Parental Responsibility (“PR”) means the rights and responsibilities to make decisions for a child who is under the age of 18.

Mothers and married parents always, have PR.  Fathers who are named on the child’s birth certificate, or who enter into a formal agreement will also have PR. The court can also make an order giving PR. 

But what happens if one or both parents die or if a single parent dies and the other parent has PR but has had little or nothing to do with the child.  Who cares for the child then? 

In blended families, parents sometimes assume that a step-parent will automatically take on care of their children. However this will not be the case where the step parent does not have PR.

Parents need to give consideration to appointing a guardian in their Will.  A parent may understandably not want to consider their own death, particularly if they are in good health, however in order to ensure their children are cared for by someone they trust and whom the children are familiar with, this issue needs to be considered.

Anyone can be appointed as a guardian as long as they are over 18.  In addition, more than one person can be appointed as a guardian.  

Appointing a guardian can be achieved by a provision in your will.  This allows the parent to have that conversation with their chosen guardian in advance to ensure that they are happy to take on the role should it become necessary.  When appointing a guardian, a parent can also include their wishes as to how they would like the chid to be raised e.g., in relation to religion or schooling decisions. 

A guardian is given PR in the event of the death of the person appointing them and therefore takes on the responsibilities that PR provides.  If there is another person who has PR for the children, then the guardian will share this. 

Appointing a guardian can be achieved by way of provision in your will.  Applications can be made to the courts by a proposed guardian, but they would need to attend a family mediation meeting first.  When considering such an application the court will have regard to the following:

• The child’s own wishes and feelings and their age and understanding
• The child’s relationship with the prospective guardian
• How capable the proposed guardian is of meeting the child’s needs
• The recorded wishes of a deceased parent and the wishes of the child’s nearest relatives. 

If the person appointing the guardian dies and there is no other person with PR, then the appointment of the guardian will take effect immediately.  If there were child arrangements order in place naming the guardian as the person with whom the child should live, then the appointment will also take effect immediately even if there is another who holds PR.  The guardian will then share PR with that other person. 

If the surviving parent was also named in the child arrangements order as a party with whom the child should live, then then appointment will not take effect immediately.  If there is a dispute regarding where the child should live, then the parent of the proposed guardian would need to make an application to the court. The parent could also apply to have the guardianship terminated.  The appointment of a guardian will also not take effect immediately if the surviving parent has PR and there is no order in their favour.  It would not take effect until the surviving parent had died. 

The guardianship would end when the child reaches the age of 18 or if an application to terminate the guardianship was made to the court before then and succeeded. 

Our Family Department are happy to discuss these matters with you in more detail and explore with you the right solution for your family. Contact our friendly team for assistance.

Article written by Natasha Aspinall

The post Guardianship: what exactly is this? Who can be appointed as a Guardian and who will care for my children if I die? appeared first on Brindley Twist Tafft & James.

I understand it is difficult, especially after separation, for parents to agree on anything. A child’s education is key though in determining how their life will plan out.

If you cannot agree on the school, then the Court can decide. If one parent applies for a school which you object to then you can apply to stop the application by applying for a Prohibited Steps Order. If you are applying to stop the child attending a specific school I advise clients to also apply simultaneously for a Specific Issue Order which will determine that issue, in that case which school the child will attend. If you fail to make this application, it leaves the question of which school the child will attend.

With school applications, OFSTED reports are just one piece of evidence that the Court will consider. It is not always the best school in the area that is the most appropriate for the child. In considering whether to make an order, the child’s welfare must be the court’s paramount consideration and in relation to contested applications, it must have regard to the welfare checklist, i.e.:

* the wishes and feelings of the child concerned
* the child’s physical, emotional and educational needs
* the likely effect on the child if circumstances changed as a result of the court’s decision
* the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
* any harm the child has suffered or may be at risk of suffering
* the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
* the powers available to the court

The court must always bear the ‘no-delay principle’ in mind. This prevents any delay in deciding the case, as otherwise this would be prejudicial to the child’s welfare. Furthermore, the court must be satisfied that making an order is better for the child than making no order at all. Therefore you must have substantial reasons for wanting to bring this claim.

If you feel that your opinion is not being considered in relation to the school application, telephone me to discuss the next steps. Depending on the child’s age, they have a say and their wishes and feelings are always paramount.

I advise looking at schools in the catchment area with your child and noting the pros and cons to each before making an application. The court will want to know that you have not made this decision lightly and that you can give valid reasons for wanting your child to attend a particular school.

These applications can take several months to process through Court, so please call me on 02476 531532 in good time, especially if you have concerns about the school your child may be attending next year.

Melanie Davis (née Timms)
Family Solicitor

The post Do I Have a Say on Which School My Child Attends? appeared first on Brindley Twist Tafft & James.