Adoption by step-parents

Modern families take many different forms.

Take the following as examples.

• The traditional family where the heterosexual partners are married and mother gives birth to a child or children, of whom her husband is the father.
• The same as above but the parents are not married.
• Same sex couples, male or female, either married or in a civil partnership or where there is no formal legal arrangement, with no children
• Same sex couple but with a child or children born to one of the couple when previously in a heterosexual relationship. 
• Save as above, but with an adopted child or children.
• A female same sex couple where one of the females has given birth to a child from a known or unknown father.
• Same as above, but both females have given birth to a child from a known or unknown father. The father may or may not be the same person as the father of the child born to the other female in the same sex relationship.
• A single former spouse or partner living alone.
• A former spouse or partner with no children now living with a new partner.
• A former spouse or partner with a child or children now living with a new Partner.

Family lawyers often have to advise on the legal implications of the dynamics in such families.

It is, however, the last example which gives rise to the most frequent wish to formalise the relationship between the step parent and the child of a new partner.

The step parent and the birth parent of the child often wish for the step parent to adopt the child, feeling that in that way the new family will be “complete”.

The legal position of the step parent

The step parent has no formal legal status in relation to the stepchildren unless

• both of the natural parents agree in writing to the step parent having parental responsibility
• there is a court order for the step parent to have parental responsibility (very unlikely to happen if one of the natural parents does not agree)
• there is an adoption order to the step parent

What is the legal effect of an adoption order to a step parent?

The making of an adoption order to a step parent will result in the step parent obtaining parental responsibility for the child. The legal relationship of the natural parent, other than the adopter’s partner, to the child will cease. The step parent will be treated in law as if he were the child’s birth parent.

What rights in relation to the adopted child does the step parent acquire after adoption?

As the step parent, after adoption, is in the same position as he/she would be as if they were the natural parent. All the rights and duties of a natural parent can then be exercised by the step parent. The step parent can then give consent for medical treatment, make important decisions concerning the child’s upbringing such as schooling, arrange for the child’s name to be changed, take the child to live abroad etc. Most such decisions will, of course, need to be made jointly with the child’s natural parent with whom the step parent is now living.

What would happen if the step parent and the natural parent separated after the step parent adoption?

In law, the step parent would be in precisely the same legal position as the natural parent. Decisions relating to the child after separation would have to be made on what was deemed best for the child.

Is it straightforward to obtain a step parent adoption order?

The short answer to this question is “no”.

As with all decisions which have to be made in connection with children, every aspect of such a major change in the legal status of and arrangements for the child and his/her parents have to be considered. The paramount consideration is the welfare of the child for the rest of his/her life (as best as can be ascertained).

What are the legal requirements for making an adoption application?

• the applicant must be over 21
• the applicant must be domiciled in the British Isles or have been habitually resident in the British Isles for a year prior to the application
• the child must be below 18 at the time of the application
• the child must have lived with the step parent for at least six consecutive months prior to the application
• the applicant must give the local authority written notice (at least three months and no more than two years prior to the application) of the proposal to apply for an adoption order so that the local authority can undertake enquiries and produce a report as to the suitability of the applicant to adopt the child and state its opinion as to whether an adoption is likely to be in the best interests of the child.

Do the natural parents have to agree to the adoption?

For an adoption order to be made, it is necessary for each natural parent to give their formal written consent. If they do not do so, the court has the power to allow the adoption to go ahead if it thinks that to do so is in the interests of the child.

Conclusions

It can be seen that the making of an application for an adoption order is a very sensitive and sometimes difficult process. It involves the making of decisions which are likely to affect a child for the rest of his/her life. The importance of taking advice from a practitioner experienced in this area of the law cannot be over emphasised.

For more information or some preliminary confidential advice please contact Rachael Shearmur, Associate in our Family Team, on +44(0)1392 687634or email rachael.shearmur@michelmores.com