Generally the biological parents of a child are joint guardians.
However a mother may be a sole guardian if she was not married to,
or in a civil union or de facto relationship with, the father of
the child at any time between the child's conception and
A father who is registered on the birth certificate becomes a
guardian provided his particulars are registered because both he
and the mother have notified the birth as required by section 9 of
the Births, Deaths, Marriage and Relationships Act 1995.
How else can you become a guardian?
If a father is not automatically a guardian he can apply to the
Court to be appointed as one. Generally the Family Court must
appoint the father as a guardian unless it would be contrary to the
child's welfare and best interests.
Other people, for instance step parents, might seek appointment
through the Court. For any person to be appointed the existing
guardians must agree to the appointment. Even if the father of the
child is not a guardian he must agree to the appointment as well.
If the existing guardians do not agree to the appointment the Court
could still appoint an additional guardian if they think it is in
the best interest of the child to do so.
The Court could also appoint another person as an additional
guardian for the child. It could be for a specific purpose or
period and it could be subject to limitations. This could happen
where the natural parents have died and the person who has assumed
responsibility for bringing up the child wishes to become their
legal guardian, or perhaps where a child has been in long term
The welfare and best interest of the child are the first and
paramount consideration for the Court in any application.
Restrictions on appointment of step parents
There are conditions on the appointment of a step parent as an
additional guardian. For instance they must actually have been
sharing the responsibility of the child's day to day care for
not less than a year. They must also not have been involved in
proceedings under the Care of Children Act 2004, or generally in
proceedings that involve child safety issues, domestic violence or
certain criminal offences.
Other ways to appoint an additional guardian.
The other way in which guardians can be appointed is by Will, or
deed, by the parents. These are known as testamentary guardians,
and the appointment only becomes effective on the death of the
Guardianship lasts until 18, although as the child matures they
are expected to be making more decisions for themselves with
guidance from the guardians. If concerns exist as to the
child's ability to make decisions for themselves at 18, then it
may be appropriate that applications are made under the Protection
of Personal and Property Rights Act for the appointment of a
property manager and welfare guardian. However it is not enough
that the child might make decisions that you would disagree with or
would see as unwise, for the Court to interfere in their right to
make their own decisions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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