Moving abroad as a family is an exciting step. For same-sex couples, however, an international move can raise legal questions that other families may never need to consider. Will your status as a legal parent be recognised in your new country? And if your relationship were to break down after the move, would you have the same rights and protections you currently have in England and Wales?
These are not abstract concerns. They can affect everyday matters such as schooling and medical decisions, and in more serious cases, your ability to protect your role in your child’s life.
The reassuring news is that these risks can often be identified and managed with careful preparation. The key is to consider them before you relocate, while the widest range of options remains available.
Your legal position in England and Wales
In England and Wales, a child can have no more than two legal parents, and legal parenthood is the foundation of everything that follows. It governs who has standing to make decisions about a child’s life, and in the event of separation, it determines who has the right to seek the court’s involvement.
How legal parenthood arises depends on the circumstances of the family. The birth mother is recognised as a legal parent from the moment of birth and automatically acquires parental responsibility. A second parent may also be recognised as a legal parent from birth, for example where a child is conceived through treatment at a licensed UK fertility clinic and the written consent formalities required by the Human Fertilisation and Embryology Act 2008 have been completed.
In surrogacy arrangements, legal parenthood does not transfer automatically. The intended parents must apply for a Parental Responsibility Order under the same Act, which transfers parenthood from the surrogate once the statutory criteria are met. Until that order is in place, the intended parents’ legal position may not reflect the family’s day-to-day reality, and taking steps to regularise the position before any international move is particularly important.
Alongside legal parenthood sits parental responsibility, the framework of rights and duties involved in making decisions about a child’s upbringing, including education, healthcare and where the child lives. This is governed by the Children Act 1989. The two concepts are related but distinct, and that distinction becomes significant when your family moves abroad.
Will your parental status be recognised abroad?
Legal recognition in England and Wales does not automatically follow you when you move to another country. Each jurisdiction defines parenthood according to its own domestic law, and while some countries recognise same-sex parenthood and foreign court orders without difficulty, others take a far more restrictive approach.
If you are relocating to an EU Member State, it is important to appreciate that measures aimed at improving recognition of parent-child relationships were developed primarily for EU citizens moving between Member States. Following the UK’s departure from the European Union, British families cannot assume that those mechanisms will apply to them in the same way.
The principal international framework relevant to UK families is the 1996 Hague Child Protection Convention. The Convention facilitates cooperation between contracting states in matters of parental responsibility and establishes rules about which country’s courts have jurisdiction, usually based on the child’s habitual residence. Critically, however, it does not determine who qualifies as a legal parent in the first place, and that gap can have significant consequences for families whose parental status may not be straightforwardly recognised under foreign law.
What non-recognition means in practice
Where parental status is not recognised in the country where you are living, the consequences can range from administrative difficulty to serious legal vulnerability. At a practical level, you may encounter obstacles when enrolling your child in school, consenting to medical treatment or dealing with official processes that require proof of your legal relationship.
The position becomes significantly more complex if a relationship breaks down after an international move. If you are not recognised as a legal parent under the law of the country where you are living, you may have no automatic standing to apply to its courts for contact, residence or involvement in decisions about your child’s upbringing.
The distinction between legal parenthood and parental responsibility helps to explain why this matters. Legal parenthood is a permanent legal status that, once established, can only be displaced through adoption. Parental responsibility, as defined by the Children Act 1989, concerns the rights and duties involved in making decisions about a child’s life, and it is this that courts rely upon when determining arrangements after separation. If a foreign jurisdiction does not recognise your legal parenthood, it may also decline to recognise your parental responsibility, leaving you with limited or no legal route to protect your relationship with your child.
Jurisdiction adds a further layer of complexity. After an international move, it will usually be the courts of the country where the child is habitually resident that determine arrangements going forward, applying local law. Although domestic legislation such as the Family Law Act 1986 and international instruments including the 1996 Hague Child Protection Convention regulate aspects of jurisdiction and cooperation, they do not guarantee that parental status established in England and Wales will be recognised or enforced abroad.
The Court of Appeal’s decision in Re S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897 illustrates how serious these issues can become. A same-sex couple had relocated to a jurisdiction in which same-sex relationships were criminalised and the non-biological parent had no recognised legal status. When the relationship broke down, that parent had no standing in the local courts and could not apply for contact or participate in decisions about the children’s upbringing. Although the English courts ultimately confirmed that they retained jurisdiction to consider the children’s welfare, reaching that point required contested litigation and left the parent’s position overseas highly uncertain. The lesson is not that international relocation will inevitably result in dispute, but that where recognition is uncertain, the consequences can be profound and difficult to remedy once a crisis has developed.
What you can do to protect your family
The most effective protection is early, specialist advice. The legal position for same-sex parents varies significantly from country to country, and understanding the law of your destination before you move allows you to assess whether your parental status is likely to be recognised and what additional steps, if any, should be taken in advance.
Documentation matters too. Birth certificates, Parental Orders, adoption orders and any court orders relating to parental responsibility should be complete, readily accessible and, where relevant, professionally translated. In some jurisdictions, formal recognition procedures will also need to be addressed under local law, and it is considerably easier to deal with these matters while family relationships are stable than in the context of a dispute.
Relocating abroad does not have to mean accepting legal uncertainty. With informed planning and careful advice, same-sex families can move forward with greater confidence about the security of their parental status.
If you would like advice on any of the issues discussed in this article, please contact our family law team.
