Legal status: guardianship and special guardianship
Guardianship: Private appointments
A guardian is someone who is appointed to care for a child after his or her parents have died. A guardian can be nominated by a child’s parents (and certain other people with responsibility for a child) before their death. The appointment must be in writing, signed and dated. In practice, guardianship appointments are usually made as part of a parent’s will. If you are responsible for a child, it is always sensible to put in place a will appointing guardians in case you die.
Guardianship appointments in wills can also be particularly useful in securing the position of parents without legal status (for example intended parents in surrogacy situations, and same sex partners who are not otherwise recognised as parents). Putting in place appropriate guardianship appointments during the pregnancy helps ensure that the intended parent is left with a right to care for the child if there is an unexpected death before their position is secured.
Please contact us if you would like us to help you to put in place appropriate specialist wills.
Guardianship: court appointments
Alternatively, the court can appoint a guardian for a child. Anyone can apply to be appointed if a child is left without any parents with parental responsibility, and the court will consider the child’s welfare as its paramount consideration in deciding whether to make the appointment and who to appoint.
Guardianship: status
A guardian has parental responsibility, but is not a legal parent. This means that he or she has all the authority to manage the child’s care, but is not financially responsible, and will not be treated as a parent for things like inheritance (which makes it important to put in place an appropriate will).
Special guardianship: what is it?
A special guardian is different from a guardian: it is someone appointed to care for a child by court order. A special guardian has parental responsibility for the child and is entitled to exercise that parental responsibility to the exclusion of anyone else with parental responsibility (apart from any other special guardian). The child’s birth parents do, however, retain their parental responsibility, although subject to the special guardian’s right to exercise sole parental responsibility.
A special guardianship order is intended to provide a secure and long term legal relationship between the special guardian and the child, whilst still preserving the legal link between the child and their birth family. Unlike adoption, it does not extinguish the birth family’s legal parenthood or parental responsibility.
Special guardianship: appointment
A special guardianship order may be made on the court’s own initiative or in response to someone applying to be made a special guardian.
Various categories of people are entitled to apply (including anyone who has a residence order or who has lived with the child for three years). If you do not fall into these categories, you must first ask the court’s permission.
If you apply for special guardianship, you must notify your local authority of your intention to apply, and they will be involved in the process by preparing a report for the court.
If you would like more information, please contact us.
