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Children and Same Sex Families

A Legal Handbook


An invaluable guide to this rapidly evolving area of law

Paperback i

Book printed softcover

This portable single volume handbook brings together the up-to-date statutory and jurisprudential position in family law appertaining to same sex couples, with an emphasis on children (where the law is at its most complex). The text clarifies the effect of the law of England and Wales as it relates to people with or wanting children who are in same sex relationships, in particular giving guidance as to complex issues such as;
  • gender and what constitutes a same sex relationship
  • same sex relationships for the international family
  • the effect on parentage of the timing, location and manner of a child's conception
  • issues of legality, illegality and status surrounding surrogacy and adoption
  • the family and financial consequences of the breakdown of same sex relationships and co parent relationships
  • the law relating to property ownership and succession for couples in a same sex relationship
  • the changes to the law in the HFEA 2008 which allow two people of the same sex to be the child's legal parents
Children and Same Sex Families: A Legal Handbook assists families, individuals and professionals in giving advice and making choices and arrangements to achieve the best outcome for that family. It is an invaluable guide to this rapidly evolving area of law written for all family lawyers and related professionals (eg charities; local authorities; healthcare trusts; adoption agencies; benefits agencies)
Children and Relationships
1. Parenthood (Marisa Allman)
  • What do we mean by parent?
  • Biological or genetic parenthood
  • Applications for declarations as to parentage
  • Legal parentage: mother father or parent?
  • Child of the family
  • Acquiring legal parenthood
  • Tracing legal parenthood
2. Parental Responsibility (Marisa Allman)
  • Defining parental responsibility
  • Who has parental responsibility
  • Acquiring parental responsibility by agreement or order
3. Surrogacy (Marisa Allman)
  • What is surrogacy
  • Commercial surrogacy
  • What are the routes to a commissioning parent becoming the child’s carer following surrogacy?
  • Making the application for a parental order
  • Adoption
  • Guardianship
  • International surrogacy
4. Private Law Applications
  • Scope
  • Historical background
  • The welfare principle
  • The welfare checklist
  • Parental responsibility
  • Section 8 orders
  • Parties to private law proceedings
5. Same Sex Adoption
  • What is the function of the adoption panel?
  • The constitution of the panel
  • How does the adoption panel work in practice?
6. Gender Recognition (Elina Latvio)
  • Meaning of ‘same sex relationship’ and gender recognition
  • Gender recognition background
  • What is ‘gender recognition’?
  • Registration
  • Parenthood
  • Social security benefits, pensions and tax issues
  • Proposals for change
7. Personal Protection (Marisa Allman)
  • The Family Law Act 1996 188
  • Regulation of the home 190
  • Non-molestation orders 197
  • Forced marriage 199
  • Protection from Harassment Act 1997

Financial Provision and Children
8. Civil Partnership (Marisa Allman)
  • Formation and recognition of civil partnerships
  • Registering as civil partners: procedure in England and Wales
  • Recognition of overseas relationships
  • Recognition overseas of English civil partnership
  • Declarations as to civil partnership status
  • Civil partnership: valid, void, voidable?
  • Breakdown of a civil partnership
9. Financial Provision on Breakdown of Civil Partnership (Sarah Greenan)
  • Overview
  • Financial provision on dissolution for civil partners Schedule 5
  • The general approach to applications for provision for civil partners
  • Procedure
  • Consent orders
  • Financial relief in the magistrates courts
  • Alternatives to court
  • Financial relief after overseas dissolution
10. Financial Provision on Breakdown of Cohabiting Relationships (Sarah Greenan)
  • Introduction
  • The family home: occupation
  • The family home: ownership
  • The family home: the legal framework
  • The family home: rented property
  • Other property
  • Provision for children on relationship breakdown
11. Succession (Sarah Greenan)
  • Introduction
  • Property which does not pass by will
  • Inheritance under a will
  • Gifts by will to children
  • Intestate succession
  • Succession to tenancies
  • Inheritance and family provision
12. Welfare Benefits (Elina Latvio)
  • Introduction
  • Background
  • Relevant legislation
  • The Llving together test
  • Gender recognition and implications for welfare benefits
  • Other benefits issues relating to same sex couples
  • Summary
  • Flowcharts Tracing Legal and Genetic Parentage
  • Forms
  • Material Relating to Gender Recognition
  • Statutory Materials
  • Useful Contacts
Click here for a PDF of the full contents
"clarifies the law as it relates to those either in, or wanting to be in, a same sex relationsip and who have, or want to have children.... this carefully footnoted book also provides extensive research resources, inculding tables of cases, statutes and statutory instruments, plus detailed index.... The up-to-date statutory and jurisprudential position in family law pertaining to same sex couples is carefully elucidated, which means the book is extremely useful not merely to legal practitioners but to professionals in local authorites, adoption and benefits agencies and healthcare trusts..."
for the full review click here
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
In many ways, this book feels as if it should have been written years ago and yet the simple truth is that it could not have been. Before the Human Rights Act 1998, the Adoption and Children Act 2002 and the Civil Partnership Act 2004 there would, for a start, have been a great deal less to say. Had the book been written earlier, it would, I suspect, have been a very different one, probably more agenda-driven and possibly with an authorial tone that is rather more polemical than this. That is a book that I am relieved we did not have to write, this is a book that I feel proud and privileged to have been able to have contributed to.

A society that respects diversity, values equality and promotes fairness is a healthier one for children to grow up in and a better one for us all. As I have researched my own contribution for this book and read the erudite analysis of my co-authors, what strikes me time and again is how those judges, politicians, lawyers, clergymen and others who keep these fundamental rights and liberties securely in focus are often able to move the law and social attitudes forward at a pace and with a high degree of consensus. An intuitive sense of these rights and freedoms in the past has not always found expression in the most sensitive language. It is a strange sensation in 2012 to read judgments of only a couple of decades ago that talk of homosexuals as ‘abnormal’ or ‘unfortunate’ whilst at the same time, in difficult cases involving the welfare of children, crafting analysis which is sensitive, child focused and full of integrity and fairness to a wide variety of minority groups.

Though we may sometimes be frivolous about it, in a way which is, I think, often healthy, we are nonetheless these days far more careful, considerate and thoughtful about our use of language and how it impacts upon the autonomy of others. This development, coupled with the raft of equality legislation, provides a framework for a much fairer society in the future and one in which the options for children are expanded, keeping them at the centre of the legal process. Our responsibility, be it as lawyers, parents or judges is to ensure that these opportunities for whom many fought and some died, are harnessed effectively by those charged with the responsibility to do so. This book aims to assist all of us who are engaged in that process and who want better to understand the ever-evolving concept of both parent and family.

Anthony Hayden QC,
March 2012


Fifty years ago the question ‘who are your parents?' was a simple one to understand, if not always simple to answer. It meant your genetic mother and father, or the people who you believed were your genetic mother and father. Since then science and society have changed the landscape of family structure. In twenty-first century Britain, the question might be met by another, more complex question, ‘what do you mean by parent?', and depending on the context in which the question is asked, there might well be different answers. Does it mean the person who is named on the birth certificate, or the person with parental responsibility? The person who provided the genetic material or the person who the law recognises as the parent, or the person who nurtures the child day to day? In the case of B and A and C and D1 in 2006 Mrs Justice Black observed that:

‘the law is advancing at a pace which is probably quicker than the pace of change in the views of society in general, where new ways of living have not yet wholly crystallised and where language has not yet evolved to accommodate them.'

Since then the court has grappled with issues of what we call the biological father who is not a parenting father if not a parent, or the name for the woman or man in a same sex relationship who stands in the position of a parent but does not have a biological or legal relationship to the child of the family. In 2007 in the case of TJ v CS and BA2 the court had to consider what to call the genetic father who did not have a parenting role and was also the child's uncle.3 In 2011 in the case of ML v AR4 the court began to develop the concept of ‘principal parenting' and ‘secondary parenting' to describe the respective roles of the women carrying out the day to day care of the child, and of the child's father and his partner.5 However, this concept was not endorsed by the Court of Appeal in the case of A v B and C6 in 2012 because ‘it has the danger of demeaning the known donor and in some cases they may have an important role'. In reflecting on her judgment in the earlier case of Re D7 Lady Justice Black observed that ‘despite the passage of time, the courts continue to struggle to evolve a principled approach to cases such as this one'.

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