6 June 2022

Mind The Step: Understand your rights and obligations as a step-parent

It is now finally accepted that there is no such thing as a “typical” family. Families comprised of step-children, half-siblings and non-biological parents – so-called “blended” families – are the norm for many across the country, including our clients.

Yet despite step-parents being a common feature in modern families, their rights, obligations and legal relationship with the children of the family are often misunderstood. This is, not least, due to the confusing amalgam of legal and cultural language in our lexicon, and the often overlapping roles of biological and non-biological parents.

Who is a “step-parent”?

To be a child’s step-parent, an individual must be married to, or in a civil-partnership with, one of the child’s biological parents. Living with a child or their parent is not sufficient.

However, acquiring step-parent status does not automatically bestow any rights or impose any obligations on an individual in respect of a child. Step-parents have no legal obligation to make financial contributions towards their step-child’s life, nor do they have Parental Responsibility (“PR”) for their step-children. This means that, in legal terms, step-parents do not have the rights, duties, powers or responsibilities that a parent has. In the absence of an agreement or court order to the contrary, therefore, a step-parent is in the same legal position as a parent’s unmarried partner.

Of course, this does not negate the often significant bond between a step-parent and step-child, nor does it mean a step-parent cannot play an important part in their step-child’s upbringing. However, it can pose practical issues; for example, a step-parent has no legal right to be involved in decisions about a child’s schooling and medical treatment.

Can a step-parent acquire Parental Responsibility?

Should parents and their new spouses wish to formalise the role of the step-parent, there are a number of ways in which this can be achieved:

  1. Signing a Parental Responsibility Agreement. Entering into a Parental Responsibility Agreement with a child’s parent (or both parents, if more than one has PR) will give a step-parent PR for the child. This means they will have the same rights, responsibilities and authority as the child’s parent, and that they can, for example, be involved in decisions about the child’s health and education. Acquiring PR in this way will not extinguish anyone else’s PR for the child. It will, however, require the consent of both the child’s parents, which is not always easy to obtain.
  2. Obtaining a Parental Responsibility Order. If one of the people who already has PR declines to enter into a Parental Responsibility Agreement with a step-parent, the step-parent can apply to the court for PR. When considering an application, the court will consider the step-parent’s commitment to the child (including to their welfare and their maintenance), as well as the step-parent’s attachment to the child and their reasons for applying. This is a more complex route than signing a Parental Responsibility Agreement, as it will involve going to court. Every person with PR for the child must be named as a respondent to the application and will have an opportunity to oppose it.
  3. AdoptionThis is the most drastic route to obtain PR, as it will involve extinguishing the PR of the parent who is not married to, or in a civil partnership with, the applicant step-parent. It is only likely to be appropriate where the other parent has died, or where there is some other reason that they cannot play a meaningful role in the child’s life.

Alternatively, a step-parent may consider that they have sufficient responsibility for their step-child under the powers delegated to them by their spouse. It is common for parents to delegate their PR informally for limited periods. For instance, a parent going abroad on holiday and leaving a child in the care of a step-parent is effectively delegating their PR to the step-parent for the time they are away, so that the step-parent can deal with the child’s school and GP. However, the parent would not expect the step-parent to enrol the child in a new school or arrange for them to have elective surgery without consultation. Such informal and limited delegation of PR is legislated for under sections 2(9) and 3(5) of the Children Act 1989. [1]

Nevertheless, if a step-parent plays an active role in a child’s life, it is important that their spouse makes contingency plans to ensure the step-parent has their clear authority to make decisions in their absence. It can be sensible, if a step-parent will be left in charge of the child for a significant period, for the parent to write a letter addressed “to whom it may concern”, explaining that they have delegated their PR to the step-parent for a limited period and including their own contact details, and those of the other parent, if appropriate, in case of emergency.

What happens if a parent dies?

If a child’s parent dies, a surviving parent with PR will be assumed to be the person who should care for the child, even if they have not played an active role in the child’s life until that point. This is unless there is a Child Arrangements Order in force at the date of death, naming the deceased parent as the person with whom the child is to live. In this event, or where there is no surviving parent with PR, the child will be cared for by the person who is appointed guardian for the child in the deceased parent’s will.

A parent who is concerned about the ability of the other parent to care for the child on their death should therefore take steps during their lifetime to obtain such a Child Arrangements Order or to formalise the step-parent’s role. If they are unable to do so, it can help for a parent to appoint the step-parent as guardian for the child in their will and prepare a letter of wishes setting out their concerns and their preference that the child is cared for by the step-parent in the event of their death. Whilst this appointment will not automatically take effect on the appointer’s death, and whilst a letter of wishes is not binding, such a letter and appointment can provide powerful evidence in court proceedings if a step-parent seeks to acquire PR after the appointer’s death.

In the event that a guardianship takes effect, the guardian will automatically acquire PR for the child.

What happens when a parent and step-parent separate?

If a step-parent separates from a child’s parent, they will not have an automatic right to spend time with the child, even if they have acquired PR, unless they have adopted the child. PR acquired under a Parental Responsibility Agreement or a Parental Responsibility Order does not give a step-parent any automatic rights to see the child, nor does it make them liable to pay child maintenance.

In this situation, a step-parent may wish to apply for a Child Arrangements Order to be named as the person with whom the child is to live, or a person with whom the child is to spend time. They may do so without the court’s permission if they are a step-parent (i.e., if at the time of the application they are still married to the child’s parent); if they have lived with the child for three years (and such period has not ended more than three months before the date of the application); if they have PR; or if they have the consent of all those with PR. All other persons must ask for the court’s permission to apply.

When considering whether to grant a Child Arrangements Order, the court’s paramount consideration will be the welfare of the child in question. This is determined by the court taking into account a number of factors, including the child’s physical, emotional and educational needs, as well as their ascertainable wishes and feelings.

There is a strong chance that a step-parent who can prove that they have an active, beneficial and long-standing relationship with their step-child will be granted contact under a Child Arrangements Order naming them as someone with whom the child is to spend time. Note that when making such an order, the court may grant a step-parent PR for the child, but this is not always the case. If the court goes further and makes a Child Arrangements Order naming a step-parent as the person with whom the child should live, they will automatically acquire PR.

This is a complex area of law. Every step-parent’s relationship with, and rights in relation to, their step-children will be different. If you are considering formalising your role in your step-child’s life, you should seek specialist advice.

If you would like further information about anything covered in this article, please contact our Family team. For advice on revising your will, appointing a guardian and preparing a letter of wishes, contact our Private Client team.

[1] Under section 2(9) of the Children Act 1989 a person who has PR may arrange for some or all of their PR to be met by someone acting on their behalf. Under section 3(5) of the Children Act 1989 a person who has “care of the child” may do what is reasonable in all the circumstances for the purpose of safeguarding a child or promoting their welfare.

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