The biggest concern for many parents at the time of divorce or separation is its impact on their children
Parenting Issues & Child SupportThe best for your children We encourage parents to place their children's needs at the heart of the process
Children are particularly vulnerable to the effects of divorce and separation. Our talented team of lawyers can provide expert advice on a wide range of issues including contact (access) arrangements and appropriate financial provision and will work with you to put in place the best possible arrangements for the long term benefit of you and your children. We regularly advise parents who are seeking parental orders to deal with surrogacy or assisted reproduction and we are well known for our expertise in advising parents on the relocation of children abroad. We have set out below answers to some of questions that clients commonly ask us on these topics.
One of the biggest concerns for many parents at the time of divorce or separation is the impact on their children. Our team of highly experienced counsellors and family consultants is on hand to help your family come to terms with the emotional issues involved. They have many years of experience in helping with issues concerning children and can offer guidance to parents to help them to make the right decisions for their children. When parents are unable to agree about their children many find that mediation helps. We can also offer mediation which involves direct consultation with the children to help parents focus on the needs of their children.
We run Parenting After Parting workshops which encourage parents to place their children’s needs at the heart of their decision making process when undergoing a divorce or separation. The workshops take place at our offices in Covent Garden and are free of charge for our clients. Please contact Wendy Hoare at Family Law in Partnership if you would like to attend the workshops.
Sometimes parents have no choice but to allow the Court to make decisions concerning their children. When this happens our legal team will work in tandem with our highly experienced counsellors and family consultants to provide a uniquely rounded approach ensuring our clients and their children are well prepared for the process and the outcome.
You might like to read our series of articles on the Voice of the Child in family proceedings and our other blogs on children related matters:
Questions that clients commonly ask us about surrogacy or assisted reproduction:
- My partner and I are both UK citizens living in London. We are thinking of using a surrogate mother based abroad. Can we do this? Yes you can but complex rules apply if the baby is born outside the UK. You need to carefully select the country in which the surrogacy is to take place and fully understand the legal implications of your choice of jurisdiction. Some countries (eg. certain US states and the Ukraine) recognise commercial surrogacy (where a fee is paid to the surrogate mother). Some countries recognise surrogacy but not commercial surrogacy (eg. the UK and Australia). Some countries, like Portugal and Italy, don’t recognise surrogacy at all. The status of surrogacy within your chosen country will have a significant impact on the legal challenges that you may face.
- If our baby is born abroad to a surrogate mother, what legal implications might this have for our baby? You will need to consider both the family law and the immigration law issues. Does the baby automatically become a citizen of the country in which it is born (as is the case in the US)? Will the baby need a visa to allow it to come back with you to the UK? In some cases the baby is effectively stateless if it cannot take on the citizenship of the country in which it is born and if its parents are citizens of a country which does not recognise surrogacy.
- Do we automatically become the legal parents of the baby once it is born? Not necessarily. In some countries the intended parents become the legal parents as soon as the baby is born. Legal orders may be made in that country in favour of the intended parents straightaway. These orders are unlikely to be valid in the UK. Therefore, it is important that you make an application to become the legal parents of the child under UK law too by applying for a parental order or adoption under UK law (see below). There is a time limit of six months from the date of the baby’s birth after which the UK court will not generally issue a parental order. Thereafter the only option would be to adopt the child. While waiting for the parental order to be processed, the child will require a visa in order to enter the UK.
- What happens if our marriage breaks down and we don’t have a parental order and we haven’t adopted the baby under UK law? First and foremost you should ensure that the surrogate mother has waived her rights to the baby. If one or both of you are the child’s biological parent, you can apply for a parental order within six months of the baby’s birth. This will give you both equal rights in relation to the baby. If more than six months have elapsed since the birth of the baby, or if neither of you have a biological connection to the child, save in exceptional circumstances, you will need to apply to adopt the baby. This will require the involvement of a registered adoption agency. There may also be significant immigration issues for the baby.
- What is a parental order? Under UK law, a parental order transfers the rights and obligations of parentage to the intended parents, providing certain conditions are met. Applications for a parental order must generally be made to the court within six months of the birth of the child. To obtain a parental order, at least one of the couple making the application must be genetically related to the baby i.e. be the egg or sperm provider. Couples must be husband and wife, civil partners or two persons who are living as partners. A parental order reassigns parenthood, extinguishing the parental status of the surrogate parents, and confers full parental status and parental responsibility on both intended parents. If the child is born abroad, the intended parents can apply for a parental order only if they are living (or domiciled) in the UK.
- Why would I use adoption rather than a parental order? If you cannot apply for a parental order because neither of you are genetically related to the child (donor egg and donor sperm or donor embryos were used) or if more than six months have elapsed since the birth of the child, then (save in exceptional circumstances) adoption of the child is the only available option. This means that a registered adoption agency must be involved in the surrogacy process.
Questions that clients commonly ask us about their children moving abroad:
- I want to move abroad with my children/my job is taking me abroad. Do I need the consent of the other parent? If the other parent has Parental Responsibility for your children then yes, you will need their consent – or the permission of the court. The mother always has Parental Responsibility for her children. Broadly speaking, the father will also have Parental Responsibility if the parents were married when the children were born or if the father is named on the birth certificate (providing the child was born after 1 December 2003).
- If the other parent does not agree to my moving abroad with children, how long will it take to get the court’s permission? The process can take quite a long time (because of the relatively slow speeds that the courts operate at) – usually a minimum of six months, and sometimes quite a bit longer. However, the process can occasionally be completed more quickly if it is an emergency.
- Can I take my children in the interim, while I get the formal consent or court permission? No, you cannot take the children abroad without the consent of the other parent or the permission of the court, even if you have applied to the court for permission or are intending to. Doing so could severely undermine your chances of succeeding in a formal application to court for permission. Further, just taking the children could constitute child abduction.
- How much notice do I need to give? There is no minimum notice period required but, as explained above, if consent is not forthcoming and a court application is necessary, the process usually takes quite a long time.
- What do I need to show to get the court’s permission? These types of application are not straightforward – the ramifications for the children are significant. The intended move needs to be thoroughly and carefully prepared. It is much better to have considered planned a lot before you actually apply to the court. Broadly, you will need to show that the intended relocation is well thought through and is in the child’s best interests. You will need to be able to demonstrate a properly thought-through plan for how the children will maintain a meaningful relationship with the parent being left behind, to include spending time with them.
- How do we manage school holidays? I still want a holiday with the children and don’t want all of their holiday time to be taken up with them visiting their other parent. This is the sort of thing that would need to be considered and addressed as part of the process of obtaining the court’s permission to relocate. The court is likely to want to ensure that the children get to spend material holiday time with their other parent. However, you too should be entitled to take holidays with the children.
- How much will it cost? It is difficult to say how much it might cost to secure permission to relocate abroad with the children – each case is different. If your plans are well thought through and meet the needs of the children (to including spending time with the other parent), the other parent’s consent might be secured more easily than you may think. If the consent is not forthcoming and a formal court application is required, costs can be quite significant – so it essential that matters are prepared and planned well and efficiently.