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How the law recognises parental responsibility and guardianship

The loss of a parent can unfortunately lead to childcare disputes. We uncover how responsibility is decided and what you can do to protect your children.

19 May 2022

The outbreak of the Covid-19 pandemic sparked widespread public health concern, leading to millions of wills being drafted in Britain. Having a will in place ensures that your wishes are documented, and your estate divided in line with your wishes upon your death.

However, wills don’t just ascertain how your estate is to be divided. They can also include provision for who you wish to look after any children that you have parental responsibility for, should they be under the age of 18 at the time of your death. Lauren Moroney, from our family law department, explains how you can assign parental responsibility and what rights your appointed person will have.

What is parental responsibility?

Parental responsibility is defined by the Children Act 1989 as being all the rights, duties, powers, responsibilities, and authority that a parent of a child has in relation to the child and their property by law.

Biological mothers automatically get parental responsibility on the birth of a child, as do biological fathers if they’re married (or in a civil partnership) to the biological mother at the time of the child’s birth. In terms of unmarried father parental responsibility, a father will also automatically get shared parental responsibility if he’s named on the child’s birth certificate - irrespective of marital status. Adoptive parents also automatically obtain parental responsibility upon adoption.

There are other circumstances in which parental responsibility can be obtained, and if you need further guidance you can speak with one of our family lawyers to arrange a fixed-fee consultation.

How to assign legal guardianship

Under the Children Act 1989, any parent who has parental responsibility for a child may appoint another individual to be the child’s guardian in the event of their death; they are known as a testamentary guardian. The testamentary guardian can be appointed in a will, or simply in writing - so long as it’s dated and signed by the person making the appointment, or by someone else following the instructions of the person making the appointment. No specific wording is needed for the clause to be valid, it can be as simple as ‘In accordance with section 5 of the Children Act 1989 I appoint X to be the guardian of my child, Z.”

This is different from appointing godparents to children, so to ensure you’re placing the right legal protection over children in your care, it’s best to assign guardianship.

What are the parental rights and responsibilities as a testamentary guardian?

Any person appointed as a child’s testamentary guardian will acquire legal parental responsibility for the child or children concerned if the child/children have no other surviving parents with parental responsibility. However, if there’s a surviving parent with parental responsibility, and there’s no order already in place which determines where and with whom the child is to live (child arrangement order), parental responsibility won’t automatically transfer to the testamentary guardian.

Whilst the law doesn’t automatically presume that a child’s natural parent is the right person to assume the role of primary carer for a child, it’s important to remember that the appointment of a testamentary guardian won’t be effective if there’s a surviving parent with parental responsibility.

Is there such a thing as removing parental responsibility and how is this decided?

In circumstances where a dispute arises between potential carers (e.g., between a biological parent and a testamentary guardian) following the death of a parent with parental responsibility, the court will focus on deciding who should be the child’s primary carer by applying the welfare checklist.

This, amongst other factors, considers the wishes and feelings of the child concerned, and their physical, emotional and educational needs.

Each case in relation to children is highly individual. If you need advice on a private children law matter, our experts in the family law team here at Slater and Gordon will be happy to support you.

To speak with one of our expert family lawyers, simply call us on 0330 041 5869 Or, if you prefer, you can contact us via our online form or web chat.

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