Step Parent/Child Arrangement Order

[HappilyHadesBound]

I'm looking at this purely from a legal perspective at present, would be wonderful if anyone is able to help!

I'm SM to my DH's 2 DC's. There is a previous CAO in place (under which I'm not named as we were not married or even living together at the time) under which the children live with BOTH Mum and my DH on a 50/50 basis- not primarily resident with either.. However, the arrangements aren't working as Mum refuses to work with us, as well as there being safeguarding concerns (Family Services and School, not just us) around the care she provides, so we have applied for a new CAO. This is not an amendment to the previous one, but an entirely new one, and so we made the application on a joint basis- as I am SM now, they live with me as much as DH and we feel that PR would be important for education and medical needs.

The court however, has decided before even having a hearing to remove me from the application. The reasons the legal advisor has given relate to me not being on the previous order (which should be irrrelevant to the new application anyway, and was not appropriate at the time) and not having PR- but me gaining PR was one of the major reasons for it being done jointly.

Due to the safeguarding concerns, we specifically want the order to state that they live with both DH and myself, so that if anything happens to him, they wouldn't default to living with Mum, and would remain with me as well as whatever she is awarded- not only would they have lost their Dad, but they'd then be entirely living with the parent where this is risk of harm.

Everything we've read, everywhere we've looked, says that I have the right to be named on the CAO, so we cannot understand on what basis the court can summarily remove me- can anyone advise on this at all? I'm so grateful for any help.

We do have a solicitor but she's not available over the next few days and if we're going to challenge this decision it needs to be done within 7 days.

Everything we've read, everywhere we've looked, says that I have the right to be named on the CAO

Do you mean you have the right to be named on the application for the CAO? No-one has a right to be named on a CAO, it depends on the children's interests.

Does the court suggest that you need leave to apply? Step-parents don't have an automatic right to apply for a CAO as such but most will be able to either because the children have been treated as 'children of the family' or have lived with them for 3 of the last 5 years www.legislation.gov.uk/ukpga/1989/41/section/10 see s10(5). It's not clear whether that is the case for you but that might be the issue.

I have the right to apply under 10 (5) (a)- as I'm married to their dad. I also qualify by the time they're actually going to be dealing with it under (b) as 3 years will have passed by then.

So what I don't understand is, as I clearly do have the right to make an application even in my own name without my dh, how can the court decide to remove me from the joint application?

“Due to the safeguarding concerns, we specifically want the order to state that they live with both DH and myself, so that if anything happens to him, they wouldn't default to living with Mum, and would remain with me as well as whatever she is awarded- not only would they have lost their Dad, but they'd then be entirely living with the parent where this is risk of harm.”

If DH was to pass away, his ex could apply for a new CAO and become the resident parent if the court believes that it’s in the best interest of the children and that previous risks are no longer present.

The court’s priority is to serve the children and even have discretion to make orders that very from the wishes of both parents.

The chances of the risks no longer being present are very slim though! And she would have to apply for that, not get it automatically, whereas without me name on the existing CAO it would be the other way round and I would have to fight for their safety.

An update by the way, I was right, they should not have removed me from the application- I do have the right to apply jointly with my DH and we are requesting that the court correct that. It worries us that they're making such mistakes already though before we've even got near to judges.

If that is your concern, all you need to do is get your husband to name you as his children's guardian. As the CAO says the children live with him, the appointment would take effect on his death and give you PR. His ex would then have to apply for a CAO if she wanted the children to live with her rather than with you.

A guardianship clause would only operate if the mother were already dead.

It does sound unusual. Seek legal advice about challenging the decision by way of appeal.

@Collaborate The OP says there is a CAO in place "under which the children live with BOTH Mum and my DH on a 50/50 basis". That suggests the CAO names OP's husband as someone with whom the children live. If that is the case, a guardianship appointment by OP's husband would take effect immediately on his death, regardless of whether the mother is still alive and notwithstanding the fact that the mother is also named as someone with whom the children live. However, if the CAO does not name OP's wife as someone with whom the children live, I agree that a guardianship appointment would not take effect unless the mother was already dead.

I disagree.

A guardianship clause only takes effect if at the date of death there is no one living who has PR.

@Collaborate I refer you to Children Act 1989 S5, in particular subsections 7 and 8. The appointment would fall under 7(b) and therefore 8, which normally delays the appointment until there is no longer anyone with PR, does not apply, as it specifically states.

That's my understanding too (s5(9) CA 1989).

Sorry I should say that my understanding is that if both parents are named in a 'lives with' order then the guardianship clause does not take effect whilst there is a surviving parent; s5(9) CA.

I have a lived with order and appointed a guardian in my will. The advice I received was that the guardianship would come into force upon my death therefore my ex husband would need to apply for a CAO if he disagreed. My ex husband did not need to be deceased as well for the guardianship to apply.

That being said I think OP is wanting PR now so guardianship doesn’t seem like a solution

My apologies. I'm wrong. If both parents are named as people with whom the child shall live, the guardianship appointment does not take effect until both are dead. However, if only one parent is named, the appointment takes effect as soon as that parent dies even if there is another living parent with PR.

Iappreciate that the wording of s.5(7) is ambiguous, but Butterworths Wills and Probate Administration Service says:

There is one exceptional case in which the appointment takes effect on the death of the appointing parent even if the other parent has parental responsibility, so that the guardian and the parent both have parental responsibility: this arises where the appointing parent at his death:
(a) is the only parent in whose favour there is a 'residence order' under Part II of the Act providing that the child shall live with him; ...

It is s 5(9) that says s5(7) does not apply in the event that the order alsso named the surviving parent as someone with whom the child shall live.

We are hoping that whilst the current order states lives with both mum and dh, that the new order would be lives with dh and myself with contact with mum. This is not what we ever would've wanted, and would prefer the 'lives with both' order to work, but mum refuses to co-parent, breaches the existing order regularly, and has significant concerns with social services, so she has proved in every way that she has no intention of making that work.

The primary reason for wanting pr for myself however, although his death/incapacity is a consideration, is so that I can consent for school and medical related needs, as I would be as likely to be taking them to appointments, school etc as him to facilitate our jobs whilst supporting the children. We are making a separate step parents pr agreement with my ex in relation to my children (who live with us, but no order order in place as not needed with my ex) so that my dh can do the same for my children. We feel that's important.

Do you have good legal advice OP?
It sounds a complicated situation and step parent cases are very fact dependent.

I don't think that's how it works. You can't "leave" your children to anyone in a will, not in England anyway. We said who we wanted to bring up the children in the unlikely chance that we both died, but even that could be disputed and go to court.

The courts will decide who gets contact with the children in the event of the death of a parent. I think the children should default to being with the remaining parent, as long as there is no abuse. You may get contact, but it's a bit much to push for PR.

Other people seem to know more about guardianship, so that may be different to appointing someone to look after your children in a will. Is it?

prh47bridge is (I believe) a family lawyer and very much knows what she is talking about. This is a brief explanation of what guardianship is childlawadvice.org.uk/information-pages/testamentary-guardianship/ Generally the guardianship only takes effect where the child has no surviving parent with PR left and presumably that is what you were told when you were writing your will. If the children live with one parent under a child arrangements order then the position is different.

Not really. My understanding is that in the death of both parents you can say in your will who you would like to bring up your children, but that is not legally binding. If another family member disputes it then it has to go to court. The authorities will also step in if they think the people are unsuitable, for whatever reason.

My circumstances are different but I'm due back to take my ex to court to have our current CAO verified. I don't think you can scrap the old one just like that you would surely amend it?

What have Cafcass said OP about the safeguarding issues?

On whether it's legally binding, you need to think of it in two stages.

If the guardianship takes effect (e.g. both parents die) then the guardian essentially steps into the parental role and gets parental responsibility. In that way its not just like stating a preference.- the guardian's legal position changes because of the will and if no-one challenges it then that will continue.

BUT the will can't tie the hands of a court. If there is a dispute e.g. because other family members think the child would be better with them, then the court can end the guardianship. It can also keep the guardianship but say that the children will live with the other person.

Yes we do, but also a good deal of personal and professional experience in the area between us.

We're not looking at minor amendments, instead a complete change. Any new order does overwrite an existing one, regardless of the circumstances of it.

We're not at CAFCASS yet, with court having only just issued the papers (finally, the delays are incredible!) but Mum has significant involvement with family services so it is likely that CAFCASS will pass it over to them beyond the initial safeguarding letter.