Following on from our last post on The royal baby: when parents separate, the focus on Archie has now turned to his upcoming christening and the popular question in the media: ‘Who will be his godparents?’
Early front runners have included the Clooneys, Serena Williams, Princess Eugenie and Canadian celebrity couple Jessica and Ben Mulroney. While the press enjoy speculating as to who may fulfil the role for the new prince, many couples continue to appoint godparents in the mistaken belief that the godparents will ‘step into their shoes’ or ‘get the children’ in the event of the parent’s or parents’ untimely death.
In Scotland, the role of godparent does not bring with it any legal responsibilities or rights in relation to the godchild. Rather, the law reverts in the first instance to the deceased parent’s legal writings. It is, therefore, imperative that if parents have chosen godparents with a view to them assuming legal rights in relation to a child, they make express provision for this by appointing the godparents as guardians for the child in their will.
The role of a guardian
A guardian can only be appointed by a parent with parental responsibilities and rights. Parental responsibilities and rights are held automatically following birth by a mother but not necessarily automatically by a father. If a child was born before 4 May 2006 and the father was named as the child's father on the birth certificate, but is not, or has never been, married to the mother of the child, the father does not automatically acquire parental responsibilities and rights. This position changed on 4 May 2006 to confer unmarried fathers who are named on the birth certificate automatic parental responsibilities and rights. After 4 May 2006, unmarried fathers not named on the birth certificate must acquire parental responsibilities and rights by agreement with the child’s mother or by order of court.
A guardian has no place to act in matters relating to the child until the death of a parent. If willing to accept the position, the guardian would assume the parental responsibilities and rights in respect of the deceased parent or parents.
The responsibilities of the guardian are to safeguard and promote the health, development and welfare of the child, provide direction and guidance, maintain contact with the child if living apart and to act as the child’s legal representative. The corresponding parental rights are the right to have the child reside with the person (to exercise this right our client had to go to court to obtain a residence order), to control, direct or guide the child’s upbringing, to maintain contact if living apart and to act as the child’s legal representative. There are also additional provisions regarding the removal of a child from the United Kingdom.
Guardians and separated parents
In the event of one parent dying, the guardian would have an opportunity to assume responsibility for the child, even if the other parent is still alive. This may be all the more prevalent in cases where parents have separated. If upon the death of one parent, the named guardian does not think it is in the child’s best interests to reside with the surviving parent, the guardian can step in to take preventative legal action. The deceased parent may have made provision for a guardian for exactly that reason. We have seen examples of this where the surviving parent works abroad; has limited contact or involvement with the child; the child has resided with a step-parent in family with the deceased parent for many years; or where there are concerns in relation to the surviving parent’s lifestyle.
In such circumstances, a guardian could apply to the court for orders relating to the child, for example an order to have the child live with them permanently – a residence order. Should this be contested by the surviving birth parent, the court would be asked to determine which of the childcare arrangements proposed would best promote the welfare of the child. This is the court’s paramount consideration. While being some of the more emotive cases in court, the arguments before the sheriff or judge must remain focused on the best interests of the child.
As relationships change, it is important to consider the appointment of any guardians to reflect current circumstances. Not only this, but as children get older they will develop their own strong bonds with family members and friends. For these reasons, an appointed guardian at birth may no longer be the most appropriate or relevant guardian by the time the child reaches school. The role of and status of Archie’s godparents remains to be seen but we are sure he will be in safe hands!
Image by: Northern Ireland Office