Blended families of many different types are now a mainstay of family life in 2023. From these family arrangements, different, often casual, parenting relationships can emerge as new partners, new spouses, and/or family members all pitch in to help care for the children of the family. Often, these arrangements become semi-permanent without any need to formally consider rights and responsibilities in a legal sense. Formal rights, duties and responsibilities towards children are captured in the Children Act 1989 and are defined legally as available to those individuals with ‘parental responsibility’ (PR). Those with PR are most commonly identified as being the child’s parent or parents. 

This article does not focus on those individuals but instead on the carers without PR who step in to help when a parent can no longer care for their child. What legal rights does a long-term non-parent carer have, and what happens when a parent wants their child returned and the non-parent carer has concerns?

Carers without PR

Recent years have seen an uptick in new client enquiries arising from precisely this dilemma. The identity of the non-parent carer might be grandparent, aunt or uncle, older sibling, step-parent (whether or not married to the other parent) or ex-partner of a parent. A common scenario is where the parent with whom the child has been living either becomes incapacitated through physical, mental or emotional ill-health or simply pursues a different life and can no longer meet the child’s needs, and there is no other parent to step in. Sometimes the ‘incapacitated’ parent will be physically absent; sometimes they will be present but struggling with their own challenges. A family member will take over care because it is necessary – sometimes borne of urgency, sometimes the arrangement unfolds slowly - and a new parenting arrangement develops organically. In some scenarios, the local authority may become aware and will take an interest in formalising any new arrangements. Often, however, a child’s needs are met privately and discreetly with family members absorbing the practical responsibility without fuss to ensure the child’s care is a smooth transition from parent to non-parent. This offers the child stability and certainty during what might be a tumultuous and distressing period for the child.

Depending on the availability of the child’s parent(s), such arrangements can last weeks, months or years. Slowly the whole family adapts to the new carer, the child becomes reliant upon the consistency of care, and others such as nursery workers or teachers become used to a new or more regular face at the gates. Sometimes the practical arrangements are split between available family members, sometimes they are entirely absorbed by one individual. Such arrangements can continue unchallenged and work happily until the parent re-enters the child’s life, or, a major decision requiring the permission of those with PR is required, such as unexpected medical treatment or decisions about schooling. A clash of opinions over what is in the child’s best interests may arise between the parent and carer. Despite the incapacity or absence of a parent, there is no loss of that parent’s PR (if they have it) other than by court Order. This means that, legally, the parent can reappear at any time and demand involvement or the return of their child. Where a PR decision is involved, there may be disagreement between the parent and non-parent carer about what is best. In either scenario, this is where matters can become distressing for all involved. The non-parent carer may consider that, for whatever reason, the parent is still not capable of meeting the child’s needs; the child may not want to leave the non-parent carer; the non-parent carer may not want to give up care; and/or there is a fundamental difference in decision making for the child.

In such circumstances, it falls to the non-parent carer to be proactive to protect the arrangements. Within children proceedings, ‘status quo’ matters - and can do to a significant extent. The longer a child is in a safe and secure environment, the harder it may be to remove the child from that home without good reason. Sometimes there will be very good reason - and the re-emergence of a parent will always be a primary consideration - but on other occasions, the court may well consider that the child is safer and more settled with the non-parent carer than the parent, particularly if health issues or general unreliability of the parent continue or may reoccur. This does not mean a loss of, or even dilution of, the parent’s rights and PR, rather there is a stabilising of child arrangements with the best interests of the child at its heart. 

There are no automatic ‘rights’ for a non-parent carer that trump a parent simply because a child is living with them. However, non-parent carers can apply to court for children Orders. Those without automatic PR need to apply to the court for permission to make their application alongside their substantive application. In recognition of modern families, the Children Act 1989 now contains a wide class of individuals who can apply to the court for Orders in respect of children and this includes but is not limited to:

• Any parent
• Anyone with PR
• Any party to a marriage/civil partnership (whether or not continuing) in relation to whom the child is a child of the family
• Any person with whom the child has lived for at least 3 years
• A relative of the child with whom the child has lived for a least 1 year

It would be unusual, therefore, if a non-parent carer was without the right to apply to court. In circumstances where permission may need to be sought from the court to make the application in any event, it is worth considering with the benefit of legal advice whether the application can still be made even if the criteria above does not apply. This is on the basis that the Children Act 1989 has at its core the welfare of children. If there is a good welfare reason why an applicant should be heard, the court will probably grant permission for the application to proceed. It will then be a matter for the court as to whether, for example, the local authority are invited to be involved if the court has concerns about the arrangements for the child or the credibility of the parent or non-parent carer. 

If a non-parent carer suddenly finds themselves caring for a child, it is always wise to take legal advice early to understand how their parenting role may develop over time and what issues or sensitivities may lie ahead. Sometimes it is possible to negotiate a new arrangement, either informally or in mediation, between a non-parent carer and parent that enables an element of shared care but with certainty as to who is undertaking day-to-day care. This could reassure the parent, non-parent carer and child as to respective boundaries, roles and responsibilities. In other circumstances, where a parent suddenly re-enters and demands the return of the child, urgent legal advice should be sought by the non-parent carer if they have concerns. In this scenario, the non-parent carer may need to make an application to the court to try and stabilise the child’s home or educational environment, at least in the short term, while investigations are made and longer-term arrangements can be determined for all involved. 

You can learn more about Prettys' Family Services here or you can get in contact via enquiry@prettys.co.uk.