WillsWhat is Parental Responsibility and Why is it Important for Appointing Guardians

Parental responsibility is a fundamental concept in family law that refers to the rights, duties, powers, and responsibilities that parents have towards their children. The issue of parental responsibility becomes particularly crucial when it comes to appointing guardians for minor children in a will. This article will explore the notion of parental responsibility, who holds it, and how it impacts the process of selecting guardians in a will.

What is Parental Responsibility?

Parental responsibility encompasses the legal rights and responsibilities that parents have towards their children’s upbringing and welfare. This includes, but is not limited to, providing the child with a home, decisions regarding the child’s education, medical treatment, and overall well-being. It does not include a duty to maintain the child financially, all parents have this duty regardless of whether they have parental responsibility.

Who Has Parental Responsibility?

Parental responsibility needs to be considered for the following people.

1. Biological mothers: a child’s mother will automatically have parental responsibility
2. Biological fathers: a biological father will have parental responsibility if any of the following apply.

• He was married to the mother at the time of the child’s birth or later marries the mother;
• He was registered on the birth certificate as the father or the birth was later re-registered with him as the father;
• A parental responsibility agreement is made; or
• The father obtains a parental responsibility order from the court

If none of the above apply, the father will not have parental responsibility.

3. Step-Parents: Step-parents do not automatically have parental responsibility. They can acquire parental responsibility by entering into a parental responsibility agreement with all those who already hold parental responsibility or by obtaining a parental responsibility order from the court.
4. Adoptive Parents: Adoptive parents automatically gain parental responsibility when the adoption process is completed.
5. Guardians: If a person is appointed as a guardian in a will, they will obtain parental responsibility for the child.
6. Special Guardians: Where the court creates a special guardianship order to appoint a person as a child’s special guardian, that order also confers parental responsibility which can be exercised to the exclusion of any other person with parental responsibility apart from another special guardian.
7. Same sex parents: Parental responsibility for same sex couples is a much more complicated situation. It is more difficult for male couples than female couples and the ease of gaining parental responsibility will vary from case to case due to a variety of circumstances.

Appointing Guardians in a Will

When creating a will, parents or any other person with parental responsibility can appoint guardians for their minor children. The appointment of guardianship in a will is essential as it allows parents to have a say in who will care for their children and oversee their upbringing if the unexpected happens.

A guardianship appointment will only take effect on death if one of following applies:

• No parent with parental responsibility has survived the deceased; or
• Immediately before death a Child Arrangements Order (previously residence orders and contact orders) was in force in which the deceased was named as a person with whom the child was to live (unless the order was also made in favour of a surviving parent of the child); or
• The deceased was the child’s only (or last surviving) special guardian.

In most cases for parents therefore, if both parents have parental responsibility an appointment of guardians could not take effect if the other parent has survived, but if the other parent did not have parental responsibility or the deceased parent had a Child Arrangements Order in place, the guardianship appointment could take effect even if the other parent survives.