Whilst watching the BBC’s latest underwater thriller ‘Vigil’ an important point raised its head, which would have been missed by many, or at most a tear would have been shed for the main character’s heartbreak. 

 In case you missed it (and this is not a spoiler alert), the main character lost her partner of many years, which was sad in itself, however, at that point she also lost the daughter she had raised and called her own.  The daughter had lost both her natural parents and despite having a woman whom she considered her mother, she was placed with her nearest natural relatives, her grandparents.  Our main character was left fighting for residency and with limited access to the girl she had raised as her daughter. 

 

No automatic right to access for step-parents 

 There are many blended families in the UK, where people are raising and forming family ties with children that are not naturally theirs.  As a step-parent there is no automatic right to access of step-children, regardless of the time they have known or raised their step-children.  Therefore when a natural parent passes, the children will go firstly to their remaining natural parent, provided they have parental responsibility, and failing that, to their blood relatives who are able to care for them. 

 This can be heart-breaking to a step-parent as any access is entirely dependant on those whom the child has been placed with.  

 If there is a remaining parent, a child may be placed into their care unless a step-parent has had a Judge make an order for parental responsibility, a Child Arrangements Order setting out that the child should live with them, has adopted the child or has become a legal guardian.  However, if there is no remaining parent, how can a step-parent be afforded rights of contact or have the step-child remain in their care?  

 

 Ensuring a step-parent can remain a guardian when no natural parents remain 

 This is where a Will can become a very useful tool for widowed parents who have entered into a new relationship.  By specifically appointing a guardian in a Will, the guardian will gain parental responsibility, giving them all the responsibilities they would have as a parent, including making decisions about schooling, health and where the child will live.    

 This can be very important and should not be underestimated or overlooked.  By providing a guardian, especially a person the child already knows and trusts, further heartbreak and upheaval can be avoided, allowing children to mourn the loss of their parent without the worry of where they will live and who will be caring for them. 

 

Appointing a natural father as a guardian 

 Something that should also be mentioned is that mothers will automatically obtain parental responsibility on the birth of the child, however unless married at the time of the birth, the father will only be granted parental responsibility if added to the birth certificate  (for births registered after December 2003), if a Parental Responsibility Agreement has been entered into or again, it has been awarded through a court order.  This could mean that natural fathers need to fight for residency of their child on the mother’s death if they were not married at the time of the birth or were not registered as the child’s father on the birth certificate, even if care had been consistent through their child’s life. If court proceedings are issued, the child’s wishes and feelings will be considered in light of their age and understanding.  

 

How a guardian can be appointed in a Will 

 We continually stress the importance of a Will and how estate planning can help save your remaining family time, money and further grief.  Appointing a guardian is part of that planning, ensuring your children are cared for in the event of your demise.   

 It is not something many people will want to think of or plan for, but it is an easy process and once done, means you can rest in the knowledge your children will be cared for by the person you trust the most with the responsibility. 

 A guardian should be someone over the age of 18 and an individual (not a company).  There are many things that should be considered when choosing someone, but important points should be: 

  • Who would offer as little change to a child’s current lifestyle? This includes the area they live, the schools they attend and how they would have access to other family members. 
  • Does the person have the means to care for the children, this means not only the financial aspect (which may be covered through a trust for the children created in your Will) but the property they live in. 
  • Do they have any issues that could prevent them from looking after the children until they are 18, such as a progressive illness? 

 It is also important to talk to the people you are considering, as they may not wish to take on the responsibility.  Appointing a guardian does not automatically place the children in their care should you pass away, they can decline the appointment, so if this can be pre-empted you can ensure you find a person capable and willing to act. 

 If you would like to discuss any of the points raised in this point, please feel free to contact us at Tiger Law for more information or to arrange a consultation on the best options when it comes to planning your estate and writing your Will.  Contact us on 01233 227 355 or admin@tiger-law.com. 

 

Author: Natasha Marshalsea-Harding 

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