Guardianship

There are various types of guardianship for a child in English law:

  • Special guardianship
  • Guardianship appointment by Will
  • Guardianship by court appointment

Special guardianship

The English court can appoint by court order a special guardian to care for a child.

A special guardian has day to day care of a child and also acquires parental responsibility for the child (but not legal parenthood).  A special guardian’s parental responsibility overrides the parental responsibility of anyone else with holds this (eg birth parents), although it does not extinguish the parental responsibility (or legal parenthood) of others for the child.

A special guardianship appointment can be useful, for example in circumstances where a birth mother is unable to care for her child and a family member (eg a grandparent) assumes care of the child, keeping the child within the wider family.

A special guardianship order is intended to give a secure legal relationship between the special guardian and the child, whilst maintaining the child’s legal connection with his/her legal parents.

An individual can apply for a special guardianship order if they hold a child arrangements order for the child or have lived with the child for three years.  Anyone else seeking to obtain a special guardianship appointment must first seek special leave of the court.

In determining an application for a special guardianship appointment in respect of a child, the court will commission an in-depth local authority report prepared by a social worker and consider all the relevant circumstances of the case.

Guardianship appointment by Will

You can appoint legal guardians in your Will to care for your child in the event of your unexpected death.  It is good practice to do this if you are a parent or a prospective parent of a child. A guardianship appointment confers legal care of the child upon the guardian and parental responsibility for the child. A guardian is not financially responsible for the child.

Guardianship appointments are also important to secure the legal position of significant adults in a child’s life  who otherwise lack legal status for them (for example  a cohabitee, intended parents through surrogacy, a co-parent and same-sex partner).

Guardianship by court appointment

The court can appoint a legal guardian for a child if no one else has legal responsibility (for example the child’s parents die without a Will appointing legal guardians).

The court can also determine a guardianship appointment if a dispute arises between individuals.

I can help with:

  • Preparation of Wills appointing legal guardians for a child
  • Advice and legal representation to obtain legal guardianship for a child
  • Advice and legal representation where a legal guardianship dispute arises

For more information or to discuss your situation in more detail contact me by email louisa.ghevaert@michelmores.com or by telephone +44 (0)207 7886382.  You can also find out more about children and parenting law, fertility law, family law and disputes at Michelmores’ specialist webiste www.michelmores.com/what-we-do/services/fertility-law.