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For a guardian clause to be effective you must have parental responsibility

Why is having  Parental Responsibility important?

You must have parental responsibility to be able to appoint a guardian within your Will.

‘Parental responsibility’ impacts upon the guardian appointment clause contained in a Will.  If you do not have ‘parental responsibility’ at the time of your death then any Guardian appointment clause in your Will will fail.

The Law Relating to Parental Responsibility

The phrase ‘Parental Responsibility’ (known hereafter as PR) was adopted by the Children Act 1989.  PR 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.’

These rights include:

Generally parents can act independently of each other when exercising PR.  The law does require consent of the other parent in certain circumstances – this is so with adoption (unless their consent is dispensed with.)

Sharing Responsibility for Child

PR cannot be surrendered, or transferred.  A person with PR can arrange for the PR to be met by one or more persons acting on their behalf (and that includes someone else with parental responsibility.) However, the onus remains with the person who has PR to make the proper arrangements for their children.

How can you acquire PR

A father without PR can obtain it in one of the following ways:

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Acquiring PR by Applying for a Residency Order

The application is governed by the principle that the welfare of the child is the Court’s paramount consideration.  A Residency Order  is an order

‘settling the arrangements to be made as to the person with whom the child is to live.

An unmarried father automatically gains PR when a Residency order is issued, but only for the duration of the order.  The PR is limited; it does not include the right to give or refuse consent for adoption, or to appoint a guardian. It can also be revoked by the court on application by anyone with PR  (But this is rare)

Once a Residency Order has been issued there are restrictions on changing the child’s surname, and on taking the child out of the UK.

Wills and Guardian Appointment

Fathers without PR can include an Appointment of Guardians clause in their Will. If the father does not have PR (or only limited PR as in a Residency Order) at the time of his death the clause will be ineffective and ‘fail’.

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What is Parental Responsibility? And why is it so relevant when making a Will?

‘Parental responsibility’ :

We explain more.

PR and The Married Father.

A married father (i.e. a father who is married to the mother at the time of the child’s birth) automatically obtains parental responsibility for his child.  

A married father also has a duty to maintain their children.

PR and the Unmarried Father.

With effect from 1st December 2003 if the unmarried father’s name appears on the child’s birth certificate he has automatic PR. Otherwise an unmarried father does not automatically have parental responsibility, but can acquire it.   

An unmarried father does have to maintain his children.  

PR and a Guardian;   and

PR and a person who Adopts

A Guardian, and an adult who adopts a child, has PR.

Do you have parental  responsibility?