Guardianship of children
Parents as guardians
Care of Children Act 2004, s 17
The parents are usually automatically guardians of the child together. However, in some situations the mother may be the child’s sole (only) guardian.
Parents are often called “natural” guardians. There are other types of guardians such as “testamentary” guardians (who are appointed in a parent’s will) or court-appointed guardians. See below, “Other people as guardians”
When will a mother be a sole guardian?
The mother is the sole (only) guardian of a child if she wasn’t married to or in a civil union with the child’s father at any point during the pregnancy, and she wasn’t living with the father at any point during the pregnancy.
Slightly different rules apply if the child was conceived before July 2005. In this case, the mother is the sole (only) guardian of a child if she wasn’t married to or in a civil union with the child’s father at any point during the pregnancy, and she wasn’t living with the father when the child was born.
What if the father is not a guardian?
Care of Children Act 2004, s 18
If a child’s father is not a guardian because of the above circumstances and wants to become a guardian, here are some options:
- both parents register him as the father on the child’s birth certificate as part of the child’s birth information under the Births, Deaths, Marriages, and Relationships Registration Act 1995, or
Care of Children Act 2004, s 19
- apply to the Family Court to be appointed as a guardian of the child. The court must appoint the father as a guardian unless it would be against the welfare and best interests of the child.
What happens if parents’ split up?
Care of Children Act 2004, s 163
If a couple split up, both parents will stay guardians. This means one parent can’t make important decisions about the child on their own. For example, when parents split up, one parent can’t simply decide to move with the child to a different city and ignore what the other parent wants.
