Guardianship and parental responsibility are important to consider when reaching a new milestone in your life.
Having a child is often one of the happiest yet scariest moments in life. You meet your long-awaited little bundle of joy, but with that often comes the worry of becoming responsible for a tiny human.
Our Trusts & Estates Team frequently receives questions such as, “Who makes the decisions?” and “What happens to my children if something happens to me?”
These are questions that we at Talbots Law can assist with.
What is Parental Responsibility?
The law stipulates that all people with parental responsibility (“PR”) have equal rights, powers, duties, and financial responsibilities concerning that child.
When a child is born, PR is automatically acquired by the birth mother. In addition, fathers married to the birth mother or civil partners (both male or female) acquire PR automatically upon birth. Others can acquire PR (such as unmarried fathers or female partners) through consent (of all with PR), court order, or guardian appointment. This is not an exhaustive list, and other categories of people may acquire PR, usually as a result of court involvement.
Who Makes the Decisions About My Children?
Those with parental responsibility are equally responsible for making decisions regarding their children, including matters such as health, education, medical treatment, international travel, and religion. Even if a child does not spend time with or see a person with PR, they should still, by law, be consulted about decisions for the children. They are also still financially responsible for them and have a right to make decisions concerning them.
PR orders can be made at any time before a child turns 18 and automatically end when the child reaches the age of 18, when an adoption order is made, or by further order of the court. There are occasions where the court can look to remove a person’s PR or limit their rights and duties, but these are case-specific.
What if Those with Parental Responsibility Are Separated?
Even if separated, all people with PR still have equal rights, powers, duties, and financial obligations. Wherever possible, parents are encouraged to agree on arrangements for the children, including who they live with, where they live, and the time spent with both parents where appropriate. If an agreement cannot be reached, the court may need to become involved.
The court has the power to make orders concerning who should have PR. It can also become involved in day-to-day arrangements for the children, including where they live, their education, their name, and medical treatment. In some cases, the court may issue orders preventing contact with one parent, but this is rare and highly case specific.
What happens if I die?
If a person with PR dies while a child is still a minor, the arrangements for the children will depend on decisions made while that person was alive. Generally, where there is more than one person with PR, the children will live with the other parent. However, this may be avoided if there is a court order in place stipulating who the child is to live with and that person has appointed a guardian, or if a named guardian applies for a court order.
What Is a Guardian and Who Can Act as a Guardian?
A guardian is appointed to care for your children if they are under the age of eighteen. The legal guardian will provide a home for your children, offer educational support, and provide for them financially. Guardians are then able to follow your wishes regarding how you want your children to be raised. A letter can be prepared alongside your will and reviewed regularly to outline your wishes.
Parental Responsibility and Guardianship Clauses
Appointing a guardian in a will does not override parental responsibility, and the will only comes into effect when there is no one with parental responsibility.
The guardianship clauses of a will can be changed over time, either by amending the will (codicil) or making a new will, depending on your family’s situation.
Many people believe that they do not have sufficient funds to make a will. However, if you have children, a will is an essential step in protecting them, ensuring that your chosen guardians can act in their best interests and provide a stable family home.
What Happens If You Do Not Have Guardians?
If all those with parental responsibility were to die without a guardian appointed under the terms of a will, surviving family or friends would need to apply to the court to become a legal guardian. This can sometimes be a lengthy process and may cause a period of upheaval for the children. Where possible, this should be avoided.
What Next?
If you have a query concerning PR or arrangements for a child, a member of our private family law team would be happy to assist you.
If you would like further information on making a will, protecting your assets, or what happens when you die, our Trusts & Estates team is on hand to help.
Get in touch with a member of our team:
Disclaimer
The contents of this blog or any other published by Talbots Law cannot be considered as legal advice. You should take no action without prior consultation with a qualified solicitor or legal professional.