Step-Parents: Blended Rights?

In a recent address to the Medico-Legal Northern Ireland Society, Lord Wilson of Culworth drew attention to the prevalence of blended families in modern society. He stated that partly due to divorce, the blended family often now replaces the nuclear family, and added that there were potential benefits to children learning from an early age `to cope with relationships in a mixed and wider family group’.

One in three people in the UK is now a ‘step-parent, stepchild, or step-sibling. Stepfamilies are an established part of modern family life but step-parents and natural parents are often unaware of the legal implications of these relationships.

A number of studies and literature reviews have looked at the relationships and dynamics within stepfamilies. Many step-parents have little or no awareness of their rights and responsibilities. This may be partly due to the fact that many step-parents and children appear not to identify themselves as being in a ‘stepfamily’ and tend to have an inclusive view about their family.

In a legal sense step-parents are often inconspicuous, however the living arrangements in many stepfamilies often mean that step-parents live with or look after the children of their spouse or civil partner. In certain situations, for example where a child needs urgent medical treatment, the authorities will need to deal with someone with parental responsibility. Parental responsibility is the most important concept between parents and children. It is defined by s3(i) of the Children Act 1989 (ChA 1989) as ‘all the rights, duties, powers, responsibility and authority’ which by law a parent has in relation to their child. A step-parent does not automatically obtain parental responsibility for a stepchild just by marrying or entering into a civil partnership with the child’s parent. Since 30 December 2005 a step-parent who is married to or the civil partner of a parent who has parental responsibility for their child may apply for an order for parental responsibility or may enter into a parental responsibility agreement by virtue of s4A(1), ChA 1989.

Parental responsibility agreement

Step-parents can acquire parental responsibility by signing a parental responsibility agreement to which a natural parent (or both natural parents if they both have parental responsibility) consent. This is a formal document that needs to be signed by all the parties and then registered with the court.

Parental responsibility order

A step-parent may apply to the court for an order granting parental responsibility under s4A, ChA 1989. When considering whether to grant the application the court will have regard to what is in the best interests of the child and will consider:

• the step-parent’s connection with the child;
• the risk of disruption; and
• the consent or position of any other person who has parental responsibility.

Since the coming into force of the Civil Partnership Act 2004, same-sex partners in a registered civil partnership can also acquire parental responsibility by agreement or a court order. It is important to bear in mind that if the application for parental responsibility is made after the step-parent and natural parent’s relationship has broken down, a parental responsibility order can only be made if the applicant is still married to the child’s natural parent. The step-parent will need to show a level of commitment and attachment to the child, most likely as a result of their having lived together or having spent significant time together so that they have become part of the child’s life.

An unmarried step-parent who wishes to acquire parental responsibility for their stepchild would have to apply for a child arrangements order relating to with whom the child is to live, or to adopt their stepchild. Under ss49(1) and 144(4) of the Adoption and Children Act 2002 an adoption order can be granted to ‘a couple’ in an ‘enduring relationship’ without the necessity for them to be married. The acquisition’ of parental responsibility by a step-parent vests in them the same duties and responsibilities as a natural parent but does not affect the rights and responsibilities of the other parents with parental responsibility.

Case law

There are very few reported cases concerning applications under s4A, ChA 1989. The cases that have emerged are very fact-specific, mainly involving step-parents who originally believed themselves to be the biological parent of the child.

R v R (parental responsibility) [2011] concerned a three-year-old child whose Thai mother had persuaded her much older husband that he was the natural father of the child and was registered accordingly on the child’s birth certificate. This gave rise to the husband acquiring parental responsibility and to a presumption that the child was his. In reality the child’s natural father was a Swedish man with whom the mother had had a previous relationship and whose paternity had been established through a DNA test (obtained without the court’s leave). The mother initially sought leave to remove the child to Thailand but later changed her mind, stating that she wished to move to Sweden instead to marry the biological father. She later made an application for a declaration of parentage which would in effect extinguish the husband’s parental responsibility for the child. The husband in turn sought a residence or shared residence order, failing which to have his parental responsibility restored under s4A(i)(b), ChA 1989. The court granted the declaration of parentage order but refused the husband’s application for residence/shared residence. In considering whether to make an order under s4(A)(i)(b) the judge noted that the husband had been the child’s psychological parent for nearly three years and had demonstrated a strong commitment to the child. The order was refused but the mother was ordered to provide the husband with regular information about the child and contact was granted. The judge took into account that the husband was not the child’s biological father and concluded that it would not be in the child’s true interest to invest the husband with parental responsibility, as it would place him at the heart of all future important decisions concerning the child in a way which was likely to lead to conflict with the mother in the future.

In Re S (a child) [2013] the mother was a Columbian citizen married to a British man. The child was born shortly after the start of their relationship and the husband was named as the child’s father on the birth certificate (although he was not the biological father). He also had parental responsibility under Columbian law. The parties separated when the child was five whereupon the mother made an application to relocate the child to Columbia where she had a large extended family and better employment prospects. The husband opposed the application and made an application under s4A, ChA 1989. It was noted that such orders were normally made in favour of an incoming step-parent who wished to raise a child together with the parent with parental responsibility. However it was acknowledged that the power to confer parental responsibility was flexible. With the mother’s agreement the court granted parental responsibility to the husband which was considered appropriate in the light of his attachment and commitment to the child.

Re G (children) (residence: same-sex partner) [2006] concerned two women who lived together in a lesbian relationship for seven years. Following their decision to have children together, the younger of the two, CG, was inseminated using sperm from an anonymous donor. There followed the birth of two girls, child A in 1999, and child B in 2001. The non-biological parent, CW, already had a 17-year-old son from a former relationship, also conceived as a result of anonymous donor insemination, and all three children were brought up as siblings. The relationship between the parties broke down. Following their separation the High Court made a shared residence order to enable CW to achieve parental responsibility, together with an order prohibiting CG from moving any significant distance from the former partner. CG deliberately flouted that order, secretly setting up home in Cornwall, unilaterally making schooling decisions and removing the children from their home city without any warning. CW applied for orders to discover the children’s whereabouts and sought to be named as primary carer. The judge granted residence to the CW to prevent a ‘future of litigation and emotional damage to the children’. The Court of Appeal dismissed CG’s appeal but the House of Lords reversed that decision. At every level of judicial intervention in this case, the court gave its full endorsement to the crucial ‘parental’ role that a non-biological parent can play in a child’s life. However ultimately paramountcy was given by the House of Lords to the biological parent, meaning that the fact of parentage was held as a significant factor in considering the arrangements that were in the children’s best interests.

Contact and residence

If the relationship between a step-parent and natural parent breaks down, it is possible for the step-parent to apply for a contact or residence order (since 22 April 2014, a child arrangements order as to with whom a child is to live, spend time or otherwise have contact with, and when a child is to live, spend time or otherwise have contact with any person) regarding their stepchild in the following situations if:

• the parties were married to, or in a civil partnership with, the natural parent and the stepchild was a child of the family (ss10(5)(a) and (aa) ChA 1989);
• the step-parent has lived with the stepchild for at least three years (s10(5)(b), ChA 1989);
• the step-parent has parental responsibility for the child by virtue of an order made under s4A, ChA 1989 (in which case the step-parent is entitled to apply for a s8, ChA 1989 order); or
• the step-parent has obtained the leave of the court to make an application for contact/residence.

Financial provision

Under the Child Support Act 1991, statutory child support cannot be sought from a step-parent. However, in terms of financial arrangements on divorce, under the Matrimonial Causes Act 1973 (MCA 1973) a step-parent may be required to provide financial provision for a child where the child has been treated as a ‘child of the family’, even if they have divorced from the child’s parent. In determining whether such an order should be made, the court must take into account the factors set out in ss25(1), (3) and 24(4), MCA 1973. These include the financial needs of the child, any physical or mental disability, whether the step-parent has assumed any responsibility for the child’s maintenance, whether in doing so they knew that the child was not their own, and the liability of any other person to maintain the child.

The provisions of Schedule 1 to the ChA 1989 can also apply to step-parents where the child has been treated as a child of the family. Schedule 1 is usually utilised where the couple are not married or in a civil partnership. Under this provision, claims can be made for the benefit of the child for:

• periodical payments;
• school fees;
• lump sum(s);
• settlement of property; and/or
• transfer of property.

In deciding whether to make an order the court will have regard to a checklist of factors that includes:

• the income, earning capacity, property and other financial resources which each party has;
• the financial needs, obligations and responsibilities of each party; and
• the financial needs of the child.

There is specific guidance in para 16(2), Sch 1, ChA 1989 in relation to step-parents: the court must additionally have regard to whether the step-parent has assumed responsibility for the maintenance of the child, whether they did so knowing the child was not theirs, and the liability of any other person to maintain the child. If the court makes an order against a step-parent, it will be recorded on the face of the order that it is made on the basis that the person against whom it is made is not the child’s parent.

Intestacy and wills

The usual rules of intestacy do not cover stepfamilies unless the parent who died had formally adopted the stepchild. Only a spouse, a blood relative or an adopted child can inherit automatically from someone who died without leaving a will. A will that leaves assets to the testator’s ‘children’ or ‘brothers and sisters’ does not include stepchildren and step-siblings. However, if a stepchild was treated as a child of the family by a married step-parent or was financially dependent on a step-parent who has died, and there is either no or inadequate provision on the death of the step-parent, he or she can potentially make an application to the court under the Inheritance Act (Provision for Family and Dependants) Act 1975.

Conclusion

Given the growing significance of blended families in modem life, this is likely to be an area of law with increasing practical importance for natural parents and step-parents alike.

This article was written with Lehna Hewitt and was first published in Family Law Journal, June 2014 and is reproduced with kind permission.

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