Michael Jackson may have passed on, but his family and his children still seem to be squabbling. Although Michael’s mother has now been reinstated as the legal guardian of his children, this was only until a court hearing a few days ago on 22 August.
Parenting on Female First
So what happens in England if a parent dies? Can they ensure that a nominated individual will care for their children on their death and what can be done to ensure that this occurs without exposing the child to bitter battles like those that appear to be tearing the Jackson family apart?
According to David Hodgson, Partner at Fisher Meredith LLP and expert in the family department, being enshrined in the heart of our law concerning children is the concept of parental responsibility. This refers to all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.
Mothers, married father and unmarried fathers who are registered as the child’s father on the child’s birth certificate after 1 December 2003 will all acquire parental responsibility automatically. Otherwise parents must acquire Parental Responsibility by the agreement of the child’s mother or by court order.
A parent with parental responsibility can appoint a testamentary guardian in their will. This will mean that on the death of that parent, as long as there is no other person with parental responsibility that person will acquire parental responsibility for the child. There is one exception - if there is a residence order in favour of the deceased appointer then any testamentary guardian will acquire parental responsibility automatically, even if another person i.e. the other parent, has parental responsibility. The guardian can choose to terminate their own appointment.
But does the acquisition of parental responsibility automatically mean that the child will live with them? The short answer is no but it does carry weight.
If there is no dispute about the child’s residence then there will be no issue but if there is a dispute, having parental responsibility will allow them to apply to the court for a residence order which will determine where a child should live. The court will be bound to follow the principles of child law and make a decision based on the welfare of the child, which will be the court’s paramount consideration. In doing so the court will take into account a list of factors including the wishes and feelings of the child, the child’s needs, the child’s characteristics and the capacity of the proposed carer.
Therefore there is absolutely no guarantee that a court will follow a parent’s wish as to who a child should live with, but you can do a number of things that would help to reduce any later conflict:
1) If you can, discuss the issue with the other parent and reach an agreement on the issue
2) However morbid it may seem, make practical arrangements with a nominated person to step in to care for your child if the worst should happen
3) Make a will and appoint that person as a testamentary guardian. Ensure the person nominated knows they have been appointed and that they are willing to act in this capacity and give them a copy of the will for safekeeping
4) You can also draft a letter of wishes which can be kept with your will. Although this is not binding it can be persuasive.
Making provisions for your child now, even if you hope they will never be needed, gives you, your child and the rest of the family clarity and peace of mind.