To a child a psychological parent may be just as important as a biological parent, sometimes more so. A parent’s partner may treat the child as their own in every way, but in the eyes of the law they do not have parental rights.

I am frequently asked to advise couples as to their options to become a ‘real family’ to provide stability for the child.

They will often want to share a household, a surname and all the rights and responsibilities in respect of the child. Many couples already have adoption in mind, but this may not be the right outcome for the child, or the adults.

An application for an adoption order can be made by a couple (either married, in a civil partnership or in an ‘enduring family relationship’) where one partner is the child’s parent and various conditions relating to age, domicile and habitual residence are satisfied. It may not be a swift and straightforward application. A Guardian will be appointed to represent the child’s interests and a social worker allocated to prepare a report about the family. The child is likely to be seen by both professionals and be asked questions about their wishes and feelings. There may be a number of court hearings before an adoption order is made.

Many couples considering adoption do so in circumstances where the child’s other parent has little or nothing to do with the child and some may hope to avoid involving the other parent. When applying the Adoption and Children Act 2002 the court only needs to consider the issue of consent to adoption as it relates to parents with parental responsibility (‘PR’). In practice however, the court is likely to direct that the parent without PR is given notice of the application and an opportunity to express their views. The social worker and/or Guardian may also contact them to find out if they object to the application. This can prompt the other parent into seeking an order for PR and child arrangements to spend time with the child. Not only will this limit the chances of the couple obtaining an adoption order, but it may be a very unwelcome outcome for them. It may also cause disruption and distress for the child.

A different option might be to obtain an order which bestows PR on the parent’s partner. A partner who is married to a parent can obtain an agreement or court order for PR under the Children Act 1989. An unmarried partner cannot obtain a stand-alone order for PR, however, the couple could seek an order that the child lives with both of them which would provide the partner with PR for the duration of the order. This approach might result in much less extensive investigation into the family by professionals and more limited opportunity for interference by the other parent.

A further option might be a change of name application to enable the child to share the surname of the couple caring for him/her. This might help the child with feelings of identity and belonging in their family unit. There is uncertainty over the extent to which fathers without PR should be involved in such applications so there is no guarantee that the court will not deal with the application without any reference to the other parent.

Each family situation is different and the outcome is likely to turn on the particular facts of the case. Couples in this situation should seek specialist advice before starting court proceedings.

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1 King’s Bench Walk reopened on Monday 6th July 2020


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