A difficult decision

Many parents fail to consider who would take care of their children if they were not able to. The topic can be emotionally charged and often sparks disagreement between parents. New legislation which came in to force this April seeks to address some of the thorny issues that can arise. This article discusses the options available and how the law is evolving.

Many parents find the discussion about who would look after their children in the event of death or another form of incapacity starts with whom they would NOT want as long-term carers! Once they have agreed on the way forward, parents can name a testamentary guardian in their will. Provided there is no other living parent with what's known as parental responsibility, the named testamentary guardian is presumed to be the carer for the child. However, choosing such a guardian does not confer parental responsibility and any guardian would be strongly advised to acquire that responsibility.

What is parental responsibility?

Parental responsibility is defined as "all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property." Acquisition of this responsibility is crucial in acquiring the legal right to make decisions in a child’s life. Until April, all decisions relating to children were made under the Children Act 1989. A potential carer would make an application for a residence order, which would automatically confer parental responsibility.  The Court’s permission would normally be required if the applicant was not one of the child's parents.

How is the law changing?

Now, after more than 20 years, that is set to change, with the Children and Families Act 2014 abolishing Residence and Contact orders and introducing the “child arrangement order”. Orders made under the new act last until the child reaches 18 years or until other order is granted.

A child arrangement order regulates with whom a child lives, spends time or has contact and when these arrangements take place. A key difference to residence orders is that parental responsibility is no longer automatically conferred and requires a separate application.

Parental responsibility can be conferred with an adoption order, which completely severs the responsibility of the natural birth parents and is irrevocable other than in exceptional circumstances. This can be advantageous in cases relating to children less than five years of age where research shows stability is crucial to development. However because the legal status is altered, some families choose to avoid this route, for example grandparents or aunts and uncles who are happy to care for older children permanently but do not want to risk undermining other important relationships.

Special guardianship

To bridge the gap between private law orders, like child arrangement, and formal adoption, “special guardianship” was introduced in 2002.  These orders seek to provide stability for children who, for example, are cared for by relatives or alternative carers who do not wish to assume the formal role of parent. Unlike adoption, they maintain and preserve links with other birth family members. The special guardianship order confers parental responsibility upon the guardian and – most importantly – the special guardian is entitled to exercise that parental responsibility to the exclusion of a parent or anyone else with parental responsibility.