If a child’s parent dies before the child is 18 and the surviving parent has Parental Responsibility, the surviving parent with Parental Responsibility will be responsible for the child and have decision making power regarding key aspects of the child’s life.
The same applies if one parent becomes incapable of exercising Parental Responsibility. The responsibility will rest with the other parent with Parental Responsibility.
This is the case irrespective of how much involvement the other parent with Parental Responsibility has had in the child’s life, and regardless of what the deceased/incapacitated parent may have specified (i.e. if they have appointed an alternative guardian for the child in their Will).
This can cause problems if the parents were separated and the deceased/incapacitated parent was the primary carer, with the other parent being absent and uninvolved in the child’s life to date. The absent parent would automatically be responsible for the child if they shared Parental Responsibility with the deceased/ incapacitated parent. This is problematic if the surviving parent does not wish to assume this responsibility (or if they are unfit or incapable of doing so). Other family members, usually the family of the deceased/incapacitated parent, may object to the responsibility passing to the other parent – or the child may themselves reject that parent.
Alternatively, there can be issues if the other parent does not share Parental Responsibility. They can acquire Parental Responsibility for the child, but would need to apply to Court for this, and the Court would make a decision.
If there is no other parent with Parental Responsibility, a testamentary guardian named in the deceased parent’s Will should assume responsibility for the child.
If the parent with Parental Responsibility has lost capacity, they cannot confer Parental Responsibility on the other parent. Again, the other parent can acquire Parental Responsibility for the child, but would need to apply to the Court for this and the Court would make a decision.
If no parent or guardian can care for the child, or if there are concerns about their ability to do so, the Court may appoint a grandparent or other suitable person as a guardian.
As a last resort, the child may be placed in the Local Authority’s care if there are no parents or family members willing and able to assume responsibility for the child.
APPOINTING GUARDIANS
A Parent can specify who they would wish to appoint as ‘Guardian(s)’ to care for their children in the event that parent passes away before the child is 18.
The appointment must be made in writing, dated and signed by the person making the appointment.
The appointment need not be made in a Will. However, this is usually where family and the authorities would look in the event of a parent’s death. A stand-alone, less formal document might be overlooked.
Where the parents of a child remain in a relationship or where separated parents maintain civil communications with one another, they should endeavour to discuss this and appoint the same guardians for their child. If they fail to do so, it could give rise to a situation where there are two or more separately appointed guardians who would have to work together to make important decisions about the child’s life. If they cannot agree, the Court will decide – and this can serve to further impact on an already bereaved child.
If both parents with Parental Responsibility for a child make Wills appointing guardians for their child and one parent dies before the child is 18, the appointment of a Guardian under their Will does not take effect on their death. It would take effect only if the other parent also dies before the child is 18. The appointment in the Will of the second parent to die would take effect on their death.
WHAT IF ONE PARENT DOES NOT HAVE PARENTAL RESPONSIBILITY?
If one parent of the child does not have Parental Responsibility, then only the mother can appoint a guardian.
If the mother dies before the child is 18, the mother’s appointment of a guardian will take effect immediately and only the guardian will be able to make decisions about the child (even if the child was living with their other parent). The guardian will have no legal obligation to consult with the surviving parent.
If however the surviving parent had acquired Parental Responsibility before the mother died, the mothers appointment of a guardian would not take effect.
KEY POINTS ABOUT GUARDIANSHIP:-
- It is advisable for parents to appoint a ‘substitute’ guardian if the first-choice guardian dies before the surviving parent, loses mental capacity or disclaims the appointment. Parents should discuss successor guardians with their chosen guardians and make their wishes known in their letter of wishes. The requests in the letter would however not be binding on the guardian. If the Court is asked to make a decision, the court will consider the parents’ wishes but ultimately the welfare of the child is the courts paramount consideration.
- A guardian whose appointment has taken effect can however appoint their own successor, and it is advisable that a guardian do this as soon as they take up their appointment.
- Once a guardian is appointed on the parents’ death, the appointment can only be brought to an end if the guardian disclaims the appointment or the court orders it.
- The appointment of a guardian does however end when the child reaches 18.
- A guardian is not obliged to support a child from their financial resources. Any inheritance for the child, from their late parents, will be held upon trust for the child until they are years of age (or sometimes later). The trustees of the late parents’ estate will usually have powers to pay income and/or capital from the trust for the maintenance, advancement and demonstrable benefit of the child. The trustees will usually therefore have the power to use the trust to pay funds directly to the guardian for the child’s expenses. It is important therefore to be assured that the chosen guardian and trustee will be able to work together for the benefit of the child.
- Our Trusts and Estates Team will be able to provide further advice regarding the appointment of a Guardian in your Will, and the creation of any Trust arrangement.
WHAT IF THERE IS NO-ONE WITH PARENTAL RESPONSIBILITY, AND NO GUARDIAN APPOINTED?
In the absence of an appointment of a Guardian by all of those with Parental Responsibility, only the court can decide upon who will care for the child and be responsible for decision making if those with Parental Responsibility pass away or they are incapacitated.
If the parents pre-empt such a situation and agree informally with family or friends who will care for the child if they die or become incapacitated, nobody will have Parental Responsibility in the formal sense. This can create issues with regard to decision making for a child, for example – should they need medical treatment requiring the consent of those with parental responsibility. It would also create administrative issues if there was no formal Court Order conferring the rights upon the relative who is stepping in, for example, obtaining a passport for the child, applying for school placements, claiming benefits, etc.
If a child is left with no parent able to exercise their Parental Responsibility, it may fall to older siblings, aunts/uncles, or grandparents to care for them. Such relatives would not have automatic legal rights to see or care for the children, even after a parent’s death.
They would need to apply for a Court Order conferring the appropriate rights upon them. This will usually be either a Child Arrangements Order (CAO) or a Special Guardianship Order. The relative would need to demonstrate that there is a strong existing relationship between the relative and the child, and there is no other suitable parent with Parental Responsibility or appointed guardian to care for the child. The court will prioritise the child’s welfare and may grant the order if it is deemed in the child’s best interest, even if a surviving parent objects. If a CAO or Special Guardianship Order is made so that the child is to live with this relative, the Order would confer Parental Responsibility upon the relative.
A Child Arrangements Order can be made to determine various issues, including who the child should live with, and who they should have contact with. The following categories of applicant can apply for a CAO under Section 87 of the Children Act 1989:-
- A party with parental responsibility for the child(ren)
- Anyone named on a Live With (residency) Child Arrangements Order
- Any party in a marriage in relation to the child of the family
- Any person with whom the child has lived with for the last 3 years
- A Guardian
- Local Authority Foster Parent
All other Applicants will need to apply for leave of the Court before progressing their application for an Order. For example, a Grandparent who does not meet the above criteria would need to seek the Court’s permission to apply for a Child Arrangements Order (CAO). They have no automatic rights over grandchildren, and will need to seek the permission of the court to make an application for a CAO.
It would be necessary to seek these Orders if there is no other person with, or capable of exercising, Parental Responsibility for the child. Someone will need to have Parental Responsibility to make key decisions on behalf of the child.
It may not be necessary to secure these Orders if there is a surviving, capable parent with Parental Responsibility who is agreeing matters and whom is capable of facilitating the arrangements. Arrangements may be agreed through discussions or Mediation to ensure that child has an ongoing relationship with both sides of their family.
If however the surviving parent with Parental Responsibility is unwilling or unable to assume responsibility for the child, or is considered unfit to do so, then other relatives should consider applying for an Order to assume responsibility.
If there is a dispute between the surviving parent and extended family regarding their respective roles, the Family Court will need to decide who should be involved and how.
The court will expect parties to have considered non-court dispute resolution before making an application to the Family Court.
If the dispute cannot be otherwise resolved, the Family Court will make a decision by reference to the nature of the application; the connection between the applicant and the child; and any disruption or harm that may be suffered by the child as a result of the proceedings. The court will be primarily concerned with acting in the best interests of the child, taking into account a range of factors with regard to the child’s welfare. As a starting point, the Court will usually see the benefits of preserving a bereaved child’s links to both their maternal and paternal family.
It is important for parents to obtain advice with a view to planning ahead for such eventualities, and to ensure that their wishes are followed as far as possible.
In the event that such a situation arises where a parent with parental responsibility dies or becomes incapacitated, it is important for other family members to seek advice and take steps to safeguard the child and ensure that key decisions can be made on the child’s behalf if necessary.
Our Private Client and Family Law specialists can advise and assist in both respects. Contact a member of the DTM Legal team by calling 01244 354 800/0151 321 0000 or submit an enquiry.
