Best interests conundrums for orphaned step-children

Scriptwriters on the popular and long-running radio soap The Archers have been praised by a leading family lawyer for continuing to bring listeners’ attention to aspects of modern family life that remain widely neglected in terms of forward planning.

In focus at the moment is the fall-out following the death of a young mother of three whose bereaved husband now faces the heartbreak of possibly losing custody of two step-children he has treated as his own for nearly a decade.

Rayner Grice, a family law specialist and head of our Birmingham office, said: “While the character Nic Grundy was alive relations with the children’s natural father Andy were amicable, characterised by Andy having a flexible relationship of contact with his children.

“But Nic’s death has re-focused Andy’s priorities with his children, and matters are now coming to a head, as he has contacted a solicitor and her bereaved husband Will is horrified to learn there is a high chance that both his step-children will move to live permanently with Andy.

“The issue of how to meet the best interests of such children if the remaining adults in their lives become embroiled in a dispute about them is not an unfamiliar challenge, and there is much food for thought here for any step-parent.

“It is not known whether when Will married Nic he also adopted her children, but if we assume he didn’t then – in the absence of a Parental Responsibility Agreement – Will has no legal rights to make decisions for them.

“It is likely that the only person who now has those rights is Andy, provided he was named on both children’s birth certificates.

“So what should a step-parent finding themselves in such a situation do?

“At the very least, if any step-child is to remain primarily with the step-parent they would need to seek a ‘Living With’ order, so they are able to make legal decisions relating to the children’s education and health, or on any other urgent issues should that need arise when they are in their care.

“This would require a consent agreement with the surviving natural parent, or the granting of an order through the Court.

“In The Archers’ storyline it seems that Andy might not agree to this, so the Court may be asked to determine what is in the children’s best interests. The overriding consideration for the Court is the welfare of the children and they will consider the welfare checklist as set out in The Children Act 1989.

“It is likely that the Court would seek the advice and recommendations of a Cafcass officer regarding what is in the children’s best interests.  In this case, since the children are aged around 13 and 11, their views would be sought and taken into account, although this would not determine the overall decision.”

Rayner says that if this were a real case, other issues the Court would consider revolve around the children’s relationships with both men, as well as with their younger sibling who would remain living their step-father. The children have lived for a significant period with Will and this would be where they would be used to calling home.

Rayner said: “It is intriguing to consider where this story-line might go.

“If it progresses to Court, a likely decision would be that the step-children should continue to have a relationship with Will, even if they do not end up living with him.

“But the Court would also balance the step-children’s need for a relationship with their natural parent which will become more significant now they have lost their mother.

“Listeners could reasonably expect the Court to try and balance matters in the children’s best interests, but a lot will hinge on how the relationship between Andy and Will is managed, and perhaps family mediation will feature.

“It will be interesting to see what those creative script-writers have up their sleeve.”