Posted on 6th July 2009

Jackson Child Custody Case Highlights Inequalities in Parents Rights

Judith Middleton, Partner at Latimer Hinks Solicitors and Accredited member of Resolution

The questions raised, according to Judith Middleton, a Partner at the North East law firm, are:

  • Is it automatic that their divorced spouse will have the children live with them or do need they to something to ensure or, in some cases, prevent this?
  • Has the fact that they have made a will appointing someone as guardian sufficient?

Judith advises that in English law generally only the parents will have parental responsibility for their children and this cannot be usurped by a guardian appointed by will unless both parents have died.

However, the fact that a surviving parent has parental responsibility does not mean that the children will automatically live with that person.

As with all cases involving children, their best interests are paramount and to this end a court has the power to make a residence order in favour of another person if that better serves the needs of the children.

Judith said: As a result I have been involved in cases where orders have been made in favour of grandparents or other relatives or friends, remembering always that a childs wishes and feelings are also taken into account.

However, parents should note that even where there is no dispute between surviving relatives as to where the children should live, it is important not to overlook the need to apply for parental responsibility.

Judith warns that if a parent does not have this, they may encounter difficulties consenting to medical treatment for a child or applying for a passport to take them on holiday.

She said: And as ridiculous as it may sound, even if you are named on the birth certificate of a child as the father, you do not automatically have parental responsibility unless your child was born in or after December 2003.

In those circumstances a child may have lived with you throughout their lives but legally you still need powers conferring on you by a court to act on behalf of your child.

Judith added: The huge publicity about the custody of Michael Jacksons children has prompted parents to question their own circumstances should either of them die while their offspring are still minors.

Legally it may not be as straight forward as people think and the best course of action is to seek expert advice.