Should my new partner adopt my children?

Overview

Published: 05/30/2013

by Matthew Thom - Rayden Solicitors

Photos

Matthew Thom

Should my new partner adopt my child/children?

As family law solicitors, it is not uncommon to be asked if a step-parent (whether married or simply cohabiting) can or should adopt the child/ren of their partner. What is apparent from these regular enquiries is that few people understand the impact of adoption and whether it is necessary for their family unit. Unfortunately, the law in this area is unclear to the lay person and I have attempted to clarify the position in this article.

There are, inevitably, lots of things to consider for anyone who is thinking about adopting their step-child/ren. It involves a complicated area of the law. Adoption requires a court application and the involvement of Social Services. Below, I explain the advantages and disadvantages of adoption for step-parents and step-families whilst also providing details of alternative legal applications which may be made instead of adoption.

 

Advantages of adopting a step-child/ren

The main advantages of adopting a step-child/ren are as follows:-

1. The adopted child is recognised by English and Welsh law as the legal child of the adopting parent as if the adopting parent were one of the birth parents.

2. It can create some certainty for the children, particularly where there is an absent parent and the intended adopting parent wishes to take on that role in their life.

3. The step-child/ren’s legal links to their previous parent (and that parent’s family) are severed. This does not necessarily mean that contact with the other parent is cut but they are no longer legally seen as the child’s family.

4. All members of the family (including the step children) have, or can have, the same surname as the adopting parent. Adoption is not required for this as the law allows for anyone to be known by any name that they wish. However, in order to change a child’s name it is a requirement that the consent of each person with parental responsibility (usually the birth parents) is obtained first. Therefore, if it has not been possible to obtain consent then an adoption order will override the rights of the original parent because the legal ties to that parent will have been severed.

5. The step-child/ren share rights of inheritance with any other children of the family. This, for example, will mean that they share rights of inheritance with any children of the adopting parent. It is important to note that this outcome can also be achieved by way of a suitably drafted Will as well.

 

Disadvantages of adoption of step-child/ren

These disadvantages are as follows:-

1. Once the child(ren) are adopted the law no longer recognises the other birth parent as having any parental links with the child/ren. This also has the effect of cutting legal ties to any other siblings, grandparents, aunts, uncles and cousins in that birth parent’s family from the point of adoption on.

Given the draconian effect of an adoption order, step-parents considering adoption must be certain that they wish to take this step and ensure that it will benefit the children involved. Furthermore, it is likely that the adopting parent will need to consider whether the other parent is to retain a level of contact with the children and, if so, this will need to be taken into account as well.

2. Once the child/ren is/are adopted by the step-parent the adopted child/ren lose any rights to maintenance or inheritance from the other birth parent or that parent’s family which will include grandparents and such like. This, again, is a significant point which must be considered by step-families when considering whether to make an application for adoption.

3. If, and when, the child/ren are adopted by the step-parent then it can be confusing for the child/ren involved as they may not understand the legal ramifications or the step-family’s reasons for taking such a step. It is important to bear in mind that the process may need to be explained to the child/ren along with the reasons for taking such action, particularly if the other parent still has contact with them.

 

What is the result of an adoption order being made for a step-parent

If an adoption order is made by the court then the step-child will have a legally permanent relationship with the step-parent who has obtained the adoption order. This will result in the birth parent and their partner/spouse (i.e. the step-parent) sharing Parental Responsibility for that child from that point on.

It is important to note that there is no automatic right to adoption and it is not appropriate in every family. It is the local authority’s duty to investigate every family that intends to make an application for an adoption order and they must, in turn, prepare a report for the court of their findings in respect of the family. As such, step-families considering such an application should bear in mind that a social worker will be involved and will need to make several visits to a family and make various checks in relation to their background.

 

Alternatives to adoption

There are many alternatives to adoption which can provide the same or similar rights and responsibilities which are sought by step-parents. Some of the alternatives are:-

1. A Parental Responsibility Agreement or Order.

Parental Responsibility is commonly defined as all the rights and responsibilities that in law a parent has for a child. It enables a parent to share in the big decisions concerning the upbringing of a child such as their medical treatment, how they are educated and what name they are known by.

The birth mother automatically obtains Parental Responsibility at birth. A birth father commonly attains Parental Responsibility through marriage to the mother and/or being named as the father on the child’s birth certificate.

It is common for step-parents to want to have this responsibility so that they can make decisions when, and if, the need arises for a child who is in their care.

A step-parent can be granted Parental Responsibility by entering into a formal agreement with all other parents with Parental Responsibility (most likely the birth mother and birth father) or by making a separate application to the court for a Parental Responsibility Order. The court regularly grant step-parents Parental Responsibility as they recognise the important role that step-parents play in children’s lives and understand how important it is for such a party to have responsibility when the children are in their care on a regular basis.

2. A Residence Order

A Residence order is an order which defines where that child or children resides on a permanent basis. If the step-parent successfully applies for a Residence order they will achieve Parental Responsibility at the same time

It should be noted that this type of application can be complicated as it is often contested by the non-resident parent. Furthermore, parties will need to be prepared to deal with any arguments raised by the non-resident parent at court as part of the application which can be daunting. If parties are considering making this type of application then legal advice is generally recommended.

3. No Order

Lastly, step-parents may decide that there is no immediate need for any order to be obtained from the court. This may not, at first instance, appear to be an option but parties should always bear in mind that the option of doing “nothing” can be occasionally be the right decision especially in matters relating to children and the courts.

This option is supported by the courts as they operate on a “no order” principle which means that they will only make a court order in relation to children when it is deemed necessary. Occasionally, it is sensible to wait before any applications are made so as to ensure that the step-family functions in the long term and contact and ties are maintained with the non-resident parent or their families.

 

Requirements before a step-parent can apply for an adoption order

An intended adoptive parent can apply to adopt a child or children if, and when, the following criteria are met:-

 

1. The applicant is 21 years of age or over;

2. The applicant is married to the resident birth parent, or the applicant is living with the resident birth parent in an enduring family relationship, which is likely to mean a period of at least 6 months to 1 year (longer in the case of some local authorities);

3. The applicant resides in the British Isles or has been habitually resident there for at least a year;

4. The applicant has been continually living with the child for at least 6 months;

5. The applicant has notified the local authority in writing of their intention to apply to court for an adoption order at least 3 months before submitting an application to the court;

6. The child is 18 years of age or younger.

 

The process of making an application

In order to make an application for an adoption order it is necessary to make enquiries with your local authority and register an interest with them in respect of step-parent adoption.

 

The local authority is then under a duty to investigate whether adoption is appropriate in your circumstances and will, most likely, undertake an assessment process similar to the one outlined below:-

 

1. Child’s best interests

The local authority will need to ensure that the intended adoption is in the children’s best interests. The court will want to establish that the adoption is the best order for that child/ren for the rest of their life. As such, the local authority will inevitably wish to see the child/ren alone in order to discuss matters with them including the truth about his/her or origins and their relationships within the family generally;

 

2. The child’s birth history

It is considered important that a child has a record of his or her early life and that you have discussed matters (and kept a record of it) with them in significant detail. The record of their life can include photographs, documents, mementos and details of significant people in their life. Occasionally, families will collate this information into a book for future reference by the child.

 

3. Relationships within the family

The local authority and the court will require evidence of the family relationships and will inevitably try to determine the applicant’s suitability for an adoption order by establishing evidence of stability and permanence in the family relationship.

 

4. Interviews of both birth parents

The local authority has a legal duty to interview both parents and anyone else who may have Parental Responsibility for the child in order to ascertain their views as to the intended adoption order. This will require you to make clear whether the birth parents are in agreement with your application and, if so, the court will then require written consent of all persons with parental responsibility for that child.

 

In the event that no such agreement is reached then it is likely to be a contested application and legal advice is recommended. Rayden Solicitors can assist you with this should the need arise.

 

It should be noted that, even if the absent birth parent does not have parental responsibility, they will need to be contacted by the local authority as they have legal rights as a result of being a birth parent of that child. If, as is common in such applications, the absent birth parent’s whereabouts are unknown then the court will want to know that all possible efforts have been made to find the absent parent.

 

5. The extended family

It is likely that the social worker from the local authority will need to see any other children of the family and, potentially, other members of the family who will be involved in the child’s life. This may involve grandparents, aunts, uncles and cousins.

 

6. References

It is likely that the local authority will require you to provide names and addresses of three referees which can support your application.

 

7. Contact arrangements

As outlined above, the local authority will endeavour to speak to both birth parents about the intended application and this may then lead to discussions about the contact arrangements that are in place for the child. If there are no contact arrangements in place and/or the absent parent’s whereabouts are unknown then the effect of the application should be considered very carefully by the adoptive family because it may encourage that absent party to renew their relationship with the child at a later stage.

Once the local authority has considered the intended application the parties should be in a position to lodge their application to court subject to the response received from the local authority. A court fee is payable in order to issue the application albeit it can be waived in certain circumstances.

 

An application to the court can be made without legal advice and there is information available directly from the court and often local authorities in this respect. Parties should consider taking legal advice when considering adoption but may find that the local authority will be able to offer adequate support in the absence of independent legal advice. If, however, the parties have any concerns about the process or queries then legal advice can be obtained at any stage during the process.

 

Once the local authority has submitted its report to the court in relation to whether the application is appropriate, the court then considers the contents of your application and the report in order to make a decision. This may involve several hearings if the application is contested.

 

Summary

An adoption application is, potentially, a complicated application to make for a step-family. Step-families must consider the legal implications of obtaining an adoption order and consider whether this will benefit the child/ren involved.

 

The impact of an adoption order may benefit children in some circumstances where, for example, the other parent has not been involved in their life and they want some certainty in respect of their family unit.. It should always be born in mind that an adoption order can often have negative implications for the child/ren including the loss of their legal ties to the other birth parent and their family. This also means that they will lose any entitlement to maintenance from that other parent and/or inheritance from them or their extended family.

 

If it is considered beneficial for an adoption order to be applied for by the step-family then consideration will need to be given to the process outlined above and information obtained (if it is not already available) from the other parent. If an agreement can be reached with the other parent for an adoption order to be made then the process may well be simple. Otherwise, if an agreement cannot be reached then it may be a contested application and can then be both time consuming and costly.

 

Step-families should also bear in mind the alternatives that are available including parental responsibility agreements/orders and residence orders. The alternatives can often allow the parties to achieve the same aims in a far less draconian manner which is, occasionally, best for the children. If, however, the step-family considers that the benefits of adoption are in the children’s interest then this option can be explored further. Again, it may be worthwhile discussing the matter with the local authority if an application is being considered and/or a solicitor who can discuss matters in more detail with you.

 

Should you require further advice in relation to this issue then please do not hesitate to contact Rayden Solicitors for further advice.

 

By Matthew Thom

 

Matthew trained at a respected law firm in Buckinghamshire where he qualified into their family department. He has gained extensive experience in all areas of family law including divorce, matrimonial finances, cohabitee disputes and Children Act claims including contact disputes and residence issues. Matthew has experience at representing clients in proceedings at the local county courts and the Principal Registry. Matthew aims to support clients through to a successful conclusion by agreement or, where necessary, through the courts. He is willing to take a strong approach if and when required in order to achieve a fair outcome for his clients.

 

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.