Over but not out

In a world of changing social trends, the traditional perception of the family unit has been stretched to breaking point. The latest statistics show that in 2007, for the fifth consecutive year, men and women in their late twenties had the highest divorce rates of all five-year age groups. One in five men and women divorcing had had a previous marriage that had also ended in divorce (double the 1980 figure) and 44.4 per cent of live births were outside of marriage.

Relationship breakdown can be difficult for everybody involved but particularly so for a step-parent, adoptive parent or unmarried parent who may not be sure how '“ or indeed if '“ the law provides for his or her particular circumstances.

The starting point is that the court will generally only become involved if it is requested to do so (if arrangements relating to the children in question cannot be agreed) or if there is a risk of harm to the children if it does not do so. When it does become involved, it looks at what is in the best interests of the children and, in particular, must consider the following factors which are set out in section 1 of the Children Act 1989 (CA):

• the children's wishes and feelings;
• their physical, emotional and educational needs;
• the likely effect that any change in circumstance would have on them;
• their age, sex, background and characteristics;
• any harm that they have suffered or are at risk of suffering; and
• how capable the 'parents' are of meeting their needs.

Applying for a section 8 order

Section 8 CA lists a number of types of order that a court is empowered to make. These include, most commonly, residence orders and contact orders, but will also include orders relating to specific issues such as schooling.

But, given the increasingly complex family structures that characterise today's society, who is actually entitled to apply for a section 8 order? The answer lies in sections 10(4) and 10(5) CA.

Section 10(4) provides that the following may apply for a section 8 order:

• any parent, guardian or special guardian of the child (the terms 'guardian' and 'special guardian' have specific meanings within the legislation which lie outside the scope of this article);
• any person with 'parental responsibility' under section 4A CA (see below); and
• any person in whose favour a residence order is already in force.

Rather strangely, the term 'parent' is not defined in the CA and one has to therefore look elsewhere for guidance as to its meaning.

Under the Family Law Reform Act 1987 and the Adoption and Children Act 2002, a child's natural mother and father will perhaps unsurprisingly qualify as 'parents', save where they have effectively been replaced by adoptive parents.

Section 10(5) CA then widens the class of people entitled to apply specifically for residence and/or contact orders in recognition of the important role that step-parents and cohabitants often play in the upbringing of children. The extended class includes: any party to a marriage or a civil partnership in relation to whom the child has been treated as a child of the family (i.e. a step-parent); and any person with whom the child has lived for at least three years (i.e. a cohabitant).

Parental responsibility

As set out above, if one has 'parental responsibility', one has the right, under section 10(4) CA, to apply for a section 8 order. Under section 3(1) CA one also has 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to [a] child and his property'.

But what does having parental responsibility mean in practice and who has it?

In short, a person with parental responsibility has a right to be involved in all of the key decisions in the upbringing of a child (such as any decision relating to the likes of education, medical treatment and religion) '“ something of monumental importance to a non-resident parent.

Some would argue somewhat anachronistically, however, that while a mother will automatically have parental responsibility for a child under section 2(2) CA, the position in relation to the father is not so clear-cut. A father will only automatically have parental responsibility if he and the child's mother are married at the time of the child's birth. In the absence of marriage, a father may only acquire parental responsibility if:

• he is named on the birth certificate as the child's father (this is a relatively recent development in the law, only having been in force since 2003, and it is possible to re-register the birth of a child specifically in order to include the father's name and convey upon him parental responsibility);
• it is agreed with the mother that he should have it; or
• an order is made by the court giving him parental responsibility.

The law provides the opportunity for individuals to have an ongoing involvement in the lives of the children of their former partners. Relationship breakdown does not therefore necessarily signal an end to that involvement.

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