I have once again been asked a common question.
Two parents have a child and then separate – the father leaves and does not pursue contact, direct or indirect and does not contribute to the child’s maintenance for some years. What can the resident parent do to ensure the child is properly looked after in the event of her death?
The gender assumptions in the above scenario are only relevant in that the first question to consider is whether the father does or does not have parental responsibility. He will automatically have PR if either he was married to the mother or if the child was born after 1.12.03 & his name was registered on the birth certificate. He may also have PR if he and the mother entered into a PR agreement or it has been ordered by the court. A mother always has PR.
If the father has PR, the mother can appoint someone as Guardian by making a will – typically she wants to choose one of her family members. However, this appointment will not take effect immediately on her death if the father with PR is still alive.
What can a mother or father do in these circumstances to ensure the child ends up being cared for by their chosen candidate?
It might be possible to appoint the Guardian jointly ie with the agreement of the non-resident parent. Obviously this may have a number of consequences including reviving the interest of the other parent in the child which may or may not be desirable or in the child’s interests.
The resident parent could also apply for a residence order – this has the same drawbacks as the joint appointment approach in that the non-resident parent would have to be contacted and given notice of any application to the court. In addition, this would not directly give effect to the appointment of the Guardian under the will. It would only mean that if the chosen candidate made an application to court after the death of the parent who appointed them, the court would have the power to confirm the appointment.
I would still suggest it is worth making a will appointing the chosen person as Guardian as this will tell the court what the wishes of the main carer were. It would also be useful to write a letter to go with the will to set out the involvement / non-involvement of the father and any concerns the mother would have about his caring for the child including the child’s important existing relationships to other family members with whom they are in regular contact.
If necessary, after the resident parent died, the chosen family member could apply to the court for a residence order. That is where I think the will appointment and letter is worthwhile. If that order is made, the court would be ordering that the child should live with the applicant and parental responsibility would automatically come with it (though this would technically be shared with the non-resident parent). That parent would have to be notified of the application (assuming their whereabouts were known or could be discovered). At that point the court would consider the welfare checklist and the absentee parent would be unlikely to gain residence assuming that the family member was capable of looking after the child and had a well established relationship with them. Contact with the other parent might be considered although the court would want to know why the parent effectively walked out of the child’s life and what was going on in their life at the time.
In other words the ‘rights’ of the parent might not supercede those of other family members (which is also in line with the Supreme Court’s thinking in a recent case, when the child stayed with grandmother rather than being sent to live with father, for the sorts of reasons above).
If making a will in these circumstances it may also be important to make sure that a trusted family member is appointed to be executor so that they can make sure that any money or property which would come the child’s way cannot be squandered away by the other parent if things don’t work out as I would predict.