For peace of mind most parents will want to make a will appointing a guardian to look after a child in the event of their death and parents often make this decision together. However, for estranged couples who have encountered difficulties whilst co-parenting, this could be another hurdle to overcome. What powers does the guardian have if the surviving parent does not agree that the child should be based with the guardian? And what rights does the surviving parent have?

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?

This is a legal status which is defined as “all the rights, duties, powers and responsibilities” that parents have in relation to their child. Mothers automatically have parental responsibility. A father automatically has this if he was married to the mother when the child was born (or they subsequently marry) or he is named as the father on the birth certificate.

If a father does not automatically have 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?

The parent seeking to appoint the guardian will need to make a will making their wishes clear. It is sensible to include an additional letter which can be attached to the will explaining the reasons why the guardian has been selected and why the parent considers that the child would be better placed with the guardian rather than a surviving parent.

If the parent who dies had a Child Arrangements Order in place stating that the child ‘lived with' them, the guardian appointment set out in their will takes effect immediately and the guardian automatically acquires parental responsibility. In many cases this will mean that the guardian will have parental responsibility jointly with the surviving parent.

Whilst the appointment of the guardian would automatically take effect, this does not mean that the surviving parent can not dispute the appointment. The surviving parent would need to make an urgent application to court for a decision about where the child should live.

If there is no ‘lives with' Order in place when the parent who is making the appointment dies, their appointment of a guardian does not take effect until the remaining parent with parental responsibility dies. In this situation 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.

The final scenario is where the parent who is making the appointment does not have a ‘lives with' Order and after they die, the surviving parent does not have parental responsibility. In this case, the Court would have to appoint a guardian. Therefore, if the deceased parent had put forward a suggestion in their will for who the guardian should be, the Court would take them into consideration. The surviving parent would have to apply to Court if they wanted the child to live with them.  

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.

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.