Planning for the care of your child in the event of your death is a vital but often difficult consideration for parents. The law gives parents some control over who will look after their child if they die, but it is not absolute. The situation becomes more complicated depending on several factors, including marital status, whether there is another parent with parental responsibility, and whether or not other relatives are involved. This article looks at these situations in more detail.
Planning for the care of your child in the event of your death is a vital but often difficult consideration for parents. The law gives parents some control over who will look after their child if they die, but it is not absolute. The situation becomes more complicated depending on several factors, including marital status, whether there is another parent with parental responsibility, and whether or not other relatives are involved. This article looks at these situations in more detail.
If you have a family law issue and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
Can a parent decide who should look after their child?
Appointing a Guardian
A parent can appoint a guardian for their child in their will, or in some cases, through a written statement. This is particularly important if there is a risk that the other parent will not be able to care for the child, or if the parent wishes someone else to have custody in the event of their death. Under the Children Act 1989, a parent with parental responsibility can name a guardian to take over care if they pass away.
If both parents have parental responsibility and one parent dies, the surviving parent’s rights generally override any nomination of a guardian. However, if the surviving parent is unable or unfit to care for the child, the court will consider the nominated guardian’s suitability. While the nomination doesn’t have automatic legal force, it will be given significant weight by the court, particularly if the child’s welfare is at stake.
Can the nominated guardian be challenged?
If the surviving parent disagrees with the nomination of a guardian made by the deceased parent, they can challenge it in court. The court will consider all factors, including:
- The child’s welfare, which is always the court’s paramount consideration
- The relationship between the child and the surviving parent
- The child’s own wishes and feelings, particularly if they are of an age where their views can be considered
- The ability of the nominated guardian to meet the child’s needs
Ultimately, the court will make a decision that prioritises the child’s welfare, even if it goes against the surviving parent’s wishes or the nomination made by the deceased parent.
Can other family members make a claim to be guardian?
Other family members, such as grandparents, aunts, or uncles, can apply to the court for guardianship of the child if they believe it would be in the child’s best interests. They can either make an application for a child arrangements order or a special guardianship order (following obtaining the court’s permission to make the application), which would give them the legal authority to care for the child.
The court will consider the strength of the relationship between the family member and the child, as well as the child’s emotional and developmental needs. However, such applications are only likely to succeed if the court believes that the family member’s involvement would significantly benefit the child more than the surviving parent or the nominated guardian would .
What factors help a parent’s case for appointing a guardian?
If a parent wants to nominate someone other than the surviving parent to look after their child, several factors can strengthen their case:
- Evidence of the surviving parent’s inability to care for the child, such as concerns about abuse, neglect, or other risks to the child’s welfare.
- A strong bond between the child and the nominated guardian, demonstrating that the child would benefit from remaining in their care.
- The wishes of the child, especially if they are old enough to express a reasoned preference.
- Detailed provisions in a will or guardianship document, explaining why the nominated person is the best choice for the child.
Custody scenarios based on marital and parental status
Married couple and one Parent dies
If a married couple has a child, both parents will typically have parental responsibility. If one parent dies, the surviving parent retains sole parental responsibility and will usually continue to care for the child. This is the default legal position, assuming the surviving parent is willing and able to care for the child.
In this situation, any wishes or arrangements the deceased parent made about who should care for the child will not usually override the surviving parent’s rights. If the surviving parent is deemed unfit by a court or unable to care for the child (for example, because of incapacity), then the courts may step in to determine what is in the child’s best interests. A nominated guardian may play a role in such decisions, but the court will have the final say.
Unmarried couple and one parent dies
In the case of an unmarried couple, the question of who has parental responsibility becomes crucial. If both parents have parental responsibility (for example, the father is named on the birth certificate or has secured parental responsibility by agreement), then the child is likely to remain living with the surviving parent, as in the case of married couples.
However, if the father does not have parental responsibility, the situation can be more complex. Even if the father has played an active role in the child’s life, he will need to apply to the court for a parental responsibility order if it wasn’t established previously. Here, any wishes of the deceased parent for someone other than the biological father to care for the child could carry more weight, although the court would ultimately decide based on the child’s best interests.
Unmarried couple and the mother dies
In many cases where the parents are unmarried, the mother will have sole parental responsibility, especially if the father is not listed on the birth certificate or has not taken steps to obtain parental responsibility. If the mother dies in such a situation, the father will need to apply to the court to gain parental responsibility if he does not already have it.
A guardian nominated by the mother (in her will or through a legal guardianship arrangement) may be in a stronger position to take over the child’s care if the father does not have parental responsibility or if the court deems that it would not be in the child’s best interests to live with him. However, the court will always consider the biological father’s role and ability to care for the child when making decisions.
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