When working with clients, we often encounter less then straightforward family dynamics and structures that need to be carefully navigated. On occasion, the selection of guardians for minors can be a contentious subject when two parents are estranged or simply don’t agree – so where does parental responsibility fit with this?

Parental responsibility is a concept of family law that refers to the duties, rights, powers and responsibilities parents have towards their children. This can include providing the child with a home, decisions regarding the child’s education, medical treatments and overall well-being.

Who has parental responsibility?

There are a number of categories of individual who could be deemed to have parental responsibility;

• Biological mother
• Biological father if any of the following apply;
  • The father was married to the mother at the time of the childs birth or later married the mother
  • Registered on the birth certificate as the father
  • A parental responsibility agreement has been made or
  • The father obtains a parental responsibility order from the court
• Step Parents (via a parental responsibility order from the court
• Adoptive parents
• Guardians appointed via a will
• Special guardians (when the court creates a special guardianship order)
• Same sex parents (usually dealt with on a case by case basis)

Appointing guardians

When creating a will, parents or a person with parental responsibility can appoint guardians for their children. This guardianship will only take effect if

• No parent or person with parental responsibility survives the deceased
• A Child Arrangements Order was in which the deceased was named
• The person who has passed away was the only or last surviving special guardian.

Therefore, in many cases, if both parents had parental responsibility an appointment of a guardian could not take affect if the other parent had survived. However, if the other parent did not have parental responsibility or the deceased parent had a child arrangements order in place, the guardianship appointment could take effect even if the other parent survives.

Final Thoughts

These can be delicate conversations to have with clients and its important that whilst we respect clients wishes, they are informed of how the law may view and enforce those wishes…..or not in some cases.

Have a client case you'd like to chat through? Give us a call on 01522 500823 and let's talk.