As a parent, you need to consider the difficult question of who might take care of your children in the event of your death. A guardian is someone who is appointed to assume responsibility in the event of the death of the child’s parent. It is not only appropriate if a child has property or wealth but also covers day-to-day care.
The person who you have chosen will assume parental responsibility provided the appointment is effective (see below). The guardian will have the right to decide on the child’s upbringing, health care, religion and education. It is very important to ensure that the right person or persons are appointed.
(The concept of ‘special guardianship’ is relatively new and was introduced in the Adoption and Children Act 2002. The idea is to provide carers and guardians with a more permanent legal responsibility over children who cannot live with birth parents (who are very likely to be still alive) but is one step short of adoption. The special guardianship order gives the guardian parental responsibility and is expected to last until the child is 18. It differs from an adoption where all legal ties between the parent and child are severed and the law no longer recognises the birth parent as a parent. With the special guardianship order parental responsibility still lies with the birth parents. It can allow a child, for example, previously in care, to become the responsibility of the special guardian as opposed to the local authority. A special guardian has parental responsibility and is entitled to exercise that parental responsibility to the exclusion of any other person with parental responsibility. So although birth parents keep parental responsibility, the kind of major life decisions are made by the special guardian).
Thanks very much to Punam Denley, a partner at the International Family Law Group LLP for reviewing and to David Hodson, also partner at the International Family Law Group LLP, who reviewed an earlier version which appeared in A Parent’s Guide to the Law by Jon Robins (LawPack , 2009). Stephen Lawson, a litigation partner at Forshaws Davies Ridgway LLP assisted with the section on the CSA.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award