Stepfather adoption: the pros and cons
There is much uncertainty around the law governing stepfathers and equal uncertainty about the process of adopting. We have turned to experts in the field to set out some of the pros and cons of adoption.
What effect does a stepfather adoption have?
The legal position for a stepfather in relation to his stepchild can be fundamentally altered through an adoption order. This will extinguish parental responsibility held by everyone other than the stepfather’s partner. The stepfather will obtain parental responsibility and will be treated in law as if he were the child's birth parent (s67(1) Adoption and Children Act 2002 (ACA)).
The child’s ties with the person whose parental responsibility has been discharged as a result of the adoption are likely to be severed. His or her surname could be changed. In the event that the stepfather and the mother separate, the stepfather would remain the child’s ‘parent’ in the eyes of the law and would therefore continue to have all the associated rights and responsibilities, including the responsibility to financially maintain the child.
What are the requirements for making the application?
The prerequisites for the application are
- the applicant must be over 21 - s51(2) ACA
- the applicant must be domiciled in the British Isles or have been habitually resident in the British Isles for a year prior to the application - s49(2) ACA
- the subject child must be below 18 at the time of the application - s49(4) ACA
- the subject child must have lived with the stepparent for at least six consecutive months prior to the application - s42(3) ACA
- the applicant must give the appropriate local authority written notice of his application to adopt at least three months and no more than two years prior to the application in order that it may produce a report as to the suitability of the applicant to adopt the child - s44(2), (3), (9) ACA
For an adoption order to go ahead, it is necessary that each parent consents to the order, or that the court dispenses with that consent (s47(2) ACA). Here ‘parent’ means a parent with parental responsibility as defined in the Children Act (s52(6) ACA). It is therefore essential to consider carefully the position and whereabouts of the other parent of the child. If a parent refuses to consent, the stepfather will need to ask the court to dispense with that consent. This would entail filing a statement setting out the reasons why the court should do so. If the parent cannot be located, evidence that all reasonable attempts to locate him have been undertaken must be provided; if just one avenue has not been explored, then the court will refuse to dispense with the birth father's consent.
It is worth noting that consent may be given without knowing the identity of the stepfather (s52(5) ACA).
The court, in determining the application, will have as its paramount consideration the child’s welfare throughout his or her life. It will take account of the factors listed at s1(4) ACA.
What about acquiring parental responsibility without adopting the child?
A stepfather can acquire parental responsibility by entering into a parental responsibility agreement with all individuals who have parental responsibility for the child. If that agreement is not forthcoming, an application must be made to the court. Alternatively, parental responsibility can be acquired by being named in a Child Arrangements Order as a person with whom the child is to live (NB: the parental responsibility will only last as long as the order remains in force).
What are the advantages of stepfather adoption over applying for parental responsibility?
The benefit of an adoption order is the certainty it affords the child and the family. Since the stepfather is treated in law as if he is the child’s birth parent, the responsibility he assumes is significant. This could be an indicator to a child of the stepfather’s desire to be a permanent fixture in his or her life and provide the mother with reassurance that her partner is fully committed to the child.
However, if a stepfather is simply looking to be put in a position where he can make day to day decisions about a child’s upbringing, then a parental responsibility agreement may be a more cost effective and swifter solution than adoption.
A stepfather adoption can become significantly more complicated if the birth father with parental responsibility refuses to consent to the order. Convincing a court that the father’s parental responsibility should be revoked in favour of a stepfather is a high bar indeed and the court will be concerned with the proportionality of the interference in the child and father’s life. In circumstances where a birth father with parental responsibility for a child is not involved in that child’s life, obtaining a parental responsibility order may be a more straightforward and cheaper exercise than seeking to discharge the birth father’s parental responsibility through an adoption order.
The legal advice in this article has been prepared byKerry Fretwell and Lee Henderson of Penningtons Manches LLP. The authors of this article can be contacted for further information. If you would prefer some legal support nearer home, www.thefamilylawpanel.org is part of the www.onlydads.org organisation and offers free initial conversations.