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Do I Need To Appoint A Guardian For My Children In My Will?

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If you have children under 18 and you are making a Will, you should consider who would look after your children if you were to die while they are still under 18.

Writing a Will can give you peace of mind that your children will be cared for by whom you choose to look after them.

It may be that you have blood relatives who you would not want to look after your children. A Will allows you the opportunity to appoint who you would like to act as guardian for your children. You can also set out your reasons for the appointment in your Will.

If there are disagreements after your death, your Will and any additional wishes you have left would be used as evidence in court for your reasons for your appointment. Your reasons would be taken into account and carry weight with the court.

If you do not name guardians in your Wills and several potential guardians come forward, the court would have to decide to make a child arrangements order setting out with whom the child should live. The applicant who the Judge feels is best able to meet the needs of the child would be appointed. The court would need to take into account all the circumstances such as the child’s relationship with the proposed guardian and the wishes and feelings of the child him or herself in line with a child’s age and understanding.

If you were to die and the other parent of your child has parental responsibility, they would automatically become the child’s guardian irrespective of whether the parents are living together or not. If you choose someone other than the other parent with parental responsibility to be a child’s guardian in your Will, that person will not automatically become a child’s guardian. If they want to become the child’s guardian on the first parent’s death, they need to make a court application and ultimately if will be the court’s decision as to who is the best guardian to meet the children’s needs. The court will try to make a decision based on what is best for the child’s welfare using the welfare checklist which we can advise you on.

When choosing a guardian, you should consider the size of their own family and whether it would be feasible for them to take on your family. They may also not live locally which would involve a move of schools and friends for your child. They may also be older than you and within the period of guardianship may struggle to look after your children.

In your Will you can provide your guardians with additional assistance. If you own your own property; you can specify that your guardians live in your property with your children to prevent as much disruption to them as possible.

If you anticipate that your guardians would need a bigger car or would need to build an extension to their own property; you can provide a power for your executors to loan them money for this purpose.

Grandparents:- Their Role, Rights And Responsibilities

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The role of grandparents continues to evolve and perhaps become increasingly more important. Almost two thirds of all grandparents look after their grandchildren regularly, often whilst parents are at work. A contributory factor is the cost of childcare which means there are many informal family arrangements.

The Children Act 1989 as amended requires grandparents to seek permission (leave) of the court to file a section 8 application. This creates a two stage procedure, except in some exceptional circumstances where a grandparent may make an immediate application.

A grandparent has no parental responsibility in law which means they cannot make major decisions such as about medical treatment, schooling and for travelling outside the UK which can present difficulties for grandparents caring for their grandchildren. In the case of Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114, Thorpe J suggested that trial judges should have greater appreciation for the contribution made by grandparents for the care of their grandchildren.

A large number of grandparents may sadly lose contact with their grandchildren when parents separate. The first step must always be to try to resolve issues within the family by agreement or through mediation.

Which court orders can grandparents apply for? The most likely court orders are a Special Guardianship Order (Section 115 of Adoption and Children Act 2002) or a Child Arrangements Order (Section 8 Children Act 1989 as amended).

  • A Special Guardianship Order lasts until a child is 18 unless changed by earlier court order. It enables the special guardian to have parental responsibility for the child and to take most decisions about the child without consulting the parent. Major decisions such as changing the child’s surname or taking them abroad for more than three months require agreement of the parents or the court’s permission. The child retains birth family links albeit that the parental responsibility of the parents is reduced.
  • A Child Arrangements Order can be granted to grandparents to confirm that the grandchild lives with them, provided they have the court’s permission to seek such an order or are exempt from doing so. A Child Arrangements Order granted to grandparent(s) can set out who the child lives with and how much time the child will spend with the parent(s) or other persons with parental responsibility.

Are You A Separated Parent And Thinking About Taking Your Children Abroad On Holiday?

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As the summer months approach us, many begin dreaming of taking a break from reality and jetting off abroad with the children for a holiday. However, if you are a separated parent you need to consider carefully whether you are legally entitled to carry out your plans.

1. There is a Residence Order or ‘lives with’ Child Arrangements Order in place

If there is a Residence Order or Child Arrangements Order in place, ordering that your children ‘live with’ you (formerly known as a Residence Order) then you are able to take your children abroad on holiday for up to 28 days. The order must stipulate that the children are to ‘live with’ or ‘reside’ with you after the words “it is ordered”. If you do have an Order of this nature and are travelling abroad with the children, then it is still courteous to inform the other parent of your intentions. The only way you would be unable to travel abroad on holiday with the children when there is a ‘lives with’ Order in place, would be if there was also a Prohibited Steps Order in place preventing you from doing so.

2. There is a Contact Order or ‘spends time with’ Child Arrangements Order in place

If the Child Arrangements Order does not legally record that the children are to ‘live with’ you as explained above, or you are the parent that ‘spends time with’ the children (previously known as a Contact Order) then you must obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.

3. There is no Court Order in place in relation to the children

Whether you are the children’s primary carer or not, you would need to obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.

4. Who shares Parental Responsibility?

A child’s mother will always have Parental Responsibility (unless a public law order has been made stipulating otherwise). A child’s father will share parental responsibility if he was married to the mother, he is named on the child’s birth certificate (only applicable to births registered after 01.12.2003), he and the mother have entered into a Parental Responsibility Agreement, or the Court has made a Parental Responsibility Order in the father’s favour. Other third parties, such as step parents, guardians or same sex parents may also share Parental Responsibility, by virtue of a Parental Responsibility Agreement or Parental Responsibility Order. A third party could also acquire Parental Responsibility if they have a Residence Order or ‘lives with’ order in their favour.

5. What happens if I cannot obtain the necessary consent?

For the avoidance of doubt, it is always recommended that consent from the necessary third parties is obtained in writing before a holiday is taken. If consent is not given or refused, then it would be necessary for you to make an application to the Court for a Specific Issue Order before your intended holiday. The Court are able to make an Order permitting a foreign holiday in the absence of consent from the necessary third parties. If the other parent or person with Parental Responsibility wants to prevent a foreign trip for a specific reason, then they could apply to the Court for a Prohibited Steps Order. If you travel abroad with the children without the appropriate consent or Order of the Court, then you could potentially be prosecuted for child abduction.

If you are unsure whether you are acting appropriately, or wish to receive further advice or assistance in this regard, then please do not hesitate to contact our Family Department.

Kerri Westlake

Graduate Legal Executive