Around 1.1m people in England and Wales live in step-families and it is one of the fastest growing family types in the UK.  Within five years of going through a separation or divorce, up to 50% of parents will have remarried.

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More and more families have evolved from couples coming together who already have had children; often separated or divorced from the other biological parent who has either died or is no longer actively present in their children’s lives.

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As a step-parent however, it is imperative to know that you do not automatically have the same legal rights and responsibilities as your partner or the child’s other parent (if there is one).  This is important to note for a number of reasons including:

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- Despite being a de facto parent, if you and your partner separate you would not automatically be able to see the child/ren if they did not agree (or in the absence of a court order), nor have any say or decision making in respect of their welfare;

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-  If you make a Will without stipulating so, your step-child would not automatically inherit and vice versa;

-  This would also apply if you died intestate (without a Will);

- You do not automatically have parental responsibility (PR), which permits the rights and responsibilities to make welfare decisions, despite perhaps on a practical level, day to day making these decisions and having that role.

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As such, there are many more families who choose to formalise the legal status of these family structures by adopting their step-children. You don’t need to be biologically related to your children to be their parent.

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Many parents who live in blended families are not aware of this distinction and do not feel the need to formalise the relationship between them and their children.  But, for many step-parents, however, being recognised as your step-child’s parent is important not only for you, but also their own understanding of their family structure. There is a clear process of how to go about adopting your step-child. The process is as follows:

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Eligibility

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- You as the adopting parent must be at least 21 years old;

- You must be married or in a civil partnership with the biological parent with whom the step-child also lives. Or in what is described as an “enduring family relationship” (having cohabited for at least 1-2 years);

- You must be habitually resident in England and Wales for at least 12 months;

- You must have lived with the step-child for at least six months before your application;

- You will need to notify your local authority in writing of your intention to apply to the court for an adoption order, at least three months prior to making the application; and

- The child must be under 18 years old at the time of the application, and some local authorities advise making the application at least 12 months before the child’s 18^th birthday.

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Process

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You will need to apply for an adoption order from your nearest Family Court.  Prior to a Judge considering your application you will need to undergo a thorough assessment conducted by your local authority.

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Your local authority will conduct an assessment and provide a report to the Family Court based on your circumstances and whether you are a suitable candidate to adopt your child.

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The report will be based on assessing a number of things including your relationship with the other parents, any other children, and the family dynamics.

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Some parents have found the assessment to be intrusive as the questions will include details of your personal relationships, particularly the adopting parent’s relationship with the birth parent with whom they live, the financial stability of the family, and the wider kinship relationships. For adopting parents who are unmarried, they must convince the local authority reporter and the court that they are in a long term and enduring relationship.

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‍Consent to the adoption

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The child’s birth parents and anyone else who has PR will need to consent to the adoption.  The court will need to consider the birth parents and the change to their legal status.  If the other birth parent has PR, regardless if they exercise it, then the court will still give consideration to the consequences of removing it which is the impact the making of the adoption order.

If the birth parents agree to the adoption then it is an easy decision for the court to go ahead to make the adoption order.  If the non-residing birth parent does not consent, then the court must consider the evidence whether to make the adoption order or not, and the proceedings will be prolonged and become more costly.  

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The primary element of the court’s decision will be whether the making of the adoption order will be in the best interests of the child. To assist in making this decision, the court will appoint a reporting officer who is usually a member of CAFCASS (Children and Family Court Advisory Support Service).  This reporter will represent the child’s voice in the proceedings and represent their interests and (where appropriate) find out their views – their “wishes and feelings” on the proposed adoption. Depending on how old the child is will determine how much weight the court places on the child’s views.

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The legal process

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The timing of the legal process will depend on whether the birth parents consent or not.  This will determine how many hearings are required.  

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There will be at least two hearings, the first directions hearing, where the court will appoint the CAFCASS reporter.  A timetable will then be set for statements and deadlines for filing.  The reporter will also file their report which will  consider the local authority’s views and those of the family and any background checks.  If the matter is straightforward there may not need to be many more hearings, but that will be case dependent.  

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Ultimately, the court must be satisfied with the local authority’s report and the CAFCASS reporter’s statement and if they decide that it is in the child’s best interests, they will make the adoption order.

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The effect of making an adoption order

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If the court makes the adoption order, the applicant will become the child’s legal parent along with the resident birth parent. The adoption also removes PR from the non-resident birth parent.  The applicant’s wider family would then become the child’s grandparents and the child would then be able to receive inheritance rights from you, even if you were to separate from the resident birth parent.

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You will also legally become financially responsible for that child.  You will have PR in the same way as the birth parent and have all rights and responsibilities that go with it which enable you to make welfare decisions.

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Is step-parent adoption the only way: alternatives to adoption

Often when clients hear the advice and have a better understanding of the process, particularly the detail of the assessment they change their minds on the adoption. Another reason is the finality of the loss of PR for the non-resident birth parent and what that means, not only to the birth parent but to the child, which is a very serious consideration.

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Sometimes the non-resident birth parent is absent but their whereabouts are known.  The court will expect you to use best endeavours to obtain their consent – this can then create unnecessary conflict for the child and the family dynamic.  It is important to consider all options and there are alternatives to adoption, particularly in terms of obtaining PR, such as entering into a PR agreement, or if through the court system, a PR order - or if there are more substantive issues to be regulated, a child arrangements order.

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There are a variety of options and so it is important that you decide what is right for you, the adoptive children and the rest of your family.

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For any query or further information on the matters covered in this insight or to speak to a solicitor regarding adoption, please contact family@sheridans.co.uk.