Appointing a legal guardian in diverse family arrangements

It is important for parents to appoint a legal guardian for their minor child(ren) to ensure that, in the event of anything happening to the child’s parents, there will be a trusted individual who is capable of stepping into the parent’s ‘legal shoes’.

It is commonplace for a guardianship clause to be incorporated into the terms of a parent’s Will as it tends to be document which can be easily located following an individual’s death.

Why is appointing a guardian important?

The consequence of not appointing a guardian for a minor (i.e. somebody who is under the age of 18), is that, without the Court’s involvement, no individual will have the same powers and authority which a parent would ordinarily have. Therefore, even if an individual were to assume care responsibility for a child, they will not have authority to make decisions over the child’s education, medical treatment, etc, unless they are that child’s guardian. The alternative is to apply for a Court Order conferring such authority, however, this process can often be costly and slow.

Who can appoint a guardian?

To be able to appoint a guardian, you must have “Parental Responsibility” for the child. Parental Responsibility is a legal term referring to all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and their property. Parental Responsibility is what parents confer onto their chosen guardians.

There are certain circumstances in which individuals will automatically acquire Parental Responsibility. This will happen in the following scenarios:

• There will always be at least one individual who automatically has Parental Responsibility for a child when they are born. This is the child’s birth mother although this may be subsequently changed by a Court Order. Therefore, if you use a surrogate, they will be the child’s legal parent at birth. This is irrespective of whether a surrogacy agreement is in place. Surrogacy agreements are not legally enforceable in the UK; and
• If a child’s birth mother and her spouse are married or in a civil partnership with each other when the child is born, both of them automatically have Parental Responsibility.

This leaves questions over whether the following individuals could appoint a guardian for their child:

• A biological father who is not married to the birth mother;
• A biological mother who has used a surrogate (a gestational surrogacy);
• A spouse or partner of a biological mother who has used a surrogate;
• Same-sex parents; or
• A step-parent.

These are all examples of people who will not have Parental Responsibility for their child automatically. These individuals must therefore acquire before they are able to appoint a guardian for their child. Examples of how Parental Responsibility can be acquired include:

• Being named on a child’s birth certificate;
• Marrying a parent of a child who has Parental Responsibility;
• Entering into a Parental Responsibility Agreement;
• Obtaining a Parental Order from the Court; and
• Obtaining an Adoption Order from the Court.

Please note that this is not intended to be an exhaustive list.

How we can help

Parental Responsibility is a complex issue which often requires analysis of each child’s individual circumstances in order to determine who has the requisite authority to appoint that child’s guardian.

Our private client solicitors can provide you with legal advice regarding the relevant laws which are pertinent to your child and their family arrangement. We are also well versed in incorporating guardianship clauses into the terms of our clients’ wills.

For further information, please contact Luke Page on 01227 763939.