The death of a parent is an unfathomably painful experience for a child. Amid the grief and sorrow, practical considerations around the child's future will need addressing.

This article aims to shed light on the legal implications of parents dying and guide parents through the process of planning for their child's future should the unthinkable occur.

We'll cover understanding child arrangements, financial matters and ensuring the physical and emotional needs of the child are met.

Understanding parental responsibility and child custody (child arrangements)

In UK family law, phrases like "parental responsibility" and "child custody" (now commonly referred to as "child arrangements") carry significant importance. Parental responsibility is a legal term that encapsulates the duties, powers, rights, and responsibilities a parent has for their child and the child's property. This involves making crucial decisions about the child's education, health care, living arrangements and religious upbringing.

Child arrangements determine who has the physical and legal care of a child after the parents separate or one parent dies.

In the UK, there exists a legal presumption that a child's welfare is best served by staying with a biological parent, unless there is evidence to suggest otherwise.

When a parent passes away, the issue of child arrangements becomes critical. If the deceased parent was the custodial parent, the other parent usually assumes full custody. However, this may not be the case where surviving parents do not have parental responsibility or if there are concerns about the child's safety or wellbeing. In such instances, alternative arrangements may need to be made.

For unmarried couples, the mother automatically has parental responsibility in most cases. The father only has this if he's listed on the child's birth certificate (for births registered from December 1, 2003), has a parental responsibility agreement with the mother, or has a parental responsibility order from a court.

Understanding these concepts of parental responsibility and child arrangements is vital when considering what happens to children if a parent dies. Remember, every family's circumstances are unique. The law aims to act in the best interests of bereaved children. Consulting with an experienced family solicitor can provide valuable insight and guidance through these complex legal matters.

The role of the surviving parent

The remaining parent often steps in to fill the void and provide stability to the child concerned. As the surviving biological parent, they are usually the only person who can obtain child custody without needing to go to court.

This is based on the legal presumption that it's in the best interest of the child to live with their last surviving parent. However, it's important to note that this parent must have parental responsibility. If they don't, they may need to apply for it. Not all parents will have parental responsibility and be able to appoint a guardian for a particular child.

In cases where the surviving parent has been absent or uninvolved in the child's life, questions may arise about their ability to provide a stable home environment. In such instances, other family members or close friends could potentially step in as a suitable guardian.

Involvement of other family members and friends

In many cases, these individuals have been present in the child's life from the beginning. They may already have established relationships and routines with the child, making them ideal candidates for providing additional care and stability during such a traumatic time.

Grandparents, in particular, often play a significant role in a child's upbringing, and their presence can provide a sense of continuity and security. The same can be said for extended family members and family friends who have been actively involved in the child's life.

However, it's important to remember that while these individuals can provide invaluable emotional support and practical help, the legal right to make decisions about the child's upbringing typically remains with the surviving parent. If there are concerns about the child's welfare, these should be addressed through the appropriate legal channels.

Legal procedures and considerations

If both parents died without a guardian being appointed, then the children may be taken into care until the court appoints a guardian. In these cases, the court considers the welfare of the child above all else.

The process to obtain custody can vary depending on several factors, including the parents' marital status, the presence of a will, and whether guardians have been appointed.

If both parents are named on the birth certificate and one parent dies, the other parent typically assumes full custody. This applies irrespective of whether the parents were married, cohabiting, or separated.

However, if the other parent has been absent or lacks parental responsibility, the situation may be more complex.

In some cases, the deceased parent may have specified in their will who they wish to care for their child should they die. These chosen guardians are usually close family members or friends who have a strong relationship with the child. However, the appointment of a guardian does not automatically supersede the rights of the surviving parent. The court will always prioritise the child's best interests when making arrangements.

In extreme circumstances, such as when the surviving parent is incapable of providing proper care due to mental illness, addiction, or a history of abuse, the court may establish child arrangements with the designated guardian instead of the biological parent.

Furthermore, if the custodial parent dies and there are no guardians appointed or the other parent is not suitable to take custody, the court can intervene. It will consider various factors such as the child's age, emotional ties, and the stability of potential homes before making a decision.

The child’s welfare and best interests

In the wake of a parent's death, the child's welfare becomes paramount. The best interests of the child are at the heart of any decisions made about their care. This includes determining where the child lives and who will be responsible for their day-to-day care.

If the parents were not married or in a civil partnership at the time of the death, established paternity is crucial. The father's name on the birth certificate or a paternity test can confirm this.

Once paternity is confirmed, the father can assume full responsibility for the child's care.

The child's best interests include physical needs, such as medical treatment, and emotional needs, like stability and continuity of care. A welfare checklist is often used to assess these needs, ensuring that all aspects of the child's wellbeing are considered.

Understanding these points can help guide decisions during an emotionally charged time, always keeping the child's welfare at the forefront.

How to appoint a guardian

There is another aspect to consider when you are a parent, and that is if you have children under the age of 18 (minor children) you should consider making a Will and include a guardianship clause in your Will.

This will provide you with peace of mind that people you know, and trust, will take care of your children should either, or both of you pass away and not leave the appointment of a guardian up to the Court.

A guardian is a person appointed to look after the interests of the child who has all the legal responsibilities of a parent known as a parental responsibility. A guardian may be appointed by the Court during family proceedings or privately by an individual who has parental responsibility for the child.

The appointment can be made by Will (or another document provided it is in writing and signed by the parties) making the appointment. If there are no guardians appointed and a person dies leaving minor children, the court must appoint a guardian. Suppose the person making the Will (known as a testator) dies, and there is no other person surviving with parental responsibility. In that case, the guardianship appointment will take effect immediately on the testator's death.

If a testator dies and a Child Arrangements Order is in force (Court order dealing with children living /contact arrangements) in which the testator was named as a person with whom the child was to live, or the testator was the child's only special guardian then the appointment will take effect immediately on their death even if the surviving parent has parental responsibility. In this case, the guardian will share parental responsibility with the surviving parent.

The appointment would not take effect immediately if the surviving parent with parental responsibility was also named in the Child Arrangements Order as a person with whom the child is to live. If there is a dispute about who the child is to live with, the surviving parent or the guardian can apply for a Child Arrangements Order. A parent may also apply to have the guardianship terminated.

The child's welfare is the Court's primary concern when dealing with these issues. Suppose the testator dies and the child has a surviving parent with parental responsibility, and there was no Child Arrangements Order in their favour. In that case, the guardian's appointment will not take effect until the surviving parent with parental responsibility has also died.

FAQs

When a parent dies, it can raise many questions and concerns. Here are some frequently asked questions on this topic:

Are children entitled to anything when a parent dies?

Yes, children can be entitled to certain things when a parent dies. This can include financial support from the deceased parent's estate, as well as personal belongings. If the deceased parent had a will, it would outline the distribution of their assets. In cases where there is no will, the rules of intestacy apply, and the estate is divided according to UK law.

What happens to a child when a parent dies?

The immediate impact on a child when a parent dies can be emotional and psychological. The long-term effects depend on various factors such as their age, the surviving parent's ability to provide care, and the support system around them. Legally, if both parents are named on the birth certificate, the surviving parent typically assumes full custody.

Does the child go to the father if the mother dies?

In most cases, if the mother dies, custody of the child goes to the biological father, provided his paternity is established, and he is deemed fit to care for the child. However, the court always prioritises the child's welfare, and other arrangements can be made if necessary.

What rights does a legal guardian have?

It is vital to ensure that the person you wish to appoint as a guardian is happy to take on the role, as they do have the right to refuse.  If appointed, a legal guardian has some of the same rights and responsibilities as a parent, including making decisions about the child's upbringing, education, and medical care. They also have the right to access any funds left in trust for the child's benefit.