Same-Sex Couples and Navigating Parenthood Across the Borders

For many same-sex couples, starting a family is a joyful milestone. But when life takes you across borders – a new job, a move closer to family, or a fresh start – the legal “givens” you relied on at home can start to look less certain. 

Family law distinguishes between legal parenthood (who the law recognises as a child’s parent) and parental responsibility, which refers to who has responsibility for key decisions in the child’s life, such as education, healthcare, and residence. 

In most day-to-day situations, these concepts sit quietly in the background. But if a relationship breaks down, or another country doesn't recognise your family status in the same way, they can become critical, potentially affecting school, living, and healthcare arrangements for children, as well as having widespread impacts on family life, including a parent’s rights in court proceedings. 

Legal position in England and Wales 

In England and Wales, a child can only have two legal parents. Being a child’s legal parent means that you have financial responsibility for a child, including the duty to pay child maintenance if you separate. You will also be considered a parent for the purpose of British nationality. 

A child’s birth mother is automatically considered one of the child’s parents and will automatically have parental responsibility for the child by virtue of the Children Act 1989. 

Sections 42, 43 and 44 of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”), provide routes by which a woman who is the birth mother’s spouse, civil partner, or partner can be recognised as a legal parent by meeting certain statutory conditions. Where those legal parenthood conditions are met and the parent is named on the child’s birth certificate parental responsibility will follow in England and Wales.

This isn't the same for male same-sex parents. In surrogacy arrangements, the law in England and Wales treats the person who gave birth as the child’s legal mother at birth, regardless of genetics. Intended parents (including two fathers) commonly need a parental order (or, in some cases, adoption) to become the child’s legal parents. For couples, the parental order route is set out in sections 54 of HFEA 2008.

Parental responsibility can also be acquired in other ways including a Parental Responsibility Agreement, Parental Responsibility Order or Lives With Order. 

International parenthood disputes

There are some mechanisms for mutual recognition of rights across different countries and jurisdictions. For example, within the EU, Member States may be required to recognise a parent-child relationship established in another Member State for the purpose of rights derived from EU law, such as free movement, equal treatment and the right to obtain travel documentation for the child. However, this doesn't necessarily mean parenthood must be recognised for all purposes in every country. 

In any event, post-Brexit, the UK is no longer part of those EU mutual recognition structures in the same way. Instead, a key framework is the 1996 Hague Child Protection Convention, which (broadly) uses the child’s habitual residence as the main jurisdictional connecting factor and provides a recognition and co-operation between contracting states in relation to parental responsibility. It doesn't deal with the establishment of ‘parenthood’ across borders. 

There are cases, however, where foreign judgements have been recognised. One example is a Supreme Court of Germany Decision, BGH XII ZB 463/13. The case concerned a Californian judgement recognising parents in a surrogacy arrangement as the child’s legal parents, and the German court ultimately allowed the foreign judgement in the circumstances. There was a focus on the voluntary consent of the surrogate and the best interests of the child, including their right to a parent-child relationship with both intended parents. That said, these situations remain extremely contentious and fact specific. Families shouldn't assume that a document accepted in one country will automatically be accepted, and quickly processed, in another. 

Similar issues can arise even outside the context of surrogacy, particularly where a family is living in a country where domestic law doesn't recognise same-sex parenthood.

In Re S (Children: Parentage and Jurisdiction) - [2023] EWCA Civ 897, the children were living in a Gulf State where same-sex relationships are criminalised and where a non-biological parent was not recognised as having parent status. This lack of recognition meant the parent had no legal standing locally to apply to the court in relation to contact or other aspects of parental responsibility. The case highlights a practical reality for many internationally mobile families: when recognition falls away in one jurisdiction, the ability to access the court system, and to secure arrangements for a child, can be significantly restricted. 

Practical steps

Moving across borders and into a different jurisdiction is an exciting step – but it is also important to  take protective measures. Seeking early legal advice, including from specialists familiar with the relevant jurisdictions, can help you feel reassured that you are taking the right steps.

Ensure that you have all relevant documents readily available, such as birth certificates, parental orders, and any other evidence of legal parenthood. It can also be helpful to obtain certified translated copies in advance to avoid delays with schools, healthcare providers, and other official processes.

If additional steps are necessary to establish ‘parenthood’ in the new country these should be taken straight away, rather than following a relationship breakdown.

Finally, although it can be uncomfortable to think about, it is often helpful for parents to have open and honest discussions about what a relationship breakdown after an international move could look like in practice – and to record shared intentions where appropriate. The aim is not to plan for the worst, but to reduce uncertainty and conflict.  

If you are considering relocating abroad, speak to a family law specialist at Irwin Mitchell at an early stage to protect your rights.