      Taking a family dispute to court is an inherently stressful experience. When you factor in the wide scope a court has in making decisions for you and your family, combined with the perceived secrecy of the family courts, it can be an uncertain time for all.
      With the lack of transparency and accountability both long-term concerns of the existing system, there are major changes planned for UK family court proceedings.
      This guide will take you through the changes being piloted in what is known as the Transparency Pilot.
      The family courts
      Unlike the criminal courts, which are open for the public to access and frequently reported on, going through family court is a private and confidential process. Because of this, many members of the public know very little about family law proceedings. Often, their only exposure to the family court system is television programmes like Judge Rinder, and US-style televised litigation (think Amber Heard vs Jonny Depp or the OJ Simpson trial).
      Until now, journalists, bloggers and reporters have not been allowed in family proceedings (with some rare exceptions and the judge’s permission) and the information shared within family court cases is private. You could even go to prison, or be fined, for sharing information about proceedings, even your own case.
      For years, it’s been debated whether there should be more transparency in the family courts. Contributing to the slow pace of change is the tension between two major factors: the need to boost public trust in the family court and the need to maintain confidentiality and privacy for those who use the family court to resolve family disputes.
      What is the Transparency Pilot?
      The Transparency Pilot is UK government-initiated scheme launched in Leeds, Cardiff and Carlisle on 30th January 2023. It aims to allow ‘pilot reporters’, including accredited journalists and legal bloggers, to report on cases heard in the family court, subject to strict rules of anonymity.
      Reporters’ access is being tested to ensure that it can be done safely and with minimal disruption to those involved in the cases and the courts.
      Under the new rules, a judge will set out what can and cannot be reported by making a “transparency order” which allows for the following:

      Journalists, reporters and bloggers can come into family court hearings, watch the hearing and then report what happens;
      Journalists, reporters and bloggers can look at certain documents from the case;
      You can talk to journalists, reporters and bloggers about your own case;

      The cases will still be anonymised. No one is allowed to name or take photos of the mums, dads, husbands and wives or their children. Although it may be possible for you to recognise your case based on specific details (particularly in the local press) crucially, the aim is to make sure that others cannot identify your case by any of the facts reported.
      Under the pilot, who can attend and what can they see?
      The only people allowed access to report on your case are journalists with a UK Press Card, or a lawyer who is not involved in the case but is authorised to attend hearings just like a journalist (also called a legal blogger).
      This prevents any member of the public or person with an interest in your case coming to your hearings under the guise of being a journalist.
      The journalists can only see the basic case documents, which explain what the case is about and what the parties’ positions are – if they want to see anything else, such as a report from a social worker or a report into your pension then they must ask the judge for specific permission.
      What if I don’t want my case to be reported?
      Firstly, do not panic. For the time being this trial is taking place in just three courts – and not every case in those courts will be reported on – the judge will decide in each case whether it is a suitable case for journalist access to be allowed.
      If the judge decides that it is, but you would like it to remain private, you can request that the transparency order be changed.
      The judge will balance the things that you are worried about against the overall aim of the pilot – to make the family court a more open and understood system – and then decide whether the reporting can continue.
      And remember, no matter what the judge orders, you don’t have to speak to a reporter unless you want to.
      Why is the Transparency Pilot happening?
      There are multiple reasons, but fundamentally the overall aim is to improve the courts and make law fairer for everyone.
      In the world of law, the usual cases that get reported are typically ones that reach the higher courts – complex divorce cases with millions (or billions) in assets, international children cases and ‘high profile’ celebrities.
      This means that the everyday judgements are not open to public scrutiny, therefore patterns of decisions and perceived biases cannot be seen and the risk of a miscarriage of justice increases.
      Over time the hope is this will change. With enough reporting of everyday decisions the expectations of the court will be better understood and both the judges, and the courts will be held accountable for the procedural issues.
      What do the lawyers think of the transparency pilot?
      Every solicitor is different, but the overarching feeling is that this is a long overdue change. We spoke Leeds-based Stowe family lawyer, Jake Mitchell, one of our solicitors working within the pilot, to ask his thoughts:
      Q. What can a parent or spouse going through the family court at Leeds expect to change?
      JM. Very little. Considering the number of cases that go through the courts each day, chances are that an individual’s case won’t be reported on in any event. However, if they do, then they should expect to receive the same respect and confidentiality they would have received before the pilot. The reporters and legal bloggers that are allowed into hearings will not have any impact on your case, and they should be well versed in the law (perhaps lawyers themselves) so one would hope their subsequent reporting should be accurate.
      Q. What can a parent or spouse do if they don’t want to be reported on?
      JM. Tell their solicitor and ask for the judge to be made aware. If you think that your ability to go through proceedings will be impaired by the presence of a reporter then the judge may well decide that your case can be excused from the pilot.
      Q. What do you expect to see change in the long term?
      JM. With common issues such as when a mother is moving home and wants to change her son’s school, or when a father wants to take his daughter to on holiday but the mother says no, there is little to no precedent to go on.
      If the pilot goes well and reports on these everyday disputes become better understood, it will help mums and dads, husbands and wives in knowing what to expect.
      It may also encourage compromise and co-parenting outside of the court – if you already have a good idea what is going to happen, then you may be minded to think about settling early without the need to attend court. More

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      A focus on surrogate consent and parental orders

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      Stowe family lawyer Tamara Adams explores potential complications in surrogacy cases and asks do surrogates need to give consent for a parental order to be made in the UK, and how should that consent be given?
      What is a Parental Order?
      A Parental Order is an order obtained by the court post birth which makes the intended parents of the child the legal parents and permanently extinguishes the legal status and responsibilities of the surrogate and, if applicable, their spouse.
      After a Parental Order has been made, a UK Birth Certificate will be issued recording the intended parents as the legal parents. This replaces the original birth certificate.
      To obtain a parental order, the intended parents must satisfy the family court that they meet all the criteria set out in Section 54 (for couples) and Section 54A (for single parents) of the Human Fertilisation and Embryology Act 2008. These are:

      There must be a genetic link to the child with at least one of the intended parents
      The application can be made by an individual, or a couple who are married, in a civil partnership or enduring relationship
      An application must be made within 6 months of birth
      The surrogate and their spouse must freely consent to the order being made. This consent cannot be given within 6 weeks of the child’s birth
      The Applicant(s) must be domiciled in the UK
      The child must be living with the applicant(s) at the time of the application; and
      The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred or authorised by the court) has been given or received by either of the applicants for, or in consideration of, the surrogacy arrangement

      A question of surrogate consent
      Many of the Parental Order requirements have needed judicial clarification. Most recently in Re C (Surrogacy: Consent) [2023] EWCA Civ 16 whereby the Court of Appeal provided essential guidance on the requirement for consent from the surrogate.
      Within this case, the surrogate provided consent to a Parental Order being made on the basis the Court also made a Child Arrangement Order to allow for the surrogate to spend time with the child.
      In August 2021, a Parental Order was made alongside a child arrangement order for regular contact between the surrogate and the child. The surrogate then sought to appeal on the basis she had not provided free and unconditional consent. As a result, she sought for the Parental Order to be set aside.
      The intended parents argued that the necessary consent was given, but if that is not so, they contended that irrespective, the parental order should be left in place and section 54(6) of the Human Fertilisation and Embryology Act 2008 can be read in a way as to confer a dispensing power upon the court.
      The case background

      A surrogacy agreement was signed prior to insemination
      The surrogate was pregnant and then, the relationship between the parties deteriorated
      The child was born, and the surrogate received postnatal counselling
      The intended parents then applied for a parental order but the surrogate returned the form of acknowledgement stating she did not consent to the making of the order and opposed the application
      The surrogate then provided consent orally in court on the basis that a child arrangements order was made providing for her to have monthly contact and a prohibited steps order to prevent the intended parents from moving without her written agreement
      The court in the first instance then proceeded to make a parental order and a child arrangement order. The next day, the surrogate then made contact with the intended parent’s legal team to express she felt under pressure to consent to the order
      The contact order begun, and contact took place over time. However, one scheduled contact did not take place. The intended parents then applied to discharge the terms of the contact order and they did not permit contact thereafter
      The surrogate then sought permission to appeal the parental order
      The appeal was on the basis of two grounds:

      The court was wrong to make a parental order when it was clear the surrogate’s consent was being given conditional on the making of a child arrangement order and therefore not “unconditionally”; and
      The Court was wrong to make a parental order when the consent provided by the surrogate was not provided “freely”.

      Court of Appeal decision
      The Court of Appeal considered the wording of Section 54(6) of the Human Fertilisation and Embryology Act 2008 and expressed the right of the surrogate not to provide consent is a pillar of the legislation.
      The Court confirmed that if there is any doubt about consent, it will be a matter for the Court to judge, considering all circumstances.
      The court confirmed that consent should be in writing. Even then, consent can be withdrawn at any stage before the order is made. This formality is not mandatory but, in its absence, should put the court on its guard to ensure the proffered consent is valid.
      In this case, the consent was given orally in a face-to-face court hearing and as such, any stated consent was devalued due to the possibility the court process might in itself be exerting pressure on the surrogate.
      The court therefore determined that the European Convention on Human Rights do not require a Parental Order which was made without valid consent from the surrogate.
      The court determined that the rights of the intended parents and child are not violated by the setting aside of the order for lack of consent on the part of the surrogate. As a result, the Court of Appeal dismissed the Respondents application for a Parental Order. The appeal was therefore allowed. The Court confirmed the child should be brought up by the intended parents and have contact with the surrogate as was intended by all.
      It therefore remained agreed for this to take place but the Court of Appeal did not have the power to make such an order as was beyond the scope of the appeal.
      All in all, this case is pivotal in reiterating the importance of obtaining the surrogates free and unconditional consent to a parental order and reiterated the importance of this consent to be provided in writing.
      Useful links:
      UK surrogacy law FAQs
      International surrogacy – what you need to know
      Stowe talks: Surrogacy in the UK with My Surrogacy Journey
      Guide: Surrogacy and Parental Orders
      Why we need surrogacy law reform More