The legal pitfalls when a baby has four 'parents'

In the eyes of the law, a child can have only two parents - one mother and one father. So, where does that leave gay couples?
Click to follow
The Independent Online

Jayne Mugglestone, a lesbian health official, is about to give birth to a daughter conceived by artificial insemination with the sperm of her homosexual friend Keith. Jayne and her female partner, from Bolton, plan to share "parental duties" with Keith and his gay boyfriend, although not to live together. It is the first reported case of a child being brought up by four "parents", but probably far from unique.

Jayne Mugglestone, a lesbian health official, is about to give birth to a daughter conceived by artificial insemination with the sperm of her homosexual friend Keith. Jayne and her female partner, from Bolton, plan to share "parental duties" with Keith and his gay boyfriend, although not to live together. It is the first reported case of a child being brought up by four "parents", but probably far from unique.

Finding someone to father the child tends to be the first step in this type of case. Achieving conception is next. Consideration of potential legal pitfalls is low on the agenda, if indeed it is there at all. All too often, the legal position is looked into only once there are relationship problems. If the parties understand in advance what issues need to be dealt with and where the potential areas of dispute are, there is time to cancel or at least alter the arrangements. It is the surprise that often causes the damage.

So, what are the pitfalls? For a start, in the eyes of the law, from the time of the child's birth, she would have only two parents, Jayne and Keith, not four. Immediately, Jayne will have parental responsibility for the child and will be able to make all the legal decisions for the child's benefit, including decisions about providing a home, determining the child's religion, consenting to medical treatment and so forth. As Keith will not be married to Jayne, he will not automatically have parental responsibility, although he can obtain it with Jayne's consent or by way of a court order. Whether he has parental responsibility or not, as one of the parents, he will be entitled as of right to apply for contact with the child or a residence (custody) order.

What about the prospects for Jayne's partner in the event of a split between her and Jayne, or Keith's partner if his relationship with Keith breaks down? It is possible for a third party who is not a child's parent to be awarded a residence or a contact order, but they first have to get the court's permission to make an application. Their chances of getting over that hurdle and over the second hurdle of being awarded a contact or residence order are stronger the longer they have actually been involved in helping to bring up the child.

What about financial support for the child? At the moment, a father in Keith's position may be happy to make whatever voluntary payments he thinks he can afford to the mother after the child is born. The mother might even be content to support the child financially, but even if she agreed never to make any financial claim against the father for the child's benefit, the jurisdiction of the Child Support Agency and the courts could not be terminated unilaterally in that way. The father could find himself facing heavy Child Support or maintenance payments for years to come, even if the mother had excluded him from the child's life, including being required to provide appropriate accommodation for the child and to pay, for example, school or university fees, subject, of course, to the level of his financial resources.

Or the mother could have to make those payments, if the father became the parent with whom the child was based. If mother and father want to protect their positions vis-Ã -vis their respective partners, they may wish to enter into deeds of covenant, formally covenanting to meet one half of any maintenance costs.

Despite the problems with the enforceability of an agreement on the Child Support front, it would make sense for people in Jayne and Keith's situation to enter into an agreement with their respective partners, covering the arrangements for the care of the child, which would help the court to decide who should be looking after the child in the unfortunate event of a legal dispute over her upbringing. It might even be worth considering obtaining formal residence and contact orders from the court with everyone's consent, soon after the child's birth.

It is crucial to avoid courting publicity. The overriding concern of the courts is to ensure that the child's welfare comes first, as set out in the Children Act 1989. The Family Courts are adapting well to changing lifestyles, but a judicial eyebrow would be raised if an application were brought for a residence or a contact order, for example, if the parties were intent on making a political point in their own personal interests rather than the child's.

The writer is a family law partner at Withers law firm