Many parents worry about what will happen to their children in the event of death. To ensure that your wishes are clearly expressed as to who should look after your children it is important to put in place a Will which can include provision relating to guardianship and care of your children.
A Will can make sure that your children are provided for financially and can incorporate a Trust if children are very young.
A child’s parent who has parental rights and responsibilities for that child may also appoint a person to be guardian of the child in the event of the parent’s death in terms of section 7 of the Children (Scotland) Act 1995. This can be a very simple document.
It is rare for there to be a dispute about where children should live after the death of a parent or indeed both parents, but when it does occur it will have to be resolved by the competing parties litigating the matter in court. This of course is expensive and distressing for all concerned.
A joint consultation with a private client solicitor and family law solicitor can often be a very helpful way forward for parents concerned about these issues. Not only will this guarantee a joined up approach but can also give parents practical guidance and reassurance about a sensitive topic.
A slightly different scenario but with a similar focus for the courts involves children being removed from family members. Every so often there is an outburst of press indignation at supposedly heavy handed court rulings in this regard. However, often these stories deserve further scrutiny.
Earlier this year there was publicity regarding a case in England which involved two young children being removed from the care of their paternal grandparents. The children had been living with the grandparents as their natural parents were incapable of looking after them. Many people are of course quite rightly concerned at the state taking children away from family members to place them in a foster home and the story became a focus for “grandparents’ rights”.
However, what the case actually illustrated was that the main consideration in the determination of all family law cases is the best interests and welfare of the children involved. Kinship is important but does not outweigh this very important underlying principal.
In the English case, the Court felt that unfortunately the grandparents simply could not, in practical terms, care for the children who exhibited challenging behaviour which had deteriorated whilst with them. It certainly does not mean there is any age discrimination against grandparents. The age and health of carers will always be considered by a court, and the preference will remain towards placing children with family members, but only if that serves the best interests of the individual child. Even rights exercised by parents must fulfil this condition.
Please contact a member of our Family Law team or Private client team if you wish to discuss these issues.
