The Legal Evolution Of "Children"

This article traces the evolution of the legal meaning of "children" and considers how it has transformed to reflect the reality of society and family dynamics.

Historic development

Before the Legitimacy Act 1985, illegitimate children, that is children born out of 'wedlock', were not treated in the same way as their legitimate counterparts in respect of legal interests.

This now anachronistic approach has been changed through legislation. The notion of 'illegitimacy' is now an irrelevant concept for today's generation, and rightly so. Society is always changing, and Manx law -- through the Reproductive Rights Act 2025 - is too.

The evolving meaning of "children" in the law, in particular in private documents such as wills and trust instruments, is directed at including those intended to benefit from the trust or estate. Nowadays, the statutory default position is that "children" includes legitimate, legitimated, illegitimate and adopted children. The Reproductive Rights Act 2025 has further affected the position.

At common law, the default meaning of "children" was exclusionary - in private documents the starting point was that "child" did not include an illegitimate child. There was no concept of legal adoption in the common law, and the common law did not reflect the reality of modern reproduction techniques in that, for example, a male donor would be regarded as the father even if that was not the intention of those concerned.

Intervention by statute

The legislature intervened with a more inclusive approach. The Legitimacy Act 1985 provides that reference to children includes any illegitimate child unless the contrary intention appears. The Adoption Act 2021 later provided that an adopted person is to be treated in law as if born the child of the adopters or adopter. Part 9 of the Children and Young Persons Act 2001 (CYPA 2001) further advanced the law in determining the legal parenthood of children born through assisted reproduction methods.

This inclusive approach was recently demonstrated in the UK case Marcus v Marcus (2024) EWHC 2086 (Ch) where a stepchild was found, for the purposes of a trust deed made in 2003, to be included within the definition of "children".

Jonathan (born 1981) was a biological child of the settlor. Edward was born in 1978 and although his birth certificate recorded the settlor as his father, a paternity test after the settlor died proved the settlor was not Edward's father. The settlor died in 2020, still believing Edward to be his biological child.

Jonathan argued that as the "natural meaning" of the word "child" does not include stepchildren, and as the settlor had not known that Edward was not his child so could not have intended a different meaning, the word "child" should exclude Edward. The court decided however that the settlor when using the word "children" in 2003, had meant to include Edward.

This case marked a further development in an inclusive interpretation of the "children" that can encompass all family structures. The Manx courts have recognised that 'while biological ties give rise to a strong presumption of family life, it is not conclusive' (Re Child 1 and 2 2012 MLR 581). This is judicial recognition that the meaning of "children" cannot rely on biological factors alone, and in wills/trust deeds the important factor is the testator/settlor's intention.

Trust deeds and wills

Given this, it is important for professional trustees who administer trusts to ensure that the testator/settlor's intentions are clearly known, by drafting and interpreting a clause including "children" so that the appropriate persons are included within the class.

Ascertaining the class of beneficiaries of a trust or will is ever more pressing today, as more children are being born through in-vitro fertilisation (IVF) methods and surrogacy arrangements.

The case of Re AB (A Child) (2024) EWHC 586 highlighted the complexities that can arise in this area. In Re AB, the child was conceived and born under a surrogacy arrangement in California, whereby an embryo was created using the commissioning mother's egg and donor sperm and carried to term by the surrogate mother.

The child was legally adopted by the commissioning parents in the US, before they moved to the UK. The US adoption was automatically recognised in England and Wales due to the Adoption (Recognition of Overseas Adoption) Order 2013. However, that was not enough for the child to be a beneficiary under a family trust which predated the reform of English adoption law in 1976 as, at common law and under the UK Human Fertilisation and Embryology Act 2008, the surrogate mother would be regarded as the parent of the child.

The commissioning parents therefore applied for a parental order under the HFEA 2008. One of the conditions for a parental order is that "the child has been carried by a woman who is not one of the applicants". The issue was whether the Adoption and Children Act 2002, in providing that the child was to be treated in law as if born as the child of the commissioning parents, deemed the commissioning mother to have carried the child. The court decided that who had carried the child was a question of fact, not law, and since – factually – the commissioning mother had not carried the child, a parental order could be made. Presumably (the judgment does not say) the trustees of the family trust then recognised the child as a beneficiary.

Reproductive Rights Act 2025

The recent Reproductive Rights Act 2025 ("RRA") received royal assent on 21 October 2025. The Act will (when brought into operation) make several important changes that aim to bring Manx law largely in line with the UK HFEA 2008.

The RRA provides, for example:

• That the woman who carries a child conceived by artificial means is the mother (subject to an adoption order).
• That the father of a child conceived by artificial means is the husband of the mother, where the husband consented to the treatment.
• Where the mother was party to a marriage or civil partnership with another woman, then the latter is to be treated as a parent of the child unless she did not consent to the treatment.
• That one person or two people can apply to the High Court for a parental order, that is an order providing for a child to be treated in law as the child of the applicant(s), where the child has been carried by another woman. This would enable commissioning parents in a surrogacy arrangement to apply for a parental order.
• That no surrogacy arrangement is enforceable by or against any of the persons making it. The RRA will also make it an offence to do certain acts in relation to promoting or negotiating a surrogacy arrangement.

The RRA therefore marks an important development of the meaning of "parent" and consequently of "children"- a welcome step towards more legal inclusivity as the status of more Manx couples is accommodated within statute.

International instruments

The recognition of legal parentage varies across international borders. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption does enable automatic recognition of adoption overseas, whilst the Working Group on Parentage Surrogacy established by the Hague Conference on Private International Law was set to meet in November 2025 to finalise its last report. The group is seeking to create a new instrument providing greater certainty of legal parentage across international borders, particularly for surrogacy arrangements.

Older trusts may not have factored in these developments and may include references to children that may be open to argument. Although the Variation of Trusts Act 1961 allows the court to assist in varying a trust, this can be a costly solution.

Conclusion

The RRA signals that Manx law is continuing to successfully adapt to reflect the reality of Manx families in contemporary society. The Act also serves as a reminder to those creating and administering a trust or estate to think carefully about the evolving meaning of "child" to include the correct intended beneficiaries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.