YRES 2023: Working with modern families: “wide ranging and fascinating”

At this year’s YRES Conference in November, we presented our session entitled Modern Families: An open and sensitive discussion on LGBTQ+ family law. Harriet Gibson of Family Law Partners chaired the session, with two speakers, Scott Halliday of Irwin Mitchell, and Bethan Carr of Penningtons Manches Cooper. The aim of the session was to provide a brief update as to the law surrounding surrogacy in England and Wales, together with a reflection and insight into best practice when considering gender identity and sexual orientation in the world of family law, and to engage in a (hopefully!) lively discussion.

The session began with Bethan speaking to delegates as to the history of the current law surrounding surrogacy. Bethan explained that the current legal position for intended parents who have conceived a child via a surrogacy arrangement is that, regardless of biology and where in the world the child is born, under the law in England and Wales the surrogate (as the woman who gives birth) will always be recognised as the child’s legal mother, with her spouse being recognised as the legal father or second legal parent. Currently the legal solution to the predicament of a child having no legal relationship with their intended parents, is to make an application to the Family Court for a parental order following the birth.

Provided the intended parents meet the necessary criteria (as set out in sections 54 and s54A of the Human Fertilisation and Embryology Act 2008), and the court considers the parental order is in the child’s best interests, this will be granted between 4-12 months following the birth. The impact of the parental order is that the surrogate’s status is extinguished (together with that of her spouse, if married) and legal parenthood and parental responsibility will be transferred to the intended parents. Bethan commented on the difficulties with the current system, and the issues which can arise as a result of it not being possible to enter into a legally binding surrogacy agreement. The issues which intended parents and surrogates both experience with the current legal framework led to the Law Commission considering surrogacy as part of their 13th Programme of Law Reform. The project started in 2018, and their final proposals were published in 2023.

As Kathryn Cassells sets out in detail in this issue, the Law Commission’s proposals are extensive, with commentary and quotes from members of the surrogacy community. They can be accessed at lawcom.gov.uk/project/surrogacy/. Bethan outlined a number of the key proposals, one of which is the creation of a new pathway to legal parenthood for an entirely domestic surrogacy arrangement, which will allow intended parents to be recognised as the legal parents of the child from birth, provided a number of requirements and safeguards are met to ensure that the welfare of the child is protected, and that all parties are on the same page.

The response to the Law Commission’s proposals have been mixed, but overall it is acknowledged that they are a step in the right direction and will result in an improved system than the one we have currently. However, given that the government’s interim response (received on 8 November 2023) has been that Parliamentary time does not allow for the proposals to be taken forward at the moment, they remain hypothetical for the time being and it remains important to have an eye on the current legal framework.

Scott then went on to speak about LGBT+ children and/or parents engaged in private law children proceedings. Scott explained that whilst the facts and emotions at play in these sorts of matters may be different, they still have to be understood in some wider pre-existing context. LGBT+ issues will rarely stand alone and should be seen in the context of the application(s) before the court, such as: international or internal relocation, domestic abuse allegations, high conflict parental dynamics, parental alienation matters, change of school, change of surname etc.

Scott explained and suggested, from his work in this area, that practitioners need to take a step back and consider with clients how to best plead a case in proceedings or, more informally, in mediation, when LGBT+ issues are at play. There may well be certain facts, accepted or alleged, which have to be understood and seen in the context of the LGBT+ parental relationship, or in the case of an LGBT+ defining child, the parents’ private views and approach.

In the case of LGBT+ defining children and young people, Scott explained that, in contentious matters, parents can on occasion wrap up their feelings of distrust, linked to their relationship, with now very real and proper issues of a child’s gender or orientation. As practitioners, Scott urged, we need to take a cautious and compassionate approach to ensure clients fully unpack the reality on the ground of the situation they and the child face.

There has been considerable law reform and social change related to LGBT+ children and parents in the last few decades. The ways in which LGBT+ parents form families may well be different to their heterosexual counterparts and as such it cannot be ignored, indeed Scott reflected on its importance and how often parents, for better or worse, want to, for example, rely upon a biological link when both parents share PR for a child. This often difficult and upsetting issue, in proceedings, has to be sensitively dealt with. This is not an issue which would typically even be considered at all in a heterosexual dynamic. A working knowledge and understanding of the historical social change, through law reform in part, is a prerequisite to advising and properly understanding LGBT+ parents.

The final part of the session was led by Harriet and involved the panel discussing and highlighting issues arising from both Scott and Bethan’s outlines. Scott raised the fact that emerging areas of law or new family formation are often a “political” issue as much as a legal one. The panel discussed the ECHR case of Steinfeld v Keidan, which involved a mixed-sex civil partnership, commenting that we as a country are often slow to make meaningful changes to our legal framework and could be much more responsive to changes in attitudes in society. Even in a case such as this – with a clear and obvious discrimination based on sexual orientation – our country sat on its hands for some six years without any real intention of making civil partnership available to all. Harriet remarked on the trend for more conservative approaches in the political landscape, especially with respect to the US, where Roe v Wade was overturned. Do we/will we see a similar rolling back of LGBTQ+ and women’s rights in this country?

Bethan remarked on the approach to surrogacy in Europe – the legal position is more restrictive in France and Italy than it is in England and Wales. What trends might we see in the next ten years in terms of reform? The panel also commented on the fact that the position with international surrogacy is still not addressed by the Law Commission’s proposals.

If you want to effect change in this area or make a contribution, what do we suggest? Writing to your MP is the best way to contribute to the democratic process (and either starting or engaging with government petitions). Please do give your views on whether the proposals for reform on surrogacy go far enough. Showing your interest and taking the time to write will demonstrate to the government that there is a strong demand for change and that the legislation should be prioritised. We hope to have illustrated in our session how wide-ranging, and fascinating, Modern Families work is. Echoing the words of Mrs Justice Kind in JP v LP (Surrogacy arrangement: Wardship) [2014] EWHC 595 (Fam), this practice area should be part of every family practitioner’s toolkit and we encourage you to get involved.