As the proverb goes: it takes a village to raise a child. With the number of blended families continuing to increase, this is a proverb that is now truer than it is metaphoric. Partners old and new pitch in with childcare along with other family members and friends. On a day-to-day basis, little thought needs to be given to the duties and responsibilities that this level of care requires. However, what happens when casual care of a child and the law collide?

Legal status for those caring for children is conferred by parental responsibility (“PR”). PR represents the legal rights, duties, powers and responsibilities of those caring for children. PR can range from decisions for a child about the mundane, such as what to have for tea, to the significant, such as which school a child should attend. Those with PR are also entitled to information about a child held by third parties, such as school reports or medical records.    

Birth mothers automatically acquire parental responsibility. Married fathers, fathers subsequently marrying the birth mother, and fathers named on birth certificates since 1 December 2003 also automatically acquire PR. Second female partners who were married or in a civil partnership with the biological mother at the time of conception also automatically have PR (unless conception was by intercourse or the wife/civil partners did not consent to conception). For others needing parental responsibility, such as grandparents, family members offering long-term lives with care, or other legal family arrangements, PR can be conferred either by court Order or by agreement between those who already have PR and who agree to grant it to others. PR is not automatically lost if circumstances change or parents separate and can only be removed by court Order.   

So what is the position concerning step-parents/long-term partners who are also caring for children in their household? PR is not acquired by step-parents marrying a biological parent of a child. Similarly, a lengthy non-marital relationship with the parent of a child does not give rise to the partner acquiring PR. Yet, it is often these individuals who are providing no less care than a parent of a child. Thousands of step-parents and partners help with the school run, doctors’ appointments, dental appointments, and feed and water children who are not their own without a second thought. This is because unconsciously PR can be delegated to a caregiver, though those with PR remain ultimately responsible for the child. If a crisis arises, however, and the only person with the child at the time is someone without PR, significant decisions relating to, say, medical care cannot be taken by that person.

Step-parents can be given PR by entering into a formal agreement with those already having PR. In the alternative, a step-parent can apply for PR under s4A Children Act 1989, but it is a provision rarely used. In some respects, this may be surprising given how involved step-parents can be in their step-children’s lives. It stands to reason, however, that if a step-parent applies to court for PR it is likely to be because one of the parents does not agree to the sharing of PR. If, fundamentally, parents and step-parents agree that all have the child’s best interests at heart, and their moral, ethical, religious and/or cultural interests align, a step-parent can surely be trusted to make the right decision in the absence of the parents?

Despite recognising that caregivers of a child can have a shared value base concerning the child, the courts have been reluctant to grant PR to step-parents where both biological parents remain in the child’s life. It is not the case that a step-parent should be given PR for a step-child as a matter of course. In R v R 2011 EWHC 1535 (Fam), the court considered a non-parent’s application for PR. The applicant had brought the child up believing the child to be his own. When the applicant discovered he was not the child’s father he applied for PR. As distressing as it may have been to the applicant non-parent, the court was concerned that granting a third person PR alongside the child’s biological parents would lead to potential conflict and that was not in the child’s interest. So far as the court was concerned, the avoidance of conflict for the child overrode the principle of an application genuinely intended by the applicant to be in the child’s best interest. 

Family practitioners do from time to time see clients who want PR granted to their new partners because of the level of involvement by their partner. If the other parent is actively involved in the child’s life and does not agree with the step-parent having PR, the step-parent’s application will be tricky and likely doomed to fail. This can be difficult for step-parents to hear when they are already caring for a child on a daily basis and so it makes sense to them to formalise that responsibility. However, there is also a ‘no Order’ principle under s1(5) Children Act 1989. This is policy that the court will not intervene and make an Order unless it can be shown that it would be in the child’s interest to do so. For obvious reasons, having three PR holders means two can always outbid one and there is a very real risk that one of the parents becomes marginalised and ostracised from decision-making concerning the child. Although those with PR can apply to the court in the event of conflict, the court will be reluctant to create a situation where one parent may be forced to have to do so because they risk being outvoted by a parent and a step-parent. Limiting the number of PR holders who are actively involved in the child’s life reduces the risk of dispute and conflict in the hope that decisions concerning the child can be more easily agreed between the child’s parents. In this respect, no Order for PR is better for the child than an Order granting PR. So far as decisions concerning children are concerned, and even with the very best of intentions, three really can be a crowd.