We are sometimes asked to advise in relation to the prospect of a step-parent adopting their partner’s child from a previous relationship. Before getting too far into this article, note that in circumstances where the child has a proper relationship with their biological parent, it is very unlikely that the Court would make an adoption order.
There are a few reasons why a step-parent might be giving thought to an adoption. It may deal with some issues concerning the prospect of inheritance. It may be from an emotional perspective (giving the child a greater sense of security), or it could be to obtain Parental Responsibility.
Parental Responsibility is defined in Law by the Children Act 1989 as: “all the rights, duties, powers, responsibilities and authority which by Law a parent of a child has in relation to the child and his (or her) property”
People with Parental Responsibility are entitled to have a say in major decisions concerning the child, e.g. schooling, religious upbringing, and consent to medical treatment. It confers a right to be consulted in these decisions (and others).
An adoption order transfers Parental Responsibility to the adopter, the step-parent, who will share their Parental Responsibility with their partner. An adoption order changes the child’s legal status and means that the child becomes a permanent and full member of the family unit with the step-parent. All legal ties with the child’s other birth parent will be broken.
The Court will only make a step-parent adoption order once it has made extensive enquiries and only if it considers it to be in the child’s best interests (a fundamental foundation of the Children Act 1989).
What are the alternatives to an adoption order?
If the step-parent is seeking to obtain Parental Responsibility, then there are mechanisms other than an adoption order. An application could be made to the Court, or an agreement can be signed between the step-parent and the child’s birth parents such that the step-parent should share Parental Responsibility with them. This would enable a step-parent to exercise Parental Responsibility and to be involved in decision making for the child as if they were a natural parent.
As will be apparent, an adoption order is the most permanent and irrevocable method for a step-parent to gain Parental Responsibility.
In order to apply for an adoption order, the step-parent must:
- Be over 21;
- Live in the UK or have been habitually resident here for a year;
- Be the partner of the parent whose child they wish to adopt.
- Provide at least three months’ written notice to the child’s Local Authority that an application is going to be made
In addition, the child must have lived with the step-parent for six months before any application can be made.
The application is made on Form A58 and at the time of writing, there is a fee of £183. If the Applicant is on low income or in receipt of certain benefits, fee exemption can be sought by submitting Form EX160. If you are the person making the application, you will be referred to as the “Applicant” and the other parents with Parental Responsibility will have the application sent to them. They will have a chance to prepare a response to it. If the birth parents already have Parental Responsibility, they will become “Respondents”. If one birth parent does not have Parental Responsibility (e.g. they are not named on the birth certificate), they are not automatically made a Respondent, but if their identity and whereabouts are known, they will, in all likelihood, be made a formal Respondent at some point in the process. It is certainly good practice to notify birth parents.
The Local Authority will appoint a social worker to prepare a report. This should happen upon receipt of the initial notification of intention to issue an application, but, in some cases, it will not happen until a reiteration of the need for a report is given by the Court at an initial appointment.
If the child’s other birth parent (whether they are a Respondent or not) does not agree to the adoption order, and you are still asking the Court to make the order (referred to as “dispensing with consent”), the Applicant must complete a statement summarising the case and the facts and the reasons why you say the Court should still make an order in the face of objection.
Once it receives the application, the Court will fix a date and time for an initial appointment (variously called a “First Directions Hearing” or “FDA”), where it decides what should be done procedurally in order to move the case forward. It would order reports to be prepared and will also cross-reference the checklist in the Adoption and Children Act 2002, which a Judge will have to consider when making a decision on the application. The Local Authority will interview the Applicant and all interested parties in the context of the preparation of the report and the report will contain detailed information and, in the majority of cases, a recommendation.
The Court will list a final hearing at which the Applicant and the child will be expected to attend. The Court can decide that a party does not need to attend that final hearing, although this happens very rarely. The Court will want to make sure that the child understands (as far as they are able to do so) the serious and far-reaching ramifications of the order that the Court is being asked to make. The Judge will consider evidence from all relevant parties and the Local Authority report and make a final binding decision.
The first concern for the Court is the child’s welfare throughout their whole life. There is a checklist in the Children Act 1989 of matters that a Judge must look at to help them make any decision relating to children, including:
- The child’s wishes and feelings;
- The child’s particular needs;
- The likely effect on the child (throughout their life) of having ceased to be a member of the original family and becoming an adopted person;
- The child’s age, sex, background and any characteristics that the Court considers relevant;
- Any harm that the child has suffered or is at risk of suffering;
- The relationship that the child has had with relatives and with any other person the Court considers relevant, including:
- The likelihood of any relationship continuing and the values to the child of its doing so;
- The ability and willingness of any of the child’s relatives or of any such person to provide the child with a secure environment in which they can develop and otherwise meet the child’s needs and
- The wishes and feelings of any relatives or of any such person regarding the child.
The Court will also have to balance the fact that ties with the birth parent will, in all likelihood, be broken against the potential benefits to the child of being adopted. In doing this, it will examine the nature and quality of the child’s relationship with their birth parent and the family ties within the step-parental family unit. For example, if the birth parent has had very little involvement with the child for a long time, has never played any real role in their life or asserted their Parental Responsibility for them, it will make it more likely that the Judge will consider it appropriate to make an adoption order.
If the child’s birth parent is involved in their life and opposes the application, the Judge is likely to look very carefully at the motives and reasons for the application to make sure it is not being used to gain control over a child’s upbringing or to exclude the birth parent from the child’s life. Disagreements over practical arrangements or how a child should be brought up should usually be dealt with by making an application for a child arrangements order rather than an adoption order. In short, as is said at the outset of this article, if the birth parent has played a significant role in the child’s upbringing and the child has a relationship with the broader parental family (cousins, grandparents, etc.), it is most unlikely that the Court will make an adoption order.
If you need advice on contact arrangements for your children, please contact the family law team on 01732 747900 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.