We are often reluctant to talk about death therefore it's not a question that many people want to consider. We want to be there for our children for at least the entirety of their childhood and hopefully much longer. However, should the worst happen, you may assume that the surviving parent would automatically have guardianship of any children that you have together.
This is not necessarily the reality. The circumstances in each case will be considered.
If the mother is the surviving parent, she will be able to continue to care for her child, providing there are no safeguarding issues.
Issues can arise when the father is the surviving parent as he will not always automatically have 'parental responsibility'.
What is Parental Responsibility?
Parental Responsibility is defined in s 3(1) Children Act 1989 as being:
“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
If a person has parental responsibility it means that they can make decisions regarding the child's education, medical treatment, holidays, registering or changing of names and determining the child's religion. This is not an exhaustive list.
To determine if the father has parental responsibility, it is necessary to look at when the child was born and at the parent's relationship.
It may be possible to arrange your wishes in regards to who will have parental responsibility or guardianship by making a will in your lifetime.
It is well worth considering drawing up a will to cover this unfortunate possibility. In a situation where no will exists and the person that you want to care for the children does not have parental responsibility, the Courts will have to determine who shall care for your child. It is possible that the child could end up in foster care if the Court cannot quickly resolve the matter.
What can I do?
At Gepp Solicitors we have been helping our clients achieve peace of mind for over 250 years. Speak to one of our Private Client team today for advice on formalising your wishes regarding the care of your children should the worst happen. The team can be contacted on 01245 228125 or PrivateClientEnq@gepp.co.uk.
This is not legal advice; it is intended to provide information of general interest about current legal issues.