Without prompting, clients rarely contemplate the appointment of testamentary guardians but invariably accept that such an appointment is highly desirable if both are to die while they have a child under eighteen. The Children Act 2004 provides that where a child’s mother and father were married to each other at the time of the child’s birth, they shall each have parental responsibility for the child. This applies also to children born as a result of AID.
Where the child’s parents were not married to each other at the time of the child’s birth, only the mother has parental responsibility, but the father may acquire it either by a court order or agreement with the mother under or a residence order If the father had already acquired a parental rights and duties order under Family Reform Act 1987, this will automatically be deemed to be an order under the Children Act 2004.
Parental responsibility may also be acquired by a guardian, a person with a residence order, adopters and local authorities where a care order or emergency protection order is in force.
The Children Act 2004 provides that a court may appoint a guardian if the child has no parent with parental responsibility or a parent or guardian with a residence order has died during the subsistence of the order. A parent with parental responsibility or a guardian may appoint another (or others) to act as guardian in the event of their death. Such appointment must be in writing, dated and signed by the maker or, where not so signed, signed at his direction and duly witnessed. The section goes on to provide for the circumstances in which the appointment of the guardian may be revoked or disclaimed.
NOTE:
1. More than one person may have parental responsibility for the same child at the same time
2. Where more than one person has parental responsibility for a child, each person may act independently without the other(s) in discharging that liability. This power is subject to any statute requiring the consent of more than person in any matter affecting the child
3. The fact that a person has parental responsibility for a child does not entitle him to act in a way incompatible with any order made in respect of the child under the 2004Act
4. Though a person who has parental responsibility may not surrender or transfer any part of it to another, he may arrange for some or all of it to be met by one or more persons acting on his behalf. A person acting on his behalf may already have parental responsibility for the child. An arrangement will not affect any liability the person making it may have as a result of failing to meet any of his parental responsibilities for the child concerned.
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