Step parent adoption - a comment by Laura Carr
Posted by Melissa - April 27 2018
This morning I represented a child in relation to an application by his step father for a step parent adoption order. It was a very sad case as the child’s biological mother suddenly and unexpectedly passed away and the child’s father is unknown. It was also more legally complex than I first thought.
Step parent adoption orders are dealt with under the Adoption and Children Act 2002 (“the Act”) specifically Section 51(2) which confirms that an adoption order may be made “on the application of one person (in this case the step father) who has attained the age of 21 years, if the Court is satisfied that the applicant is the partner of a parent of the person to be adopted.” It was this last part of the statute that was troubling me. Can this step father still be considered the “partner of a parent” after the parent has died?
Section 144 of the Act provides some guidance as to interpretation of some words within the Act. Section 144 (7) simply says “a person is the partner of a child’s parent if the person and the parent are a couple”
In my view, the Act is silent on whether you are still considered “a partner” after the child’s parent is deceased and it is therefore open to judicial interpretation.
Of course, an alternative is for the Judge to make an adoption order under Section 51 (1) which provides “an adoption order may be made on the application of one person who has attained the age of 21 and is not married or a civil partner”. However, an order made under this part of the statute, would have serious detrimental implications for this step father which, as an unpresented party, he did not appreciate.
The effect of an adoption order made under Section 51 (1) is that the birth mother would have been considered a former parent and the step father would be treated as the natural father effectively meaning the birth mother never existed. If an order was made under this section, the child would lose any inheritance rights from his mother’s estate (remembering his mother has recently died) and he would also lose the allowance he is currently receiving as part of the mother’s death in service benefit. This would place the step father in significant financial hardship.
Fortunately, the Judge agreed with me that S. 51(2) of the Act was open to judicial interpretation and that the step father should be treated as being “a partner of a parent of the person to be adopted.” This means the birth mother will always remain as the birth mother and the child will not lose his inheritance rights or allowance.
Adoption law can be complex and it is important that you obtain legal advice at the earliest opportunity to ensure the best outcome for your family. If you are considering adopting a child, please contact me, or one of my colleagues Deborah Baxter or Craig Tipper, for an initial consultation.
Laura Carr, Director and Chartered Legal Executive