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I want my sister to have the children if anything happens to me

23 May 2019

Divorce can be a very traumatic event for many people.  If there have been mental health issues, or other issues such as alcoholism, prior to the divorce then these difficulties may well be exacerbated for the spouse who feels that it is their partner who is unjustifiably bringing the marriage to an end.  In this note, it is assumed that it is the wife who is seeking a divorce and that it is the husband who has mental health issues.

Where the mental health issues, on the part of the husband, are significant, or long term, the wife may have very real and justifiable concerns as to what would happen to the children in the event of her premature death.  Unless the Social Services were to intervene then the presumption would be that the father will become the principal carer of the children as the surviving parent, and sole holder of parental responsibility (“PR”), following the mother’s death.  As the sole holder of PR the husband would have all the rights, duties and powers in relation to the children and would be able to make significant decisions on their behalf such as where they should live, which school they attend etc.

What can the mother, in this example, do in order to ensure that a third party such as a family member, or trusted friend, becomes the principal carer of the children in the event of her death.

The starting point is that the family court recognises that a child’s relationship with their parents is likely to be one of their most enduring, and significant, relationships and on this basis the court will be very reluctant to take any steps that will limit or sever the tie between a parent and a child.

Notwithstanding there are some steps that can be taken by the mother to ensure that a third party, such as a sister who may have similar aged children, plays a significant role in her children’s lives in the event of her death.

As a first step the mother can appoint her sister to be the children’s guardian in her Will.  Whilst this may help the appointment will only take effect, following which the sister will obtain PR, when there are no other holders of PR.  As the husband will have PR, the appointment will not take effect during his lifetime.

The mother could, potentially, make an application to the court for a child arrangements order (“CAO”) specifying that the children live with her. If granted, the CAO will result in the appointment of the sister as guardian taking  effect on her death. However, the sister’s PR will not trump the PR of the husband and, therefore, both the husband and aunt will share PR for the children.  In the event of a dispute between the husband and the aunt the court would have the final say on any matter concerning the welfare of the children.

The court may be reluctant to make a CAO in favour of the mother simply  as an “insurance policy”, for her benefit, in the event of her premature death.  The judge will no doubt consider the possibility that the husband may make significant improvements in his life such that he may be a perfectly appropriate carer of the children, in due course, and may be reluctant to make any order that may impede his ability to fulfil this role.

In some cases  these issues may be being considered by the mother following the devastating diagnosis of a  terminal illness.  If the mother’s death is imminent then this will  draw into sharp focus the issue of who is best placed to look after the children following her death. If the husband, for instance, fails or is unable to co-operate with the court proceedings then in these circumstances the court may be prepared to make a CAO in favour of the mother in order that the appointment of the sister as the guardian of the children may take effect.  Equally, a father may consent to a CAO if he accepts that he is unable, for whatever reason, to look after the children.

In the event that the mother  does not take any of the steps above then it is always open to the sister to make an application to the court on, or shortly before, her sibling’s death for a CAO directing that the children live with her.  The sister would, in the first instance, have to apply for the permission of the court to make the application but this is likely to be granted in the circumstances above, following which the court would make a decision as to whether a CAO should be made. If granted, the children will live with the sister, who will acquire PR which she will share with the husband.

Finally, it is possible for the sister to make an application for what is known as a special guardianship order (“SGO”.)  Such an order, if granted, would provide her with an enhanced form of PR  which will trump the PR of the father.  The obtaining of such an order is  possible but would require the sister to undergo a formal assessment by the Social Services and, ultimately, the decision would, of course, be made by the court by reference to the children’s best interests.

If you have any questions relating to the above, please feel free to contact a member of our family law team.