Wills, guardianship and special guardianship

blurred fairly lightsA guardian is someone appointed to care for a child after his or her parents have died. 

Guardians nominated by will
A guardian can be nominated by a child's parents (and certain other people with parental responsibility).  The appointment comes into effect if all the child's parents (with parental responsibility) die.  The nominated guardians then acquire parental responsibility automatically and do not need to make a court application to be permitted to care for the child.  However, the guardians do not become legal parents, which means they do not have financial responsibility and the child has no automatic inheritance rights from them.

Guardianship appointments in wills can also be used to safeguard the position of parents without legal status, ensuring that they are left with a right to care for their child.  This can be particularly important in surrogacy cases, and in cases involving same-sex parents or co-parents.

Guardians appointed by the court
The family court can appoint a guardian for a child on an application made after the child's parents have died, typically where no will has been made (although also where the guardians appointed are unsuitable or unable to act).  Anyone can apply, but only after a child has been left without any parents who have parental responsibility.  The court will decide what is in the child's best interests.

Special guardianship

A special guardianship order is a court order which gives parental responsibility to someone, and restricts the parents from being able to exercise their parental responsibility. However, unlike an adoption order, it does not fully or permanently extinguish the parents' legal parenthood.

A special guardianship order is usually intended to provide a secure and long-term legal relationship between the special guardian and the child, whilst still preserving the legal link between the child and his or her birth family. It can be appropriate, for example, where a child is being cared for by grandparents who wish to secure their position but do not wish to become legal parents.

A special guardianship order can be made on the court's own initiative or in response to an application. Various categories of people are entitled to apply (including anyone who has lived with the child for three years); other applicants must first seek the court's permission to apply. If you apply for special guardianship, you must notify your local authority of your intention to apply, and they will be involved in the process by preparing a report for the court.