The question of parental responsibility for step-parents is not one that can ever be disregarded. Step-Parents can be influential on a child’s life whether that is playing an active role as one of their main carers or as a main role sharing the responsibility across a blended family.

The question then arises as to when a step-parent should obtain parental responsibility (PR) and if they should.

I recently had a case where a step-parent applied for parental responsibility and a child arrangements order for a child they were not the biological parent to. The question then arose, when can step-parents apply for PR? Should they be able to? And if not, what avenues do they have open to them.

Parental responsibility for step-parents: When can a step-parent apply for PR?

The first question can be answered by looking at statue. S.4A of the Children Act 1989, sets out the relevant law for when a step-parent can apply for PR:

Where a child’s parent (“parent A”) who has parental responsibility for the child is married to , or a civil partner of, a person who is not the child’s parent (“the step-parent”)
parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or
the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.

An agreement under subsection (1)(a) is also a “parental responsibility agreement”, and section 4(2) applies in relation to such agreements as it applies in relation to parental responsibility agreements under section 4.

A parental responsibility agreement under subsection (1)(a), or an order under subsection (1)(b), may only be brought to an end by an order of the court made on the application—
of any person who has parental responsibility for the child; or
with the leave of the court, of the child himself.

The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application

What statue tells us is a step-parent can apply only when they are married/civil partner to a parent who has parental responsibility of a child. This means that where a step-parent has played a pivotal role in a child’s life and then their relationship ends with the parent, that step-parent is no longer entitled to PR.

This was addressed by Peter Jackson LJ, in the case of Re R (Parental responsibility) [2011] EWHC 1535 (Fam) at paragraph 36 where he states:

“It can therefore be seen that in normal circumstances the beneficiary of such an order will be a person who might be described as an incoming step-parent who wish to bring up a child together with the parent with parental responsibility and will be centrally participating in the upbringing of the child in future”

The court when considering an application for PR by a step-parent will therefore consider the welfare of the child, the no order principle, and the welfare checklist (albeit it is not bound by this). Ryder LJ in Re M (A Child) (Parental Responsibility Order) [2013] EWCA Civ 969 gave a non-exhaustive list of factors to consider:

the court should take into account the degree of commitment that the father has shown towards the child, the degree of attachment that exists between him and the child, and his reasons for applying for the order (Re H considerations)
it is a relevant, but not overriding, consideration that the court considers the prospective enforceability of parental rights
it is important to observe the interrelation between the rights and status, the exercise of those rights and restrictions upon the exercise of those rights that exist or that can be imposed—one of the examples given of this was the ‘cruel and callous’ behaviour of a father who abducted a child from her mother for a few days who was not granted parental responsibility and other circumstances where a misuse of ‘rights’ could be controlled by a specific issue or prohibited steps order or in the last resort the discharge of the parental responsibility order
while not wholly irrelevant to each other, a ChA 1989, s 8 welfare decision and a decision whether to grant the father parental responsibility are separate and distinct questions to be examined from different perspectives
where a concerned though absent father has established a degree of commitment to his child, there is a degree of attachment between them and his reasons for applying for parental responsibility are neither demonstrably improper nor wrong, then prima facie, it would be in the interests of the child for a parental responsibility order to be made and the court will need cogent evidence that the child’s welfare would be adversely affected before considering otherwise

This clearly identifies where a step-parent can apply for PR and how it can be obtained. The question the arises, what happens when a step-parent and parent with PR are no longer together?

Under s.10 of the Children Act 1989, the court may make a s.8 order with respect to any person who is entitled to apply for a s.8 order or has obtained the leave of the court to make one.

Under s.10(4) and s.10(5) we are told who is entitled to apply for a child arrangements order:

(4) The following persons are entitled to apply to the court for any section 8 order with respect to a child—

any parent, guardian or special guardian of the child;

(aa) any person who by virtue of section 4A has parental responsibility for the child;

any person who is named, in a child arrangements order that is in force with respect to the child, as a person with whom the child is to live.

(5) The following persons are entitled to apply for a child arrangements order with respect to a child—

any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;

(aa) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

any person with whom the child has lived for a period of at least three years;
any person who—
in any case where a child arrangements order in force with respect to the child regulates arrangements relating to with whom the child is to live or when the child is to live with any person, has the consent of each of the persons named in the order as a person with whom the child is to live;
in any case where the child is in the care of a local authority, has the consent of that authority; or
in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
any person who has parental responsibility for the child by virtue of provision made under section 12(2A).

Where a person not listed above needs permission, for example, a step-parent who no longer lives with the child, they can make an application under s.10(9) which demonstrates what the court should have regard to when considering an application:

(9) Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to—

the nature of the proposed application for the section 8 order;
the applicant’s connection with the child;
any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and
where the child is being looked after by a local authority—
the authority’s plans for the child’s future; and
the wishes and feelings of the child’s parents.

The court needs to consider the application for leave and the factors listed above. However, this is not an exhaustive list. As stated in Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737. The court should consider what may follow if an application for leave was granted, for example, at paragraph 37 Black LJ said:

“It is logical that a judge determining an application to become a party to proceedings should have an eye to what may follow joinder. To illustrate this with an obvious example, there would be no point in joining someone as a party if they would then inevitably be refused leave to bring an application in relation to the child and would have no other legitimate role in the proceedings.”

Black LJ went on further to say that s.10(9) is not a ‘test’. It is a list of factors for the court to have regard to [48]:

“As I said earlier, I do not see section 10(9) as containing a test. By picking out some factors to which the court should have “particular regard”, it acknowledges by implication that there may be other factors which the court has to consider. It would be wrong, in my view, to try to list or limit these factors which will vary infinitely from case to case. One amongst them is plainly the prospects of success of the application that is proposed; leave will not be given for an application that is not arguable. I do not intend to attempt a definition of what is arguable but I would make a few observations before I leave the question of the proper approach to an application to which section 10(9) applies, whether directly or through an application to be joined as a party with a view to seeking the sort of outcome that could be the subject of a section 8 order.”

The court’s consideration when addressing whether leave should be permitted is not s.1(1) of the Children Act 1989. The paramount principle only applies in relation to the upbringing and welfare of the child. In this context, it is not relevant in the decision as to whether leave should be granted (Re A (minors) (residence order) [1992] 2 FLR 154, [1992] 3 All ER 872).

A further point that should be included is if a child arrangements order is made for a step-parent. S.12 of the Children Act says if a step-parent is named in a s.8 order as the person with whom the child is to live then they will be granted PR only for as long as the child arrangement order remains in force so far as providing for the child to live with that person, and PR will cease upon the ending of that provision of the child arrangements order.

S.12(2A) of the Children Act 1989, provides that where the court makes a child arrangements order and a person who is not a parent or guardian of the child concerned (which includes step-parents) is named in the order as a person with whom the child is to spend time or otherwise have contact with but that person is not named as a person with whom the child is to live (formerly a contact order) the court may provide in the order for the person to have parental responsibility for the child while that part of the child arrangements order continues.

It seems implied that where the court would consider ‘should’ PR being provided to a step-parent who has a spend time order made, the court will need to consider the points set out in Re M (A Child) (Parental Responsibility Order) [2013] EWCA Civ 969.

It can therefore be concluded that despite no longer being with the parent who has parental responsibility for the child, a step-parent who can demonstrate their role within the child’s life can be entitled to gain PR. It may take a longer process than when remaining married to the parent, but hope should not be lost, a step-parent still has an opportunity to be involved in a child’s life.

Ben Butler is a member of our Family Law team. Ben specialises in private children work, domestic abuse, non-molestation and occupation orders, and all matters in relation to family finance. If you’d like to discuss a case with Ben, please contact our clerks.