Child Care Solicitors

Parental Responsibility ( PR) means all the rights, duties & powers, responsibilities & authority, which by law the parent of a child has in relation to that child and their property. All birth mothers automatically have PR for their children. Most fathers have or acquire PR for their children at some stage, either through marriage, by signing the birth certificate, by signing an Agreement with the mother or by obtaining a court order.

Who will take over responsibility of a child upon the death of a parent?

It is often difficult for parents to think about what arrangements they would make for their children in the event of their death, and often this is not considered until the parent is facing a devastating issue, such as being diagnosed with a terminal illness.

A Guardian

A Guardian of a child is someone appointed to take over responsibility of that child in the event of the death of the child’s parent or carer. The Guardian would have the authority to deal with all the day to day care for the child, as they would acquire parental responsibility.

The most common way of appointing a guardian for a child is through a Will, where the appointment must comply with the usual rules associated with the making of a Will, in that it must be properly signed and witnessed as required under the provisions of the Wills Act 1837. However, it is also possible to appoint a Guardian under the Children Act 1989.

Appointing a Guardian under the Children Act 1989

Under the Children Act 1989, the appointment of a Guardian is not effective unless it is in writing, signed by the person making the appointment and dated. The Children Act confirms that a Guardian can only be appointed by a parent with parental responsibility, an existing Guardian of the child or by order of the court. The appointment of a Guardian only becomes effective upon the death of the appointee and at such time, the Guardian will acquire PR, provided:

1. There is no surviving parent / individual with PR, or


2. The deceased parent had a residence order in his favour at the time of his death.

In the event of conflict between the Guardian and surviving parent, it may become necessary for either party to make an application to the court for an order stating, for example, where the child should live, or dealing with issues of contact.

Where the deceased parent does not have a residence order in their favour at the time of their death, the appointment of the Guardian does not become effective until the death of the surviving parent with parental responsibility.

What if you change your mind about the appointment of a Guardian?

If a parent with PR changes their mind about an appointment, they may revoke the appointment by destroying the original document appointing the Guardian (or revoking the Will which appointed the Guardian) or by revoking the appointment in writing.

What if the Guardian does not want the responsibility?

If the person appointed decides they do not want the responsibility of being a Guardian, they may refuse the appointment in writing within a ‘reasonable time’ of them becoming aware that the appointment has taken effect.

Although most of us prefer not to think about the possibility of dying before our children become adults, it is important to consider what arrangements you would want for your children, should the worst happen.