Close search

The importance of appointing children’s guardians in the Covid era

The negative impact of Covid 19 on families in respect of education, mental health and relationships generally has been well documented in the press. However, as the virus continues to spread at an alarming rate, the consequences can be much more serious than the inevitable lockdown stresses and tensions caused by families living together 24/7.

Last month, in one London Borough alone, four children were taken into care because one or both their parents had died of Covid-19. The shocking tragedy of young children being orphaned due to the global pandemic shows how deadly serious the problem has become. Absent any risk factors, children’s services would often look to place children with members of their extended family, such as grandparents or aunts and uncles. Sadly, that cannot have been an option for these poor children.

In November 2020 Ofsted confirmed that the fostering care capacity did not match demand and the adoption process has been slowed down by the inability of home placements or face to face visits with potential adopters and social workers. There are reports of children being placed outside their home area due to lack of available placements locally, which must add to their feelings of loss and insecurity when they already no doubt in a traumatised state

The Government has issued a range of emergency measures to try to ease the strain and introduce flexibility to the fostering and adoption process. However, there are also measures that families can take to try and ensure the welfare and protection of children in the event that tragedy strikes.

The most effective protection parents can take when considering care for their children in the event of tragedy is to ensure they have an up to date Will which includes the appointment of guardians for their children in the event both their parents die before they are 18.

The appointment of a guardian, if done properly, will give that person Parental Responsibility for the children, which is all the right, duties, powers, responsibilities and authority for and in relation to a child that a parent has. This enables the guardian to make important decisions about the child's life in areas such as consenting to medical treatment and education.

Only the court can appoint a guardian in the absence of a formal appointment of a guardian by parents. So if parents just agree informally with relatives and friends who will look after their children if they die, the appointed person will not have Parental Responsibility and will have to apply through the courts to obtain it.

Parents should also ensure a valid appointment is made for children whose parents have divorced and remarried. Step parents do not automatically obtain Parental Responsibility for their step children merely by marrying or entering into a civil partnership, even though they may have day to day care of the children. The implications of this if the child’s parent dies are therefore serious. Step parents can however acquire Parental Responsibility in a number of ways, guardianship being one of them.

Parents can also make financial provision in their Wills for the maintenance and welfare of the children in the future, including trusts for school and university fees.

There are other important considerations when appointing guardians, such as a change in the guardian’s circumstances after the appointment is made, which may change their ability to act. For international families based in the UK, it is possible to name guardians resident abroad but think about the practicalities – how quickly could they get over to the children and will they take the children abroad to live with them, and be educated, in their country? Written (albeit non-binding) guidance on these points can be left with the Will.

Making a valid Will is therefore an essential step in protecting your children’s welfare and security in the event of the loss of their parents and can therefore give peace of mind, especially in times of a public health crisis such as we are currently experiencing.

For more information about the appointment of guardians please contact either Hetty Gleave in the Fladgate’s family team or Helena Luckhurst in our Private Wealth team, who will be happy to advise.

Featured Insights


Contact us