Choosing guardians for your children can feel like one of the hardest parts of writing a Last Will and Testament. However, parents sometimes name different guardians. Most parents just want certainty about who would care for their children after both parents die.
In England and Wales, each parent with parental responsibility can appoint a guardian, so they can make different choices.
Read more: Appointing a Guardian for Your Children
What Guardians Do
A parent with parental responsibility can appoint another individual as their child’s guardian. The guardian can then gain parental responsibility when the appointment takes effect. This covers important decisions about a child’s care and upbringing.
For example: It can include decisions about education and where the child lives.
Parents usually include the appointment within their Will. However, the law also allows certain written appointments outside a Will.
When a Guardian’s Appointment Takes Effect
Imagine that both parents hold parental responsibility. Parent A appoints Guardian 1, while Parent B appoints Guardian 2.
If Parent A dies first, Parent B normally continues to care for the child. Guardian 1 does not usually step into the surviving parent’s place immediately. Instead, Guardian 1’s appointment waits.
If Parent B later dies, the child then has no surviving parent with parental responsibility. At that point, both guardianship appointments may take effect. Therefore, Guardian 1 and Guardian 2 may both hold parental responsibility for the child.
Which Guardian Takes Priority
No general rule gives automatic priority to the guardian chosen by the second parent.
The first appointment does not simply disappear because the other parent made a different choice. Instead, both appointments can operate once no parent with parental responsibility remains alive.
The Children Act 1989 allows more than one person to hold parental responsibility simultaneously. Consequently, both guardians may have legal responsibility for the child.
However, existing court orders and unusual family circumstances can change the position.
When Both Guardians Agree
Fortunately, different appointments do not always create a dispute. Both guardians may agree that the child should live with one guardian. They also agree how the other guardian remains involved.
For example: They may agree arrangements for holidays and important family occasions.
In many cases, cooperation can give the child stability during an extremely difficult period. However, guardians should focus on the child’s needs rather than either deceased parent’s preference.
When Both Guardians Disagree
Disagreements can become difficult when both guardians hold parental responsibility.
For example: Guardian 1 may want the child to live in London, while Guardian 2 may want the child to live in Birmingham. They might also disagree about schools or contact with relatives.
If they cannot agree, either guardian can ask the Family Court to decide particular issues.
- A Child Arrangement Order can decide where the child lives and whom they spend time with
- A Specific Issue Order can resolve a particular question (such as which school the child attends)
- A Prohibited Steps Order can stop someone taking a particular step without the court’s permission
Applicants usually use Form C100 for these types of applications.
How the Court Decides
The court does not simply choose the guardian preferred by one parent. Instead, the court puts the child’s welfare first.
The court considers:
- The child’s wishes and feelings (depending on their age and understanding)
- The child’s physical, emotional and educational needs
- How any change in circumstances could affect the child
- If there is any risk of harm
Likewise, they consider each guardian’s ability to meet the child’s needs. Therefore, a parent’s Will provides important evidence, but does not override the child’s welfare.
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This article is for general informational purposes only and does not constitute legal or financial advice. While we aim to keep our content up to date and accurate, UK laws and regulations are subject to change. Please speak to a professional for advice tailored to your individual circumstances. Will Guardian accepts no responsibility for any issues arising from reliance on the information provided.