A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The world of families and relationships have developed substantially over the last couple of decades with second, third (and in the case of Elizabeth Taylor eight!) marriages being a fairly normal occurrence. Add into these relationships children from those marriages, and it can lead to circumstances where there are a number of people involved in a child's life all of whom provide love, care and who bond with that child – commonly known as a “blended family”.
In the majority of cases, both the mother and the father of a child will have Parental Responsibility (PR). This article does not address a father's acquisition of PR and assumes that from the outset both parents have PR for the child. Also, for the purposes of this article, we are using the example of the father entering into a second marriage and his wife being the only step-parent involved in the scenario. However, the reader should note that the information below applies equally to a mother's remarriage, both parties re-marrying and either party entering into a civil partnership.
I frequently encounter the father incorrectly assuming that the stepmother has PR for the child by virtue of their marriage. I cannot reiterate strongly enough that this is not the case.
Whilst a parent can delegate their PR to another person, this is not a sweeping declaration that can be conveyed upon a step-parent and should be considered on a scenario by scenario basis, e.g. delegating PR to the step-parent for the purposes of looking after the child for a couple of hours whilst the father is at work.
In some circumstances, the separation of the mother and father may be acrimonious and can often result in the mother disliking the new step-parent. Relationships can be tested further when careful consideration is not given to the aspect of PR and when one party feels that the step-parent has ‘overstepped’ their mark.
But what is Parental Responsibility and what does it do?
PR means all the rights, duties, powers, responsibilities and authority a parent of a child has in relation to the child and the child’s property by law. It enables a person to make decisions about the child’s property and welfare to include, but not limited to, religious upbringing, accommodation, education, and medical treatment. Unhelpfully these rights and duties are not specified in statute, and the guidance available comes from case law.
The following list gives some examples of decisions that are generally accepted by the court that should only be made by a person with PR and made in conjunction with all others who hold PR. They include medical treatment, applications for authorised absence from school, taking the child abroad, selecting a child’s school, immunisation, and cessation of prescribed medication. As you can imagine, some of these are decisions that a step-parent may be of the mistaken belief that they can make.
A common example is where a step-parent has signed a child’s permission slip that needs to be returned to the school. If the activity has not been discussed between the mother and the father, it may be that the step-parent has provided permission for an activity that the mother strongly disagrees with, i.e. religious education or sex education. This can not only lead to difficulties between the parents but can also lead to the school potentially having legality issues because they have accepted this consent. Another example would be where an activity centre accepts a liability waiver.
It is my view that to shield themselves from liability, a body (i.e. school or activity centre) should refuse to accept permission or consent from a person without evidence of their PR.
Which leads to the next question, how does a step-parent acquire Parental Responsibility for the child?
Before parties embark on acquiring PR, it is important that they should seek legal advice. The acquisition of PR will affect the legal position of the parents and the step-parent, and therefore it is not a decision to be made without clear understanding.
If all parties agree to the step-parent acquiring PR, they can enter into a step-parent agreement. The form is fairly straightforward to complete but does require all of the parties’ signatures to be witnessed by an official of the family court. Importantly, a solicitor cannot witness your signature. Once the agreement has been recorded, it should be filed at the Central Family Court in London. Thereafter, the agreement will be stamped with the seal of the court and sent back to the parties. The agreement will not take effect until it has been received and recorded at the Central Family Court.
So what happens when the parties can’t agree?
Well, to put it simply, the step-parent will need an order of the court that grants them PR. There are various court orders that will grant this, and we will look briefly at each one in turn.
CAO 1 "lives with"
The first is to obtain a Child Arrangements Order (CAO) that specifically names the step-parent as a person with whom the child is to live (formally known as a Residence Order). When making a “lives with” CAO, the court must also make a PR Order (if the parent or step-parent doesn’t already have PR). Importantly, the step-parent must be joined as a party to the proceedings so as to ensure that she will be named on the face of the order. Having a CAO specifying that the child is to live with the father (not naming the step-parent) will NOT convey PR to the step-parent.
CAO 2 "spends time with"
The second is to obtain a Child Arrangements Order (CAO) that specifically names the step-parent as a person with whom the child is to spend time or otherwise have contact, AND the court decides that it would be appropriate also to make a PR Order. Again, the step-parent must be joined as a party to the proceedings so as to ensure she will be named on the face of the order. It is also difficult to anticipate whether the court will deem it appropriate to make a PR Order in these circumstances. It will depend on the specific facts and arrangements of the family for example if a step-parent has been involved in a child’s life for over three years and has been having regular contact, this may be more persuasive to the court when considering making an order. Conversely, a situation where a step-parent who has only recently married the father and has not yet met the child would be less persuasive to the court.
The third is to obtain a Parental Responsibility Order (PR Order), which is a free-standing application that can be made by the step-parent without the need for a CAO application. In my experience, it is only in very rare circumstances that a free-standing application would be made. The court would consider the application, taking into account the specific facts and arrangements and will need to deem it appropriate to make an order.
The fourth is where the step-parent becomes the child’s guardian through the making of a Special Guardianship Order (SGO). This is similar to a CAO but allows the Special Guardian to exercise their PR to the exclusion of any other person with PR, except for another Special Guardian. The Special Guardian is, therefore, able to make decisions about the child’s care, schooling etc. that override the decisions and wishes of the child’s parent. Importantly a person can only apply for an SGO if they are NOT the parent of the child, so in the very rare cases in which an SGO is granted to a step-parent they would override the PR of their husband. It is my view that the court would be unlikely to make an SGO unless the husband is deceased and there is an issue about whether the child should live with the mother or the step-parent. Again, it will depend on the specific facts and arrangements of the family, and a decision will be made on a case by case basis.
Finally, a step-parent can acquire PR if she were to adopt the child. Importantly, in these circumstances, an adoption can only proceed if the mother consents to the adoption or has predeceased. This of itself is a complicated area of law, and the reader should obtain specialist advice.
In my view, it is always in the best interest of a child if the adults involved in their life can be as civil and cordial as possible to each other. It is helpful if all parties can share their views and make decisions as a “team”. There certainly are circumstances when decisions need to be made quickly, and the acquisition of PR by a step-parent can ensure that they are. However, this is not always the case, and for whatever reason, a mother may refuse to enter into a PR agreement. In those cases thought will need to be given to which legal avenue would be the most appropriate to pursue in order to acquire PR. It is advisable to seek the advice and guidance of a Family Law specialist as soon as reasonably possible.
For further information about any issues raised in this briefings, please contact Kadie Bennett.
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