The recent death of Michael Jackson coupled with the reports that his mother has applied for guardianship of his children inevitably prompts queries from worried clients as to the position should they too die prematurely leaving dependent children. Is it automatic that their divorced spouse will have the children live with them or need they do something to ensure or, in some cases, prevent this? Has the fact that they have made a will appointing someone as guardian sufficient?

In English law, generally only the parents will have parental responsibility for their children and this cannot be usurped by a guardian appointed by will unless both parents have died. However, the fact that a surviving parent has parental responsibility does not mean that the children will automatically live with that person. As with all cases involving children, their best interests are paramount. So and to this end a court has power to make a residence order in favour of another person if that is the outcome which better serves the needs of the children. As a result I have been involved in cases where orders have been made in favour of grandparents or other relatives or friends, remembering always that a child’s wishes and feelings are also taken into account.

Further and importantly even where, as is invariably the case, there is no dispute between surviving relatives as to where the children should live, it is important not to overlook the need to apply for parental responsibility. If you do not have this, you may encounter difficulties consenting to medical treatment for a child or applying for a passport to take them on holiday.

Also and ridiculous as it may sound, even if you are named on the birth certificate of a child as the father, you do not automatically have parental responsibility unless your child was born in or after December 2003. In those circumstances a child may have lived with you throughout their lives but legally you still need powers conferring on you by a court to act on behalf of your child!