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  • markcarpey
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05 May 12 #328639 by markcarpey
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i read an article in the fathers for justice handbook recently on shared residence. it stated that as a non resident parent,should my stbx die whilst the children are in her care,she could have appointed a guardian to look after them and they would not automatically come to me even though i am thier father. my stbx''s solicitor said this was untrue and they would come to me but i am not sure who to believe.should i apply for shared residence,even though the current arrangements suit us both,simply to safe guard against this happening?

  • Fiona
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05 May 12 #328641 by Fiona
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A parent with Parental Responsibility may appoint someone else as a guardian for a child in the event of their death, but the appointment of the guardian does not take effect until the death of the surviving parent with PR. However, a parent can appoint a guardian to act jointly with the surviving parent if the deceased parent with parental responsibility had a residence order in his or her favour and in force at the date of his or her death and it was not a joint or shared residence order with the surviving parent.

In practice if a parent dies and there is a dispute about living arrangements the court considers the reality of the situation and makes a decision based on the welfare checklist.

  • rubytuesday
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05 May 12 #328642 by rubytuesday
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For clarity, what the Handbook actually states is this:

"If your child’s other parent has appointed a guardian to look after your child (aunt, grandparents etc.) and she dies whilst your child is in her care, if you are a non-resident parent the child will not automatically come to you and you would have to fight this out in Court; with an SRO your child will come to live with you as you are the surviving resident parent."


What this means is that unless there is a Shared Residency Order (SRO) in place, then effectively the "resident" parent can appoint a guardian, meaning that the non-resident parent could be passed over in favour of the appointed guardian should the RP die while the child is in her care. If the RP has a sole residence order in place prior to appointing the guardian and her death, then the same will apply, and the appointment of the guardian will take place immediately upon the death of the RP (s5 (7) Children Act 1989). If there is a SRO in place, then this will not necessarily apply.

Under s1(5) of the CS 1989 the court shall not make any order in respect of the arrangements for a child unless it considers that doing so would be better for the child than making no order at all, known as the "no order principal".

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06 May 12 #328652 by Fiona
Reply from Fiona
The relevant statute is the Children Act 1989


s5(3) a parent with parental responsibility for a child, or a properly appointed guardian, may appoint another individual to act as guardian for the child on his or her death

s5(8) the appointment of the guardian does not take effect until the death of the surviving parent with parental responsibility

s5(7) )A parent of a child can only appoint a guardian to act jointly with the surviving parent if the deceased parent with parental responsibility had a residence order in his or her favour and in force at the date of his or her death and it was not a joint or shared residence order with the surviving parent …


So unless there is a sole residence order in your wife''s favour regardless of whether or not there is an order for shared residence your wife could appoint a guardian (so could you) but the appointment wouldn''t take effect until you both died.

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06 May 12 #328789 by markcarpey
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thanks for both your replies. my stbx does not have any orders in place and as far as i''m aware does not plan to. it is now 2 yrs since we split because of her adultery but i have not been able to afford to divorce her.her solicitor recently wrote to me asking for my consent to allow her to instigate preceedings which i am planning to agree to.we have a private agreement in respect of maintenance for the children and our current access arrangements are working for us both so it would seem i have no need to apply for shared residence at the moment anyway.

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