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    Family Law in 2024

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    As we come to the end of another year, our lawyers reflect on some of the changes (or lack of!) in family law in 2024, and the impact on people going through family law issues.
    Julian Hawkhead, Senior Partner
    Can it really be a year since I last wrote an introduction to the Stowe Family Law end of year blog? In many respects, time has flown by so quickly, but sadly, as my colleagues discuss in the following articles, where the need for reform in key areas of family law is concerned, progress is not as fast.
    Firstly a few words about Stowe Family Law. It has been quite a year for the firm as we continue increase our capability to support more people as they require family law services increasing the number of specialist lawyers across more locations nationwide. Throughout 2024 we opened more offices taking our total number of locations to 94 and we now have 205 specialist family lawyers. We also said goodbye to Livingbridge as our former partners with whom we have achieved so much over the last 7 years and we welcomed our new partners Investcorp to support us through the next exciting chapter. We have some really exciting plans so watch this space!
    With a new Labour Government in place, now is the time to prioritise a legal system that is there to protect the vulnerable and is readily accessible to those in need. It is an essential foundation for a stable and safe society.
    In other areas of the family law world, we have seen an increased impetus to keep couples out of the court system and encourage them to adopt alternative routes to reaching a resolution whether that is mediation or other forms of dispute resolution. The rules that have been introduced feel more stick (through costs sanctions) than carrot but there is no doubt that a resolution reached consensually is longer lasting and less damaging to all parties.
    The need for rights for couples living together without a legal marriage or civil partnership continues to be an area of focus for family law professionals, although there seems to be diminishing hope that the Government will prioritise reform here. A clear legal framework is necessary to define what happens when cohabiting relationships end is much needed.
    I hope you enjoy reading these short articles written by my colleagues and may I take this opportunity to wish you a very happy Christmas season and a healthy and prosperous 2025.
    Tamara Adams on development in fertility law
    This year has not seen as much progress in fertility law as we, as family law professionals, would have hoped. However, some steps have been taken with the amendment to the Human Fertilisation and Embryology Act 1990. Previously female same-sex couples had to undergo screening for infectious diseases such as hepatitis B, C and rubella which could cost up to £1000 and was prohibitive for many. As of November this year, the screening requirements for same-sex couples are on par with those for heterosexual couples as these requirements have been relaxed. In addition, same-sex couples where one or both partners have an undetectable viral load for HIV will be allowed to pursue IVF treatment.
    The ONS reported that women had an average of 1.44 children between 2022-23, the lowest recorded birth rates. Several reasons have been touted for this drop, including the impact of Covid-19, and social changes with women delaying having children to pursue a career. In this context, there is a need for change in fertility laws to make various methods of alternative journeys to parenthood more accessible and the legal process frictionless.
    Unfortunately, we are still awaiting key changes in surrogacy laws which many family law professionals hope to see. The complexities of legal parenthood being assigned to the birth mother, rather than the intended parents, followed by a lengthy process of transferring parenthood, is complicated, costly and stressful, and can be a deterrent. Recently, Baroness Meron met with the Law Commission to discuss the recommendations made in the Commission’s report which was released in March 2023. It is hoped that the Government will release a response soon, putting surrogacy on the agenda.
    I hope to see more change in 2025, particularly in surrogacy, to protect intended parents and make their journey to parenthood a joyful one.

    Ciara Pugh on the need for cohabitation rights
    Taking the media by storm this year was the fall in marriage rates, as reported by ONS, with rates falling to 49.4%, the first time they have dropped below 50%. Although same-sex marriages increased, and there were an estimated 167,000 people in same-sex marriages in 2022, overall marriage seems to be being replaced by couples choosing to live together as cohabitees.
    The fall in marriage rates reflects a changing society, and the need for the law to maintain pace with shifting priorities and family structures. There are a variety of reasons that could be attributed to the decline. For example, these ONS figures are from 2022, where the impact of the Covid pandemic was still being felt on the wedding industry. Nevertheless, the way we view marriage and relationships is constantly changing, and couples are either delaying or rejecting marriage entirely.
    What this does mean is more people are choosing to live together as cohabitees rather than getting married. Although cohabitation is the fastest growing family type in the UK, as it stands there is little to no financial protection for cohabitees should the couple break up or one party die without leaving a Will. This is the case regardless of length of time living together, or if the couple shares children (though there are some financial claims that can be brought for the benefit of children).
    Family lawyers have been campaigning for cohabitation reform for years. In October 2023, a glimmer of hope appeared in the form of Labour MP Emily Thornberry’s promise to make cohabitation a priority should the Labour Party take hold of Government. Disappointingly, such a reform has failed to land on the Government’s agenda as yet, leaving many individuals vulnerable should their relationship end.
    However, the fall in marriage rates has renewed calls for cohabitation reform. I hope that in the not-too-distant future, there will be financial protection for cohabitees. This could be in the form of an opt-in or opt-out system where couples choose whether they wish to have rights. These are unlikely to be the same as those afforded to married couples, but financial protection is needed to protect vulnerable individuals. Our new Labour Government is confronted with an exciting opportunity to finally reform this highly problematic area of family law and let’s hope we see some change!

    Rachael Lodge on the drive to avoid court
    The Family Justice System has been working hard over the past few years to reduce acrimony in divorce and family proceedings, and to ensure families going through relationship breakdowns have the best chance at setting themselves up for a more positive future. This is all within the context of a struggling court system which is underfunded and over-stretched.
    As such, one of the most significant changes in 2024 was an update to the Family Procedure Rules. These are a set of rules followed by courts nationwide which govern practice and standardise court procedures. In April of this year, the rules were updated to place a greater focus on reaching amicable agreements, using non-court dispute resolutions (NCDR) such as mediation, collaborative family law and arbitration.
    The main changes are a wider definition of what NCDR means, broadening the scope beyond just mediation, and including methods such as arbitration, collaborative divorce and private financial dispute resolution hearings.
    Divorcing couples will now need to actively engage in NCDR, or provide a valid reason why this is not possible by laying out their views in open correspondence. Parties now have to express why NCDR is inappropriate in their case using the new FM5 form (for example, due to safeguarding concerns), where before this was simply a tick box exercise. The exemptions for not taking part in NCDR are more limited, and failure to engage may result in cost sanctions. We have already seen this acted on by Judges in several cases in the latter half of the year.
    Although courts could previously adjourn proceedings where Judges felt NCDR would be appropriate, they can now do this without the agreement of the parties.

    The hope is that moving forward, parties family law issues will be able to find constructive ways to resolve differences instead of using the courts. This will not only give the family courts more breathing room but will mean families can build a better post-separation future. The Ministry of Justice is undertaking a wider push to support families by ensuring they are aware of all the options available to them and supported throughout.
    Emily Davies on the Pathfinder Pilot
    The Pathfinder Pilot was initially introduced in March 2022, launched in a small number of family courts, to trial improved information sharing between services like local authorities with the courts. The pilot was a response to a review into the Family Justice System that highlighted how the adversarial nature of family courts and the system itself worsened conflict and further traumatised domestic abuse victims and children. Almost three years later, now is a great opportunity to reflect on the change and development in the pilot itself, and the impact it has had on families.
    The pilot model requires detailed investigations to be conducted by Cafcass – the independent body advising family courts what is safe for, and in the best interests of, the children. Cafcass will prepare a Child Impact report, where they have an opportunity to hear from the child/children before the first hearing to better understand their worries, wishes and feelings, and to evaluate the potential impact of the ongoing family law proceedings, on the child/children involved. Cafcass also investigates any welfare issues, allegations of domestic abuse, and identifies whether non-court dispute resolution would be appropriate. The pilot aims to ensure that children of separating parents are listened to throughout the process, and are given more opportunities to express themselves, as well as improve the experience of survivors of domestic abuse.
    Furthermore, the Pathfinder scheme is working to minimise the trauma domestic abuse victims (and their children) experience going through the justice system when separating from their abusive partner. The improved information sharing through the holistic multi-agency approach and early onset information gathering, means victims do not have to be re-traumatised by telling their story multiple times.
    February 2024 saw the end of the initial phase of the pilot, and it was then rolled out to two further locations, Birmingham, and South-East Wales, ahead of a planned national rollout. Although the national rollout has yet to be confirmed, the progress made by the initial phases of the pilot have been positive. The change in process is being carefully monitored by legal professionals, as well as policymakers and Cafcass.
    At present, it is apparent that a national rollout is not yet on the cards. However, I hope a review into the pilot will be produced in 2025, looking ahead to a nationwide implementation as the family justice system moves towards less adversarial, non-court-based approaches.
    Read more about the Pathfinder Pilot.
     Jake Mitchell on AI and Family Law
    Technology is evolving, and in 2024 we have felt its impact in the legal world. Some of the fastest moving tech is the use of Artificial Intelligent (AI) and its usage in family law.
    AI is not robots, but computer simulation. In law, language models like ChatGPT have an enormous amount of data, phrases and sentences plugged in to predict “what comes next?” in a sentence, forming complex answers. AI can answer questions, but you should take care it is not always accurate. You may have noticed Google’s new AI Overview, which takes a question you’ve searched, and pulls information from various top performing sites to give you a quick answer without needing to click on a particular website. This is helpful to an extent but should not be taken as ‘gospel’ as if the source AI takes from is wrong, so is the answer.
    In family law, AI can be used to make our processes more efficient, saving the lawyer time and saving client money. AI can answer questions outside of office hours, check your documentation for spelling/grammar errors, summarise documents and even take a first-draft note of meetings. It can summarise long documents and organise your thoughts and papers. AI can also help with legal research, but beware, in the US there have been instances of AI entirely inventing cases.
    This is likely only the beginning of some more impressive changes. However, as the technology grows we need to be ever more mindful of the pitfalls. Errors are common, answers not always correct, and oversight of activity is very important. AI won’t replace everything your lawyer can do, and family law involves supporting people going through deeply personal, emotional issues, where empathy and understanding is required. AI cannot replace this, but it can be part of the team.
    Sarah Scriven on Domestic Abuse Protection Notice Pilot
    On 27th November 2024, domestic abuse protection notices (DAPN) and domestic abuse protection orders (DAPO) were introduced by way of a pilot scheme, expected to last one year. It is hoped that these measures will provide better protection to victims of domestic abuse.
    The pilot is taking place in certain areas: London boroughs of Croydon, Sutton and Bromley and Greater Manchester. The perpetrator must live in one of these areas.  The British Transport Police are also able to apply for DAPOs.
    A Domestic Abuse Protection Notice (DAPN) is issued by police to a perpetrator to provide immediate protection for victims of all forms of domestic abuse, even where there is not enough evidence for a criminal charge. The perpetrator and victim must be personally connected. The police must consider that there are reasonable grounds to believe that a person has been abusive to the other person. The DAPN contains specific instructions to the perpetrator, for example not to attend the victim’s home. If the instructions aren’t followed, the perpetrator could be arrested. If the police issue a DAPN, they will also apply for a DAPO.
    A DAPO can also be made by the court to protect victims from all forms of domestic abuse. This order may be made by the court during ongoing criminal family or civil proceedings.  Applications may be made by the police, a victim or by someone not directly involved known as a third party, for example a friend, family member or social workers. Breaching a DAPO is a criminal offence.
    Prior to the pilot, the police could issue domestic violence protection orders, but these only last for 48 hours. A victim could make an application to the family court for a non-molestation and/or occupation order and in the criminal court, a restraining order could be made.
    The introduction of the DAPN and DAPO give victims, but also organisations such as the police and social workers and third parties such as a friend and family an avenue to use to seek protection and it will no longer be down to the victim to make the relevant application themselves.
    A DAPO has no maximum duration, and the court will consider how long it needs to last to protect the victim. A non-molestation will usually last for between 6 to 12 months but can last longer in exceptional circumstances.
    If the pilot is successful, DAPNs and DAPOs are expected to replace domestic violence protection orders. It is hoped they will give police a tool that is more effective and provides longer term protection to victims.
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    Final Word
    I hope you have found this wide array of topics interesting and should you want to find out more about any of the topics we have covered here or any other family law issues please do not hesitate to get in touch.
    With best wishes for the festive season,
    Julian Hawkhead More

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      in Family Law

      Platonic Co-Parenting – Can I really have a baby with my friend?

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      In recent months, the idea of platonic co-parenting has gained traction. A recent article in The Guardian on the topic was written by a woman who, after much back and forth, decided to have a baby with her gay best friend. The friends were both happily single, but wanted a child and were concerned about the social and financial implications of raising a child as a single parent.
      Platonic co-parenting can take a variety of different forms and can be entered into for a whole host of different reasons. It can be between an opposite sex ‘couple’, same sex, or even as three parents where the couple are unable to have children so bring in a friend who not only can be a donor but can be present as another parental figure.
      In essence, platonic co-parenting is when a child is raised by two or more people who are not, and have not in the past been, in a romantic relationship (although there may be a romantically involved same-sex couple as part of a three+ parental group). The child might be conceived by treatments like IVF, intracervical insemination (ICI) or intrauterine insemination (IUI). The prospective parents may choose to go down the surrogacy route or adopt a child.
      What does platonic co-parenting look like?
      Platonic co-parenting looks different for every set of parents. The reasons behind platonic co-parenting are as varied as how it can look in practise, but some reasons might be:

      Two happily single individuals each want to have a baby,
      Financial constraints mean an individual cannot afford to be a single parent,
      A same-sex couple want to have a child with a donor and the donor wants a relationship with the child.

      With any number of reasons for wanting to platonically co-parent, how it can look practically is unique to the situation. However, by definition, platonic co-parenting means that each parent is involved in the upbringing of the child, whether they are biologically connected or not.
      Each set of parents will need to come to an agreement about how conception will work, and what the practicalities will be once the baby is born. For example, for the woman and her gay best friend mentioned above, they came to an agreement that they would try ICI first to get pregnant, and then IVF. They discussed finances and decided on a 50/50 split, potential baby names, the baby’s surname and where the child, and the parents, would live (for the first year the father would move in with the mother and baby).
      In some cases, there are more than two parents. The law only recognises two legal parents; however, platonic co-parenting opens up opportunities for more communal parenting responsibility.
      In some cases, a same-sex couple may ask a close friend to be a donor, or a surrogate mother, and this friend becomes part of the family. In other examples, a gay couple and a lesbian couple might ‘join forces’ to have a four-parent family.
      There are also matchmaking apps now that allow prospective parents to meet each other or meet sperm donors.
      Is it legal/How can I make it legal?
      Platonic co-parenting is entirely legal.
      Complications can arise with the difficulties in law around parental responsibility and each platonic co-parenting relationship will be unique. However, if a parent wants to have legal guardianship of a child, this must be registered.
      For example, if a heterosexual ‘couple’ have a child together, the father can be officially recognised as the child’s legal parent by being named on the birth certificate.
      The law only allows for two legal parents, so where a group of co-parents want to raise a child, only two can be recognised as such. The woman who carries the child will automatically be recognised as the child’s legal parent. However, the law allows for more than two people to have parental responsibility, for example as step-parents, or grandparents.
      For families where there are more than two parents, it is important to consider what other arrangements and agreements you may need to put in place to grant parental responsibility over the child. This can be done through a ‘parental responsibility agreement’.
      More legal information around platonic co-parenting can be found here.
      What are the benefits of platonic co-parenting?
      There are a variety of benefits of platonic co-parenting, and these do depend on your unique situation. However, here are a few:

      It allows happily single individuals to become parents without the pressure of solo parenting,
      Sperm donors can have a more active role in the child’s life,
      Potentially more people with parental responsibility – this can mean more support and love for the child,
      It is another way for the LGBTQIA+ community to become parents without requiring romantic relationships with the opposite sex.

      Are there any downsides?
      As with parenting generally, there can be conflict in co-parenting relationships, which is why it is important to discuss legal, social, environmental, and physical factors before embarking on the journey. These can be made into a Co-Parenting Agreement, more widely known as a Parenting Plan, which, whilst not legally binding, help define the expectations of each parent and what agreements have been made.
      Communication is key in all parenting and the more open and transparent you are with your other co-parents, the better. It is important to get all your thoughts out on the table and discuss what compromises may need to be reached.
      The law can be complicated in areas such as surrogacy, and fertility treatments, so you might need to seek legal advice around these matters, and around seeking parental responsibility.
      If disagreements do arise, mediation can often help resolve difficulties and help co-parents reach amicable solutions.
      Useful Links
      What is platonic co-parenting?
      Surrogacy and parental orders
      Travelling abroad with different surnames
      What is parental responsibility?

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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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      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

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      Routes to single parenthood explained

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      Single parenthood
      For so many people, becoming a parent is not easy, whether it’s because they’re in a same-sex relationship, have had alternative priorities until now, or have experienced fertility challenges. But what if you are single, and either haven’t found a partner yet, or you have made the decision to become a solo parent? Happily there are alternative routes to parenting. In fact, it is becoming increasingly common for people who haven’t had children yet, and are single in their 30s and 40’s, to seek alternative routes to parenthood.
      So, what are your options if you want to become a parent while single? Liza Gatrell, Senior Solicitor at Stowe Family Law explains more.
      Adoption
      One route to parenthood for single parents is adoption. You can apply for adoption as a single man or woman. The eligibility criteria for adoption in the UK is quite broad. You can apply to adopt in the UK if:

      You are over 21 (there is no upper age limit)
      You have not have been convicted of any “specified offences”, which are offences against children and sexual offences
      You must have a fixed and permanent home in the UK and have lived in the UK for at least 1 year before you begin the application process.

      Your suitability also needs to be approved by an adoption agency. This means that a range of factors will be considered when establishing your eligibility for adoption, such as your age and health – agencies will expect you to have the health and vitality to see children through to independence, support network, religion, financial circumstances and ethnic background.
      Surrogacy
      Since the 3rd January 2019 a change in the law has meant that parental orders can be applied for by single parents. A parental order gives legal parenthood to the intended parents of a surrogate child and extinguishes the parental status of the surrogate. For a single intended parent to be able to apply for a parental order it is a requirement that they are the child’s biological parent, which inevitably will exclude some people.
      For single intended dads, if your surrogate is married then under current law her spouse or civil partner will automatically be recognised as the child’s second legal parent and you cannot be named on the initial birth certificate. If your surrogate is not married, then you can be the second legal parent and immediately be named on the birth certificate. Either way you will still need to make a parental order application to extinguish the surrogate’s parental status.
      For single intended mums, the surrogate will always be the child’s legal parent at birth, even if you are the biological mother and named on a foreign birth certificate. The biological father will also be the legal father if no Human Fetilisation & Embryology Authority (HFEA) clinic forms are signed.  If a HFEA clinic is used, and the surrogate is not married/ does not have a civil partner, then the intended mother can be nominated as the other parent by using specific forms.
      Donor Conception
      Whilst this isn’t an option for everyone, many single women turn to sperm donors each year to make parenthood a reality.
      In the UK sperm (and egg) donation services are provided by HFEA regulated fertility clinics, but there are also donor-matching websites, and some people do make their own arrangements.
      If you use a HFEA clinic then donors will be screened, donors can only be paid for their expenses, each donor can donate to no more than 10 families, donors and parents must be offered counselling and the donor can withdraw their consent up to the point they are transferred into someone else’s body.
      An important difference between using a HFEA clinic and a private arrangement, is the legal status of the donor. If a HFEA clinic is used, then the donor has no legal rights towards the child. Information is kept on record and anyone over the age of 16 can ask the HFEA whether they were conceived with donor eggs or sperm at a clinic in the UK after 1991 and request any non-identifying information held. Some donor-conceived people can also ask for identifying information about their donor once they are 18. This will apply to all conceptions from the 1st April 2006.
      If you choose to use a known donor then it is advisable to have a pre-conception agreement drawn up. This allows you to have very open and honest discussions and set expectations before conception takes place. Most disputes are born from mismatched expectations. Whilst such an agreement is not legally enforceable, they set out clearly what the intentions were and can carry weight in court.
      If you use a known sperm donor, and don’t go through a HFEA clinic, then the law will dictate who the legal parents will be. The birth mother is always the legal mother and must be registered on the birth certificate, the other legal parent is either their spouse/ civil partner or possibly the biological father. As a single mother using known donor sperm, you will need to decide whether to register the second legal parent on the birth certificate, which means that they would then share parental responsibility automatically.
      Co-parenting partnerships
      If the idea of being a single parent is not for you, then a co-parenting partnership could be the answer. Instead of becoming single parents by choice, this growing trend means that singles meet online with the sole objective of raising a child together platonically.
      There are a variety of websites, such as Modamily and Co-Parent Match, which assist those who are ready to become a parent but either don’t want to use sperm banks or are looking for someone to co-parent with.
      You may know a choose to enter into such an arrangement with a friend. If you are considering going down this route then I recommend that you do your homework, especially if your co-parent is someone you have not known for a long time. As many separated parents will tell you, co-parenting across two households takes a lot of communication and shared values so ensure that you are both on the same page.
      Get in touch
      For more information on alternative routes to parenting, please do get in touch with our Client Care Team using the details below or make an online enquiry More

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      in Children

      Surrogacy and second thoughts

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      At one time, or another, we have all seen a shocking headline which relates to surrogacy. Just last week there was an article in the Guardian online entitled “US couple withdraws legal action against ABC over claim they abandoned surrogate child with a disability”. In this instance the US couple, who had embarked upon a surrogacy arrangement in the Ukraine in 2015, took issue with their portrayal in an episode of Australian current affairs program Foreign Correspondent aired in 2019 and entitled ‘Motherland’, and a website article titled ‘Damaged babies and broken hearts: Ukraine’s commercial surrogacy industry leaves a trial of disasters’.
      The Background
      The intended father, Etnyre, was also the biological father of the child born through the surrogacy arrangement in the Ukraine. Sadly, the child was born prematurely, and she had serious health complications. The publications stated that the child had been abandoned following birth “because he did not like the child’s appearance”. It was also stated that Etynre and his wife Irmgard, hadn’t provided for the child financially, arranged to see her, or organised for her to move to the US. Instead, the couple engaged the surrogacy agency for a second time and had twins born via surrogacy who do now live with them.
      Reflections
      There is a lot to think about if you are considering surrogacy, but the Guardian article perhaps highlights, and feeds into, the biggest fear; what if the intended parents and/ or surrogate changes their mind?
      It is not uncommon to catastrophize and jump to worst case scenario, it’s how our brains operate. But these are very real concerns and are quite understandable. Surrogacy in the UK is built around trust and this can be quite a scary concept when you’re worried that you might be left holding the baby, or not holding the baby.
      Surrogacy Rights
      In the UK, the surrogate will always be the legal mother to any child, regardless of biology and even if the child is born in another jurisdiction that will allow the intended parents to be named on the birth certificate. This is often surprising for intended parents to hear. Who will be the legal father, or second legal parent, will depend on whether the surrogate is married, whether the intended parent has a biological link to the child and whether the child was conceived at a clinic. This often means that the legal parents at birth, are not who is intended to raise the child and so parentage needs to be resolved.
      At present in the UK the intended parents must apply for a parental order, which will reassign legal parentage to the intended parents. The surrogate, and her husband if she is married, will need to provide their consent for the order to be made.
      The future of UK Surrogacy
      It is actually very rare for there to be disputes arising from surrogacy arrangements, particularly where everyone has been sensible, and a great deal of thought and preparation has been put in. However, it is is a scary thought to enter into such a life changing arrangement without any legal protection.
      The law is without doubt outdated and needs to provide more protection. There are changes being proposed that would see intended parents recognised as the legal parents from birth and without the need for a court application. There are conditions attached and these changes are still a long way off, but we are making small steps forward.
      These changes would certainly provide much needed reassurance for the intended parents and surrogates.
      Get in touch 
      If you would like advice on your surrogacy rights, or other family law issues, please contact our Client Care Team to speak to one of our specialist surrogacy lawyers here. More

    • 150 Shares179 Views

      in Family Law

      Surrogacy – to agree or not to agree? That is the question

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      Those embarking on the path to having a child via the surrogacy route are often surprised that in the UK, unlike in many other countries, you cannot enter into an enforceable contract with your surrogate.
      This is mainly due to fact that in the UK, surrogacy is an entirely altruistic endeavour. However, this often leaves intended parents and surrogates alike feeling unsure as to how best to proceed, or how to ensure the surrogacy runs smoothly.
      The Law
      Although a solicitor cannot draw up any agreement, as this is a criminal offence under The Surrogacy Arrangements Act, this does not prevent the surrogate, a spouse or partner, and the intended parent(s), from sitting down together to discuss their ‘deal breakers’ and drawing up a formal document, called a Surrogacy Agreement, outlining what has been agreed.
      Surrogacy Agreements
      Surrogacy Agreements outline the issues raised during discussions, the specific terms of the shared agreement, and the chosen approach that all the parties will take – although the agreement is still not be enforceable should any party act in contravention of the terms.
      When speaking with intended parents or surrogates I provide early advice on the process of surrogacy, confirm their legal position, and give guidance on making an application for a parental order – the process of becoming a legal parent of the child – which is required.
      We recommend that you engage in these discussions with all parties, and consider all of implications, before the implantation of an embryo. Take the time, before starting the process, to sit down and have these difficult discussions. Whilst these can be a little awkward, it often helps to open the lines of communication and to build a good relationship between the parties.
      What should be included in the agreement?
      The agreement should include details of the parties’ positions, discussions and agreements reached such as;

      Decisions about the pregnancy
      Who will attend scans and appointments
      How you would deal with any difficult issues that arise, including medical issues (although of course the surrogate will always retain the right to make her own medical decisions)
      Arrangements about the birth and post birth
      Arrangements surrounding the application for the parental order
      Expenses and arrangements for payments
      Any other issues, or moral and ethical decisions you deem necessary to ensure you are all on the same page.

      Covid-19
      At present, intended parents may also need to consider whether they want their surrogate to have had a Covid vaccine or not and, if the surrogate is going to be vaccinated, whether or not she does this before the implantation of the embryo.
      If the parties do not agree on this issue, then they should talk openly about their concerns and include this specifically in the surrogacy agreement. Even if an agreement cannot be reached, discussing the issue can help to understand the others position and can assist with deciding how you move forwards.
      Why make an agreement if it is not enforceable?
      This surrogacy agreement can be shared with any relevant third parties, such as clinics or hospitals, so that they can understand the situation without the need for you to clarify your circumstances and the details of what has been agreed.
      Nobody knows what the future holds, but by formally recording your arrangements you have a definitive record of the agreement to refer to at a later date, should the need arise.
      This helps to ensure everyone’s wishes, and the agreements reached, continue to be respected and provide reassurance should there be a breakdown in the relationship.
      Final thoughts
      Although it is unlikely the surrogacy agreement will be able to cover every conceivable disagreement that might arise, it does offer peace of mind by helping you to reduce conflict around the most common issues.
      Furthermore, it opens up the channels of communication, facilitating discussions, and helping all parties to see each other’s point of view. This collaborative approach will help you to reach agreements if other issues, that had not previously been considered, arise.
      Ultimately, although unenforceable, discussions between the parties and the resultant surrogacy agreement are hugely beneficial, and important for all involved, to ensure everyone’s understanding and expectations are aligned.
      Get in touch
      If you are considering surrogacy and would like advice on this or other family law issues, please contact our Client Care Team to speak to one of our specialist surrogacy lawyers here. More

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      in Children

      The pitfalls of platonic co-parenting

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      Platonic co-parenting
      Strangers making babies, an intriguing new show, recently started on Channel 4, shining a spotlight on the concept of platonic co-parenting. 
      With apparently 70,000 people in the UK currently advertising online to be co-parents (some simply on a Facebook group), the show follows a group of single, would-be parents looking for a platonic partner to have a baby.
      Unlike surrogacy, which has soared in popularity in the last few years, partly thanks to celebrities such as Elton John and Kim Kardashian West, platonic co-parenting remains little understood and less spoken about. 
      However, what it does share with surrogacy is a complexity in the law and the potentially complicated process of both parties become legal parents. 
      What is co-parenting? 
      Co-parenting is defined as parents raising a child or children together who are not or have not been in a romantic relationship.
      People choose to co-parent for various reasons, and co-parenting can work for individuals and couples. 
      For example, a gay couple may choose to co-parent with a lesbian couple, or two heterosexual friends may choose to co-parent. 
      Things to think about when considering co-parenting 
      Before embarking on co-parenting, it is important to consider who you want to co-parent with and how your relationship as parents will work. 
      You also need to be clear about your expectations, shared values and approaches to parenting, and practical considerations. 
      One of the most important considerations is how the baby will be conceived and carried, and you need to think about, 

      Undertaking health and fertility checks 
      The method of conception, for example,  will you use a home insemination method or a fertility clinic for artificial insemination or IVF
      Who will be recognised as the child’s legal parent and have parental responsibility for the child

      A co-parenting agreement 
      Once you’ve decided to go ahead and start your family, you may wish to enter into a pre-conception or co-parenting agreement which a lawyer and/or a mediator can assist with. 
      This agreement is designed to record your intentions as co-parents and create a framework outlining both parties expectations and can include: 

      Who will attend antenatal appointments and the birth 
      Choosing the child’s name 
      How you explain to the child their life story
      Your views on health, for example, opinions on vaccinations
      Your approach and views on education, including how you wish to choose a school, private fees and involvement with the school concerning parents evening, school reports and attendance at events
      Agreements around childcare, such as using the services of a childminder, nanny or nursery 
      Your approach and view’s on managing challenging behaviour 
      Whether your child will be encouraged to follow a religion
      The time that the child will spend with each co-parent including for special events such as their birthday, Christmas and school holidays. 
      Financial support for the child, including any maintenance that may be paid, life insurance and financial provision in the event of your death.

      These agreements, however, are not legally binding. Since they cannot be enforced by UK law, the co-parents must rely on trust. This can leave people concerned about what might happen in the event of a disagreement or other conflicts further down the line.
      Who will be the legal parent? 
      The woman who carries the child will be automatically recognised as the child’s legal parent and detailed on the birth certificate in all circumstances of conception. 
      If you are co-parenting, it is important to consider who will be recognised as the second legal parent on the child’s birth certificate and granted parental responsibility. 
      However, who can be recognised as a parent will depend on the circumstances and the family’s makeup. 
      One male and one female co-parenting 
      If a single female wishes to co-parent with a man, then he can be the child’s legal parent by being registered on the child’s birth certificate, either at the time of the child’s registration (and he will need to be present for this) or through a Statutory Declaration of Parentage or Court Order. 
      If you wish to conceive the child using a registered sperm donation clinic, you will need to consent to his legal parenthood before treatment begins, and a clinic may refer to this as a “known sperm donation”. 
      It is recommended that you use a clinic for this reason. If you proceed with artificial insemination at home, then you are trusting the mother to agree to register the father at birth. 
      Couples who co-parent with a third parent or another couple
      As the law only allows two parents on a birth certificate, if you are looking to co-parent with more than two parents, you need to consider further arrangements to grant parental responsibility for the child through a Parental Responsibility Agreement.  
      For example, if a single female and a gay couple who are married or in a civil partnership agree to co-parent, only one of the men can be registered on the birth certificate as a legal parent alongside the mother.  In these circumstances, a third person can be granted Parental Responsibility as a step-parent of the child or by way of Court Order. 
      This means that while they are not legally defined as a parent on the birth certificate, they have an equal say to the legal parents on the key decisions regarding the child’s upbringing. 
      Find out how to apply for a Parental Responsibility Agreement. 
      Read more about the legal implications of sperm donation, egg-freezing and surrogacy.
      What if we disagree? 
      Meaningful discussions before entering into a co-parenting agreement will hopefully prevent disagreements in the future, but if a disagreement arises regarding the care of your child, you may wish to attend mediation to discuss matters. 
      Alternatively, your lawyer can forward proposals and negotiate on your behalf. Whichever method you choose, the key to an amicable agreement is good communication and realistic expectations.  
      Solicitors can discuss further options such as a roundtable meeting where both lawyers and clients are present or arbitration. 
      If agreements cannot be reached for whatever reason, an application to Court may be advisable.  The application may be for a Specific Issue Order, for example, if you disagree over a choice of schools, a Prohibited Steps (which prevents a parent from doing something), Parental Responsibility or a Child Arrangements Order which sets out how much time a child spends with each child.  
      Get in touch
      If you would like any advice on platonic co-parenting or other family law issues, please contact our Client Care Team to speak to one of our specialist lawyers here.  More