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

In a legal sense, step-parents are often inconspicuous. However, the living arrangements in many step-families 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 s 3(i) of the Children Act 1989 (CA 1989) as “all the rights, duties, powers, responsibility and authority" which by law a parent has in relation to his or her child. A step-parent does not automatically obtain parental responsibility for a step-child 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 s 4A(1) of CA 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 which 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 s 4A of CA 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 stepparent’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 effect 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 hae become part of the child's life.

An unmarried step-parent who wishes to acquire parental responsibility for their step-child would have to apply for a residence order (or shared residence order) or to adopt their step-child. Under ss 49(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 few reported cases concerning applications under s 4A of CA 1989. The cases which 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] EWHC 1535 (Fam), concerned a three year-old child whose Thai mother (M) had persuaded her much older husband (H) that he was the natural father of the child and was registered accordingly on the child’s birth certificate. This gave rise to H acquiring parental responsibility and to a presumption that the child was his. In reality, the child’s natural father was a Swedish man (S) with whom M had had a previous relationship and whose paternity had been established through a DNA test (obtained without the court’s leave). M 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 H’s parental responsibility for the child. H in turn sought a residence or shared residence order, failing which to have his parental responsibility restored under s 4A(i)(b) of CA 1989. The court granted the declaration of parentage order, but refused H’s application for residence/shared residence. In considering whether to make an order under s 4(A)(i)(b), the judge noted that H 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 M was ordered to provide H with regular information about the child and contact was granted. The judge took into account that H was not the child's biological father and concluded that it would not be in the child’s true interest to invest H 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 M in the future.

In S (A Child), Re (Rev 1) [2013] EWHC 1295 (Fam), [2013] All ER (D) 76 (Jun) the mother (M) was a Columbian citizen married to a British man (H). The child (S) was born shortly after the start of their relationship and H was named as S’s father on the birth certificate (although he was not the biological father). H also had parental responsibility under Columbian law. M and H separated when S was five whereupon M made an application to relocate S to Columbia where she had a large extended family and better employment prospects. H opposed M’s application and made an application under s 4A of CA 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 M’s agreement, the court granted parental responsibility to H which was considered appropriate in the light of H’s attachment and commitment to the child.

Contact & 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 regarding their step-child in the following situations:

i. If they were married to, or in a civil partnership with, the natural parent and the step-child was a child of the family (s 10(5)(a) and (aa) of CA 1989).

ii. If the step-parent had lived with thestep-child for at least three years (s 10(5)(b)).

iii. If the step-parent has parental responsibility for the child by virtue of an order made under s 4A of CA 1989 (in which case the step-parent is entitled to apply for a s 8 order).

iv. If 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, the Child Support Agency cannot make an order against 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 taken into account the factors set out in ss 25(1) and (3) and 24(4) of 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 Sch 1 of CA 1989 can also apply to step-parents where the child has been treated as a child of the family. Schedule 1 is usually invoked 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 which 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) of Sch 1 of CA 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.

It should also be noted that 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, s/he can potentially make an application to the court under the Inheritance Act (Provision for Family and Dependants) Act 1975.

Conclusion

Many step-parents have little or no awareness of their rights and responsibilities and are often unaware of the legal implications of their family relationships. Given the prevalence of step-families in modern family life, this is likely to be an area of law with increasing practical significance for natural parents and step-parents alike.

This article was first published in New Law Journal, 31 January 2014.