Who would look after my child if I died?

Considering your death is never a cheery topic but it is one which should be thought about in advance. Whilst the immediate arrangements that spring to mind might include life insurance or preparing a Will, it is also important to consider who would care for any minor children (ie under the age of 18) you leave behind.

The decision about who will care for your child should you die will depend on a number of factors, with the first being consideration of who has Parental Responsibility (PR). PR is the rights, duties, powers and responsibilities that a parent has in relation to their child; these are automatically acquired by a child’s birth mother and acquired by a father if married to the mother at the time of the child’s birth or named on the child’s birth certificate.

For more information on PR, please read our previous insight: ‘Parental Responsibility and Court Applications regarding children’.

What if I am the only person with parental responsibility?

If you are the only person with PR for the child, you can appoint a guardian in your Will. By appointing this person (or people) as a guardian they will automatically obtain PR for your child upon your death.

If you do not appoint anyone, the court has the power to grant PR following your death. This will usually be a close relative, although it may not be the person you would choose. It will also likely involve the local authority’s Children’s Services Team and could result in your child being placed in foster care for a period of time whilst proceedings are finalised. This is, therefore, something better avoided where possible.

For the avoidance of doubt, if both parents were to die, this would lead to the same position as if there was only one parent with PR.

What if both mother and father have parental responsibility?

If both parents have PR and one parent dies, the child will automatically be placed in the care of the surviving parent and they will have sole responsibility for the child. This will happen regardless of where the surviving parent lives or whether they see the child.

If there is more than one surviving parent with PR (such as where a step-parent also has PR) there could be a dispute about where the child should live which may need to be resolved by the court through applications under the Children Act. Again, this would be best avoided and the appointment of a guardian in your Will would give a clear indication of who you would wish the child to live with.

What if I do not believe that it would be best for my child to live with the other parent?

Irrespective of whether your child has a good relationship with the surviving parent, where that parent has PR the primary position is that the child will live with that parent. If you do not want this it would be for your surviving family (or perhaps friends) to make an application to the court for orders under the Children Act to determine where the child should live. Unless there are significant safety concerns, the interim position would likely be that the child would remain with the parent with PR until matters are resolved.

If you wish for someone else to look after your child instead, you can make those wishes known in your Will. The starting point is the appointment of a guardian to demonstrate your wishes. As they won’t automatically obtain PR it would be best to also prepare a statement outlining the reasons why you wish for your child to live with the guardian you have selected and why you do not believe the other parent is the most appropriate carer.

Within your statement, you could include details of the following:

• how the child’s emotional, physical and educational needs would be better met;
• the likely effect on the child in both scenarios;
• any characteristics of your child which you believe would be relevant, such as their age, sex, additional needs, background, etc;
• any harm which the child has previously suffered or is at risk of suffering;
• how capable the proposed guardian is in relation to meeting the child’s needs, as opposed to the surviving parent.

Your chosen guardian should then utilise your statement to support and strengthen their application to the court.

If you have been diagnosed with a terminal illness you could even commence court proceedings in anticipation to ensure that you are able to participate (to the extent you are able) in securing your chosen carer for your child.

It should be noted that a guardian does not have to accept an appointment in a Will. You should always discuss this with your chosen guardian and ensure they are willing to act in your place in the event of your death before your child reaches adulthood.

Our specialist family and private wealth teams can assist you in navigating this sensitive topic. For further advice about your particular circumstances please do contact us.