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Appointing a guardian – What rights does the surviving parent have?



 

Often becoming a parent makes many of us think about the future and the security of our family. For peace of mind many parents make a Will or update their Will and appoint a guardian to look after a child in the event of their death.

No one wants to think about not being there for their children and while the conversation to decide who should look after a child if you were no longer around would be difficult for many parents, for parents who are separated the process can become a lot harder.

What rights does the surviving parent have?

If a surviving parent does not agree that a child should be based with the appointed guardian, the first step is to consider who has parental responsibility and to check whether a Child Arrangements Order is in place. The answers to these questions could affect whether or not the appointment of the guardian takes effect.

What is parental responsibility?

Parental responsibility defines “all the rights, duties, powers and responsibilities” that parents have in relation to their child. Mothers automatically have parental responsibility but a father does not unless he was married to or subsequently marries the mother or is named as the father on the birth certificate.

Parental responsibility this can be acquired by either entering into a Parental Responsibility Agreement or if ordered by the court.

What is a Child Arrangements Order?

This is an Order setting out with whom a child is to live, spend time with and have contact with generally.

How is a guardian appointed?

To appoint a guardian a parent will need to make a Will making their wishes clear and include as much information as possible to explain the reasons why the guardian has been selected. Where parents are separated it is advisable to attach a letter to further explain why the parent considers that the child would be better placed with the guardian rather than a surviving parent.

The effect of a Child Arrangement Order

If the parent who dies had a Child Arrangements Order in place confirming that the child ‘lived with’ them, then the appointment of the guardian named in their Will would immediately take effect and the guardian automatically acquires parental responsibility. In many cases this the guardian will share parental responsibility with the surviving parent.

This does not mean that the surviving parent can not dispute the appointment but they would need to make an urgent application to court for a decision about where the child should live.

If no Child Arrangement Order is in place

If no ‘lives with’ Order is in place the automatic assumption would be that the child would live with the surviving parent with parental responsibility.

The proposed guardian would need to make an application to court if they wanted the child to live with them. They would also have to ask the court for permission to apply as they would not have an automatic right.

No Child Arrangement Order or parental responsibility

Where the parent who is making the guardian appointment does not have a ‘lives with’ Order and after they die, the surviving parent does not have parental responsibility, the Court would appoint a guardian.

The surviving parent would have to apply to Court if they wanted the child to live with them and the Court would take into consideration the deceased parents suggestion in their Will for who the guardian should be but ultimately the Court will make the final decision.

What factors would the court take into account?

In considering in whose favour to make an order, the child’s welfare is the court’s paramount concern. The court considers a list of factors set out in the Children Act 1989 known as the ‘Welfare Checklist’ which takes into account the following:

  • the wishes of the child
  • their physical, emotional and educational needs
  • the likely effect on the child of any change in circumstances
  • the age and sex of the child and any other relevant characteristics
  • how capable are the parent and guardian of meeting the child’s needs.

What if the guardian lives abroad?

You can appoint someone as a guardian if they are living abroad. However, bear in mind that the guardian may not be granted permission to live in the UK or, if the intention is that the child moves abroad, there may be issues formalising the child’s new residence depending upon the country.

If you need some advice about appointing a guardian or you are a separated parent worried about who would look after your children should you no longer be around please speak to Family Solicitor, Simon Walker on 01935 813691 or email simon.walker@mogersdrewett.com.

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