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Gay Times Law by Clive Sanders LLB

12 : Parenting and Adoption

Summary of Parenting and Adoption Law

Gay people can legally adopt as single persons, but not as a couple.


Under current law unmarried people whatever their sexual orientation can only adopt as single parents. Because same-sex couples can not marry they can not assume equal legal responsibilities for an adopted child. That is not to say that gays and lesbians can not adopt but just that adoption orders can not be given to both partners in a couple. The position however is set to change in 2004.

Under the 1997 Guidelines to the Childrens Act 1989 any single applicant whether living alone, co-habiting in a heterosexual, homosexual or asexual relationship can be considered as an adoptive parent.

There are also plenty of supporting cases including Re W 1997 where the court held that adoption provisions should be drawn widely and should not exclude as a matter of public policy a homosexual cohabiting couple or single gays and lesbians.

In October 2001 the government introduced the Adoption and Children's Bill which would allow adoption panels to consider married and unmarried couples as potential adoptive parents. In May 2002 the House of Commons approved an amendment to the Adoption and Childrens Bill to extend adoption rights to unmarried and same-sex couples. The legislation was passed in the House of Commons and was unexpectedly passed by the House of Lords in early November 2002. The Bill received Royal assent on the 8th November 2002. The new law will not be fully implemented until 2004, although some parts are expected to come into force next year.


There is still a lot of judicicial prejudice towards gay parents and even more so towards gay fathers. In CvC (a minor) 1991 the court considered whether a lesbian mother was a fit custodial parent for her 6 year old daughter. Though the mother won at first instance on appeal the judge said that

"The fact that the mother has a lesbian relationship with Ms A does not of itself render her unfit to have care and control of her child. It is however, an important factor to be taken into account in deciding which of the alternative homes which the parents can offer the child is most likely to advance her welfare."

It is a therefore a factor that can weigh against a gay parent in a custody hearing. For gay fathers the leading case is Re D (an infant) 1997 where a mother and her new husband sought an adoption order. Though opposed by the natural gay father the House of Lords granted the adoption order. However, in the European Court of Human Rights case Salgueri da Silva Mouta v Portugal 1999 a gay father denied access to his daughter soley because of his sexuality was held to have had his rights violated.