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When To Consider Legal Guardianship

By: Louise Smith, barrister - Updated: 6 Nov 2017 | comments*Discuss
 
Legal Guardianship Child Parents

Q.

My son is 14 years old. Sadly, his dad passed away five years ago. I now have a new partner that lives with us, and my son and my partner get on really well.

My partner and I have discussed some kind of legal guardianship, in case of my passing while my son is still a child. Is there such a thing ?

(Miss D.M, 2 December 2008)

A.

Legal guardianship, where a child loses both parents, is a subject which should be considered by all parents. Naturally, it is a very difficult topic and one that many parents would probably prefer not to address. But because your son has already experienced the tragedy of the death of his father, this is a subject that you have already thought about. The fact that you have found a new partner who gets on well with your son is good news, and he may seem like the obvious person to consider for this very important role.

You must think about exactly what being a Legal Guardian would involve. The most important factors are stability for your son should the unthinkable happen, and choosing a person that you trust and who is prepared to take on all the long-term emotional and financial responsibilities for your child.

Before choosing a person to be a legal guardian you must be as sure as you can be that they are the right person and will be there for the child. You describe your partner as being “new”. It sounds as if he is happy to take on this responsibility but do make sure that he is the right person. There may be other people who could also act as legal guardian, such as grandparents, any brothers or sisters you may have or close, long-term friends.

To appoint a legal guardian for your son you should either:

  • Prepare a will in which the individual is named as your son’s guardian.
  • OR
  • Prepare a document, that must be dated and signed, which states that a particular individual will become your son’s legal guardian if you die.
It would be sensible to discuss your choice of legal guardian with anyone else who may have an interest in your son’s wellbeing, such as other family members. Even if you prepare a will or specific legal document dealing with this issue, the decision is not necessarily legally binding.

Someone who disagreed with your choice of guardian could bring a legal case to change the person who has guardianship. For this reason, it is vital to discuss the decision with anyone who does have an interest in your son’s welfare to ensure that there is no disagreement if guardianship becomes necessary. If such a case was brought, the court would consider what was best for the child and reach a decision about whether the person you appointed, or someone else, is the appropriate person to look after your son.

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I want to find out. My mother in South Africa has just passed away, is there any way my sister can move to England so I can look after her? She's only 16. She's a foster sister and has been with my family since birth, her mother threw her away the day she was born. She's been with us since birth
Sylvia - 20-Aug-17 @ 12:36 PM
Mumofboys - Your Question:
Can I make a will to appoint a legal guardian for my children if their father is still living? Their father is on their birth certificates so has legal responsibility however we split up soon after they were born and has not been in their lives since (they are twins). I experienced domestic abuse during the relationship and he has since become a drug addict, so is in no fit state to look after children. If I was to die can I appoint a family member to be their guardian?

Our Response:
Make your choice of guardian absolutely clear in your Will, this will definitely be considered in the unfortunate event of your early death.
LawAndParents - 18-Aug-17 @ 2:35 PM
Can I make a will to appoint a legal guardian for my children if their father is still living? Their father is on their birth certificates so has legal responsibility however we split up soon after they were born and has not been in their lives since (they are twins). I experienced domestic abuse during the relationship and he has since become a drug addict, so is in no fit state to look after children. If I was to die can I appoint a family member to be their guardian?
Mumofboys - 16-Aug-17 @ 10:44 PM
Shaz - Your Question:
I'm a South African born female who is now a British Citizen, My daughter who is 14 years old was also born in South Africa and her biological father was Nigerian, he left when she was a year old never to be seen again, I have raised her as a single parent until I got married 8 years ago to a British man. We immigrated to the UK and subsequently became British Citizens. the issue is, Her biological father's name is on the unabridged birth certificate. I had to prove to the British Gov that I have had no contact with this man and that I have been solely responsible for bringing my daughter up which I did through years of medical bills, school fees and everything else. 3 years ago we were able to visit South Africa to see family without any problems, however the rules have no changed in that we now have to take along unabridged birth certificate and a letter from the other parent if both not travelling with the child. I obviously cannot provide this as I haven't seen this man for 13 years , my daughter doesn't even remember him and sees my husband as her dad etc. We would like to visit family in SA this coming Christmas but given the new rules it seems it will not be possible unless I apply for legal guardianship of my daughter and have him removed. How can achieve this from the UK? She has a British passport and her SA passport expired in 2015 and the SA high commission wouldn't renew it without father's consent despite me explaining that the father isn't in the picture and hasn't been since she was one. They weren't interested and basically told me to go and find him, they were not very helpful. I would like to know if there is a way I could somehow get legal guardianship of my daughter to enable her to visit South Africa with us?Your help and advise would be appreciated.

Our Response:
We don't really know how you can get around this obstacle unfortunately. You may have to seek the advice of an immigration specialist. Could your new husband adopt her here in the UK? The adoption certificate might then help with the other documentation.
LawAndParents - 27-Jul-17 @ 12:08 PM
I'm a South African born female who is now a British Citizen, My daughter who is 14 years old was also born in South Africa and her biological father was Nigerian, he left when she was a year old never to be seen again, I have raised her as a single parent until i got married 8 years ago to a British man. We immigrated to the UK and subsequently became British Citizens. the issue is, Her biological father's name is on the unabridged birth certificate. I had to prove to the British Gov that I have had no contact with this man and that i have been solely responsible for bringing my daughter up which i did through years of medical bills, school fees and everything else. 3 years ago we were able to visit South Africa to see family without any problems, however the rules have no changed in that we now have to take along unabridged birth certificate and a letter from the other parent if both not travelling with the child. I obviously cannot provide this as i haven't seen this man for 13 years , my daughter doesn't even remember him and sees my husband as her dad etc. We would like to visit family in SA this coming Christmas but given the new rules it seems it will not be possible unless i apply for legal guardianship of my daughter and have him removed. How can achieve this from the UK? She has a British passport and her SA passport expired in 2015 and the SA high commission wouldn't renew it without father's consent despite me explaining that the father isn't in the picture and hasn't been since she was one. They weren't interested and basically told me to go and find him, they were not very helpful. I would like to know if there is a way I could somehow get legal guardianship of my daughter to enable her to visit South Africa with us? Your help and advise would be appreciated.
Shaz - 23-Jul-17 @ 2:12 PM
Can my husband & I become gurdians to my nephew who lives in Saudi Arabia We live in UK & are British citizens
K - 14-Feb-17 @ 10:49 PM
Guardianship SA to A - Your Question:
My husband and I are both South African citizens. We want to appoint my brother, an Australian citizen, as the legal guardian of our son should we both pass away. I want to know how difficult it would be for my brother to have my son moved to Australia and whether he will have access to the funds available in the testamentary trust.

Our Response:
We really don't know what the situation would be here partly because it's so specific and partly because we are UK based and do not know how the Australian and South African systems work. Maybe seek professional legal and financial help on this one.
LawAndParents - 14-Dec-16 @ 11:04 AM
My husband and I are both South African citizens.We want to appoint my brother, an Australian citizen, as the legal guardian of our son should we both pass away. I want to know how difficult it would be for my brother to have my son moved to Australia and whether he will have access to the funds available in the testamentary trust.
Guardianship SA to A - 13-Dec-16 @ 11:09 AM
Poddy - Your Question:
My grandson has lived with since he was 6 months old he hasn't seen his mother since he just turned 1 I have full residence/custody off him. He does have contact with his dad my son but he is in prison at the moment as he has no contact with any member of his mothers family can I change is surname to the same as my sons

Our Response:
You will need to check with/gain consent of anyone who still has parental responsibility before changing his name. If you cannot gain consent, you will need a court order.
LawAndParents - 8-Aug-16 @ 12:12 PM
My grandson has lived with since he was 6 months old he hasn't seen his mother since he just turned 1 i have full residence/custody off him. He does have contact with his dad my son but he is in prison at the moment as he has no contact with any member of his mothers family can i change is surname to the same as my sons
Poddy - 7-Aug-16 @ 9:26 PM
Hi, my grandson is 2 yrs old and has lived with me and his mother since birth. Now she wants me to evict her and says she wont let me see him. We dont really get on but I look after more than his mum. Do I have rights.
j - 29-Jul-16 @ 1:30 PM
Hi my daughter and grandson live with me he is 4 I have looked after him for last 3 years as daughter works and constantly stays out at night she is now talking about moving out with grandson who has learning difficultiesI am scared she still goes out and doesn't go home leaving my grandson with mates who r strangers to him would I be able to apply to be his full time guardian
liz - 3-Mar-16 @ 6:30 PM
Hi. My kids, youngest 16 have had no contact or financial help from there father in over 10 years even before then contact was when he was either drunk or being abusive demanding to see them. Maybetwice a year. Anyway my question is can I have my long term partner be made her legal guardian or even adopt her.
Confused - 2-Mar-16 @ 2:26 PM
My kids were born in South Africa but have british passports through me. We live in the UK. We want to appoint my in laws who live in South Africa as guardians should something happen to both my husbamd and myself. Would they be allowed to come and live in the UK to look after the children. They are SA citizens? Thanks
claire - 12-Jan-16 @ 8:52 PM
Monty - Your Question:
We would like to make application for child we have been caring for last 3 years under residence order. The Child's parents are abroad and they have not visited the child for the last 3 years. Do you think an application for Legal Guardianship will be successful. Also do we need to go through mediation as clearly the child's parents are not opposing. They have no interest whatsoever. We would like to get the guardianship so that we can apply for the child's British passport which is not possible otherwise. please advise!

Our Response:
We don't know enough about your circumstances to say whether an application would be successful or not. The court form to apply for guardianhsip is form C100
LawAndParents - 3-Dec-15 @ 11:31 AM
We would like to make application for child we have been caring for last 3 years under residence order. The Child's parents are abroad and they have not visited the child for the last 3 years. Do you think an application for Legal Guardianship will be successful. Also do we need to go through mediation as clearly the child's parents are not opposing. They have no interest whatsoever. We would like to get the guardianship so that we can apply for the child's British passport which is not possible otherwise. please advise!
Monty - 1-Dec-15 @ 3:28 PM
My daughter is 14 and pregnant can I retain legal guardianship over the baby until she's ok enough and ready
cath - 2-Nov-15 @ 7:01 PM
Hi, me and my wife are considering becoming legal guardians to my niece, who lives in Fiji. My wife is British and I am Fijian.I have spoken to my sister and her ex husband and they haven't any problems with us raising the child.How can we bring the child to the UK and how much would it cost?
Wez - 24-Oct-15 @ 1:52 AM
Nancy - Your Question:
Our daughter and son in law are having serious marriage problems. She is a us citizen, he is brittish. They live in the uk. Our daughter has a temporary visa and hopes to get her permanent visa next year. Their 5 children all have dual citizenships. All but the youngest born in the us. The oldest is 15 and has asked to come live with us, her American grandparents. Her mother would say ok, knowing its better for her. Her father no. How old does she have to be to be able to choose for herself and come legally?

Our Response:
She may be able to choose once she is 16 although the father will retain parental responsibility until she's 18.
LawAndParents - 17-Sep-15 @ 12:12 PM
Our daughter and son in law are having serious marriage problems. She is a us citizen, he is brittish. They live in the uk. Our daughter has a temporary visa and hopes to get her permanent visa next year. Their 5 children all have dual citizenships. All but the youngest born in the us. The oldest is 15 and has asked to come live with us, her American grandparents. Her mother would say ok, knowing its better for her. Her father no. How old does she have to be to be able to choose for herself and come legally?
Nancy - 15-Sep-15 @ 9:35 PM
Caity - Your Question:
Hi,My son lives with me and my partner.He is 4 years old. He has started school and his father now has him 2 nights a week ( while at nursery he had him 3 nights). He wont pay me any more maintainace only £25 a week. He says he wants him 3 nights and I have said no due to him living half an away from us and my son has school every day. Legally can I stop him ? I am worried he will just take him for 3 nights and I wouldn't know what to do. He has PR too. So far I have no sought legal advice as I don't have much money and am scared he will really fight me. Please help

Our Response:
If you feel you should be entitled to more maintenance, you can try mediation follow by the courts/CMS if that does not work. If you have previously agreed for the father to have your son for 3 nights, then you may have to get an alternative agreement drawn upto change it to 2 nights - again you can do this via a mediation service. If your partner does not agree, then you will have to use the court system to resolve it. If school is only half an hour away then should it not be possible to retain the arrangement you had while your son was at nursery?
LawAndParents - 14-Sep-15 @ 11:12 AM
Hi,My son lives with me and my partner.He is 4 years old. He has started school and his father now has him 2 nights a week ( while at nursery he had him 3 nights). He wont pay me any more maintainace only £25 a week. He says he wants him 3 nights and I have said no due to him living half an hour away from us and my son has school every day. Legally can I stop him ? I am worried he will just take him for 3 nights and I wouldn't know what to do. He has PR too. So far I have no sought legal advice as I don't have much money and am scared he will really fight me. Please help
Caity - 13-Sep-15 @ 1:16 PM
@Blue Star Sapphire. You could try applying for a Special Guardianship Order - information is here
LawAndParents - 26-Jun-15 @ 11:18 AM
My son married outside a non-EU as he lived abroad. They now have 2 children, both are Brits. However, one of them suffered a health condition so we admitted him to a hospital here. Now the issue is that his mother is still abroad while her visa is being processed but this will take time. The father brought the child to be treated here but he has to go back to help his wife and other child with the paperworks...etc and the hospital here requires that I have a "legal guardianship" over my grandson while his parents are away. I called my son to come back but we're clueless on what to do now in order to attain such a legal title for myself in order to be able to look after my grandchild while his parents are away. Kindest regards
Blue star sapphire - 22-Jun-15 @ 6:04 AM
@Dario.Most colleges/institutions ask for details of a legal guardian for 17 year olds. Can the child's mother not take on this duty?
LawAndParents - 23-Apr-15 @ 12:45 PM
Question: my daughter and I(both British citizens) live in Spain however my daughter is doing an apprenticeship in London and her mum, who lives in the UK claims that she is required by law to have a legal guardian in the country as she is only 17. Is this true?
Dario - 20-Apr-15 @ 10:52 PM
I have had lagal guardianship of my nephew for the last three years. His mother has been in and out of his life and has never been a reliable. she has been to prison and has continued to get in trouble with the police. She has now told me she is getting a house and wants him back. Ive raised him by myself for the last three years so i will fight to keep him with me. I just woundered what to do next. TAI for any advice given.
kerry - 29-Sep-14 @ 3:47 PM
I am not sure of you are able to help me, but I have some enquiries regarding the possibility of becoming a guardian in the UK for two children that live abroad (Turks and Caicos islands – a British Overseas Territory). The parents of these children aged 16 and 14 have expressed their desire for me to become their temporary guardian so that they can receive an education in the UK. I have known the family for many years and have a very close and supportive relationship with the family (I lived in the Turks and Caicos islands from Jan 2007 until April this year). I wondered if you would be able to contact me regarding some queries I have (what is the legal process, how would I go about enrolling them at school etc). I look forward to hearing from you. Regards,
mattibey - 16-Sep-14 @ 6:16 PM
My grandson is 13 next month. When by law will he be able to decide with whom he wants to live with?
Min - 31-Aug-14 @ 7:30 PM
hi Sir(s) brief story: i was locked up almost a year after being convicted with child neglect. i am not an expert in Law but there were blatantly a lot of missed pieces of information during the trial they decided to convict me. after being released we were supposed to go back to court again to discuss the possibility to be assessed in order to get my children back to me. due to the refusal of legal aid to fund my case in the court, the court decided to put them in adoption plans , within 6 months the court ordered to assess any potential couples willing to come forward to adopt my children. it has been now almost 3 years that i was denied the right to see them since they have been placed in foster cares and now, i received a letter from social services stated that there is a strong candidate couple (foster couple where my children are actually there no) coming forward for a guardianship plans of my children. i have been told to reply to the social services until this Friday. please tell me advantage and disadvantage of my dilemma and what to do? i can't honestly stand against social services in the position that i am now as a cleaner.they know that i can't afford a private lawyer. thanks
tn - 6-Aug-13 @ 1:05 PM
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