Making sure the children always come first

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Who assumes responsibility for the children in the event of the death of one parent when the parents are separated?

When a parent dies, it is often the case that minor children will continue to be cared for by their surviving parent. But what happens if the parents are separated?

This is a complicated area of family law and in this article, Dawn Gore, a family lawyer who specialises in children matters uses the circumstances of a fictitious family to explain the position.

In our fictitious family, the mother Janet, has sadly died. John is the surviving parent and Jack and Jill are their children. Janet and John were separated.

The first issue that must be considered is whether John has parental responsibility?

Yes: John has parental responsibility

In this scenario even if Janet had made a Will appointing an alternative guardian for Jack and Jill in the event of her death, John would generally assume the care of the children. However, if Janet had a Residence Order in her favour at the time of her death, then the care of Jack and Jill would be assumed by the nominated guardian who would share parental responsibility with John.

No: John does not have parental responsibility

In this case, if Janet had made a Will appointing a guardian in the event of her death, that guardianship would take effect. This may mean, therefore, that Jack and Jill will be cared for by a relative or friend of Janet's rather than by John, even though John may have played a full role in their upbringing.

The guardians then would have parental responsibility for Jack and Jill whereas John, even as the only surviving natural parent, would not and he would not have the legal ability to make any important decisions relating to his children's welfare.

Sadly, it is sometimes the case that the parents may have separated in acrimonious circumstances and whilst both parents share parental responsibility, one of those parents may never have had the opportunity or ability to care for the child. If this had been the case with Janet and John, on Janet's death, therefore, John may then find himself responsible for the care of Jack and Jill without having had any, or very little, prior experience.

In circumstances such as these, it is likely to be Janet's immediate family who initially assumes responsibility for the care of Jack and Jill, perhaps in the belief or knowledge that that was what was intended by Janet. In the event of a dispute between Janet's family and John as to who should care for Jack and Jill, they would be encouraged to seek legal advice and consider mediation with a view to reaching an agreement as to the arrangements for the children or, as a last resort, an application may be made to the Court to determine those arrangements.

If an application to Court was deemed necessary, Janet's family would be seeking a Residence Order which, if granted, would then afford them parental responsibility for Jack and Jill. In determining whether the family should have the benefit of a Residence Order or whether the children should live with their father, John, the Court's paramount consideration will always be the children's welfare.

Even if it was the case that Jack and Jill had not spent much, if any, time in their father's care, unless Janet had a Residence Order in her favour at the time of her death, the Court is likely to take the view that having made provision in the Children Act 1989 that the appointment of the guardian would only take effect on the death of the last surviving parent with parental responsibility, it was the intention of Parliament to avoid conflict between the surviving parent and the guardian appointed by the deceased parent.

Although probably rare in that there are currently no reported cases, it may be possible for members of Janet's family to obtain a Shared Residence Order with John who has parental responsibility for Jack and Jill. This then would enable the maternal family members to share parental responsibility with John so that they could be involved in making decisions with reference to Jack and Jill's upbringing and welfare.

Commenting on this scenario, Dawn Gore explains: "In determining whether Janet's family should share parental responsibility with John for Jack and Jill, the Court's paramount consideration would be the children's welfare. As there are currently no reported cases where such an Order has been made in circumstances such as these, we must assume that the Courts have, so far, either not been invited to consider such an application or have declined to make Shared Residence Orders in favour of members of the extended family where a surviving parent already has parental responsibility for the children. This would be on the basis that it was considered to be in the best interests of the children's welfare for them to be raised by their natural parent. That is not to say, however, that that would be appropriate in every case."