Appointment of guardians – CA 1989 s. 5
Court appointment of guardian when no parent with PR or after death; parents/guardians may appoint in writing; takes effect on death or when no parent with PR.
Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child’s guardian if— the child has no parent with parental responsibility for him; or a parent, guardian or special guardian of the child's was named in a child arrangements order as a person with whom the child was to live and has died while the order was in force ; or paragraph (b) does not apply, and the child’s only or last surviving special guardian dies. The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it. A parent who has parental responsibility for his child may appoint another individual to be the child’s guardian in the event of his death. A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death ; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death . An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or— in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the Wills Act 1837; or in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature. A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned. Where— on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or immediately before the death of any person making such an appointment, a child arrangements order was in force in which the person was named as a person with whom the child was to live or the person was the child’s only (or last surviving) special guardian , the appointment shall take effect on the death of that person. Where, on the death of any person making an appointment under subsection (3) or (4)— the child concerned has a parent with parental responsibility for him; and subsection (7)(b) does not apply, the appointment shall take effect when the child no longer has a parent who has parental responsibility for him. Subsections (1) and (7) do not apply if the child arrangements order referred to in paragraph (b) of those subsections also named a surviving parent of the child as a person with whom the child was to live . Nothing in this section shall be taken to prevent an appointment under subsection (3) or (4) being made by two or more persons acting jointly. Subject to any provision made by rules of court, no court shall exercise the High Court’s inherent jurisdiction to appoint a guardian of the estate of any child. Where rules of court are made under subsection (11) they may prescribe the circumstances in which, and conditions subject to which, an appointment of such a guardian may be made. A guardian of a child may only be appointed in accordance with the provisions of this section.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section sets out how a guardian can be appointed for a child. A court can appoint someone as a guardian if the child has no parent with parental responsibility, or if a parent, guardian or special guardian who was named in a child arrangements order as the person with whom the child lived has died, or if the child's only or last surviving special guardian has died.
A court can also make such an appointment in any family proceedings even if no application was made. Additionally, a parent who has parental responsibility, or an existing guardian or special guardian, can appoint another person to be the child's guardian after their own death.
Such an appointment must be in writing, dated and signed by the appointer (or signed at their direction in the presence of two witnesses). The appointment takes effect on the appointer's death if the child then has no parent with parental responsibility, or if the appointer was named in a child arrangements order as the person with whom the child lived or was the child's only special guardian. Otherwise, it takes effect when the child no longer has a parent with parental responsibility. This section also limits the High Court's inherent power to appoint a guardian of a child's estate.
When it applies
- A mother with parental responsibility dies, having appointed her sister as guardian in her will; the father is absent and has no parental responsibility.
- A child's only surviving parent dies, and a grandparent applies to the court to be appointed guardian.
- A special guardian dies, and the child has no living parent with parental responsibility.
- In divorce proceedings, the court decides to appoint a guardian for a child even though no one applied, because the child has no parent with parental responsibility.
- A father who has parental responsibility appoints his brother as guardian in a written, witnessed document.
What this section does not say
- This section does not cover the appointment of guardians for adults (e.g., under the Mental Capacity Act).
- It does not cover the process of revoking a guardian appointment (that is covered by CA 1989 s. 6).
- It does not cover the duties or powers of a guardian once appointed (other than having parental responsibility).
- It does not cover appointment of a guardian by a local authority or court in care proceedings (other than the specific court appointment here).
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This page reproduces the text of CA 1989 s. 5 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.