There can be many reasons that parents are unable to look after their own children, long-term ill health, abusive lifestyle choices and death. The rise of the coronavirus pandemic has seen the rarity of the death of both parents of young children occurring more frequently.

In the event of the death or severe illness of both parents, the question of guardianship for minor children falls to the child protection services in the country in which they are living.  In the absence of their parents, regardless of the reason, the child protection system in each country aims to safeguard the child's best interests. 

Parents can eliminate much of the need for official intervention by nominating a guardian for their child or children in a will.  The potential guardian should be approached to ensure that they are aware of their role should they be called upon.  The act of appointing a guardian ensures that your child is in the care of a person selected by you who is trusted and approved of.  Also, there is the opportunity to provide direction as to the preferred decisions to the major issues that arise, such as where the child should be educated. 

Giambrone's wills and probate lawyers have extensive experience in advising parents on how to protect their family and can assist in drafting a will incorporating the testator's wishes regarding guardianship of their children. If there is an existing will, a codicil incorporating their wishes with regard to their children's guardianship can be added to the document.

Close relatives of the orphaned child will nearly always be considered to take on the role of guardian.  Where a situation involves children living overseas away from their wider family, the authorities must take steps to ensure that the child is placed in the best possible situation. 

In the UK and across Europe children are protected. Each Member State in the EU has a national child protection structure which is aligned with  Article 20 of the CRC and Article 24 of the Charter of Fundamental Rights of the European Union and in the UK the Guardianship of Minors Act 1971 protects children whose parents are not present to care for them.

In the recent case of the orphaned five-year-old Israeli boy, Eitan Biran, the sole survivor of the cable car accident near Lake Maggiore earlier in this year, his paternal aunt, who is based in Italy, has assumed his care.  However, his Israeli based maternal aunt contends that the placement is unsuitable.  In the event of a legal dispute, the authorities will have to seek expert opinions, including a legal option, to guide them to a satisfactory conclusion.

Giambrone & Partners has a robust cross-border family law team that frequently deals with challenging matters involving the breakdown of parental responsibility within a family unit. Societies throughout the world are more cosmopolitan than ever before and this has resulted in a significant number of families living away from their country of birth.  Giambrone's family lawyers are increasingly asked to advise on the difficult question of Special Guardianship in relation to the placement of a child with relatives overseas.

Alessandro Gravante, senior partner, was instrumental in advising on the first Special Guardianship Order related to South Africa. He has frequently been approached by the Education and Children Services in the UK to provide a legal opinion on a raft of issues relating to Special Guardianship Orders for children based in the UK whose country of origin or whose parents' country of origin is Italy or elsewhere.  Alessandro advises on the legal or practical implications of a placement with a child's extended family outside the UK.

Guardians can be changed should your intended guardian die or experience a major life-changing event or if they are no longer capable or prepared to take on the responsibility. 

Guardianship can also be revoked, if the incapacity of the parents is temporary, by means of a court order.  However, a Special Guardianship Order is a more permanent solution usually applied when parents appear to be in a long term situation preventing them from caring for their children. A Special Guardianship Order whilst it is designed to be a permanent solution it stops short of the permanence of adoption, that cannot be overturned and crucially it keeps the link to the child's parents allowing the potential for reconciliation at a later date if the situation changes and improves.  The overriding factor is always the best interests of the child.

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.