Legal Guardianship: Who Will Care for Your Child?

Part of: Special Guardianship Orders

Legal guardianship means holding the legal authority to care for a child when a parent cannot. It decides who raises the child, and who signs for school, health care and travel. In England and Wales, though, no single order carries that name. Instead, four separate routes lead there, and the right one depends on your family. Our special guardianship specialists assist and advise at every step. This page explains the law of England and Wales.

Reviewed by: Hannah Overton, Complex Children Specialist & Client Support, Kabir Family Law

Is legal guardianship right for your family?

Most families reach this question at one of a few familiar moments. You may recognise yours below.

• You are writing a will, and you want to name the person who would raise your children.
• A grandparent or an aunt already cares for a child, while school and health staff keep asking who decides.
• A parent has died, and nobody else holds parental responsibility for the child.
• A child has moved in with you for the long term, although adoption feels far too final.
• A parent is seriously ill, so the family wants the arrangement written down before a crisis.
• Social workers are involved, and a relative wants to offer a permanent home instead.

Two other roles share the word, so it helps to rule them out. Decisions for an adult who lacks mental capacity go through the Court of Protection. That court appoints deputies rather than guardians, and this page does not cover it. Similarly, a children’s guardian in court cases is an independent social worker from Cafcass, or Cafcass Cymru in Wales. Our page on the Cafcass children’s guardian explains that role.

What are the four routes to legal guardianship in England and Wales?

Each route gives a different level of authority, and each one suits a different moment. Legal guardianship UK guidance often mixes in Scottish rules, which work differently, so check the country first. Then use this list to work out how to become a legal guardian in your situation.

• A guardian named in your will. You appoint someone to step in if you die, often called a testamentary guardian. GOV.UK explains how wills work, while section 5 sets the formalities. Our guide to who gets custody if a parent dies explains what happens next.
• A guardian appointed by the court. Where a child has no parent with parental responsibility, the family court may appoint one instead. It can also step in when a parent or guardian named in a lives-with order dies while that order is in force.
• A special guardianship order. This suits a relative or carer raising a child long term. The special guardian can make most decisions alone, yet the parents keep their legal status. Our special guardianship orders page covers it in detail.
• A child arrangements order. A “lives with” order hands parental responsibility to a carer while it lasts, though the parent keeps theirs too (section 12).

Adoption sits outside all four, because it ends the birth parents’ legal status permanently. Guardianship never goes that far. If a short-term answer would do, our guide to temporary care by grandparents sets out the gentler options.

What can you decide under legal guardianship, and for how long?

A guardian or a special guardian holds parental responsibility, which section 3 defines as the rights and duties a parent has. In practice, that covers the big decisions: where the child lives, which school they attend, and consent to medical treatment. However, the law still sets some limits.

• Some decisions still need agreement. A special guardian cannot change the child’s surname, or take them out of the UK for three months or more, without written consent from everyone with parental responsibility or the court’s permission (section 14C).
• It ends at 18. An appointment or a special guardianship order stops when the child turns 18, unless it ends earlier (section 91).
• It can be cancelled or turned down. A parent can cancel an appointment in a signed, dated document. Likewise, a guardian can decline the role in writing, soon after learning it has started (section 6).
• Support may be available. Every council must offer special guardianship support services, which can include financial support. You can also ask the council to assess your needs (section 14F).

How do our legal guardianship specialists assist and advise?

First we listen, and then we explain which of the four routes actually fits your family. We talk you through the evidence a judge looks for, so nothing lands as a surprise later. We explain what the local authority assessment involves, and how long each stage usually takes. Above all, our legal guardianship specialists assist and advise in plain English, so you can make the decision yourself.

Where parental responsibility is the real gap, we say so. For a step-parent, for example, a parental responsibility agreement or order can be the simpler answer.

How does the guardianship court process work, step by step?

1. Choose the route. A will appointment needs no court application, whereas the other three routes do. In existing family proceedings, the court can also make a special guardianship order without a separate application.
2. Give notice, where the law asks for it. For special guardianship, write to the council looking after the child, or otherwise to your own council. You must do this at least three months before you apply.
3. File the application. For special guardianship, GOV.UK lists form C1, supplement C13A and the mediation form FM1. It currently gives the fee as £270, and fees can change, so check the EX50 fees list before you apply. The guardianship court process then starts once the family court issues your forms.
4. The council reports. For special guardianship the local authority must investigate and file a report, which the judge reads before deciding.
5. The hearing. Finally the judge applies the welfare checklist in section 1 and makes the order, or refuses it.

What can go wrong with legal guardianship, and how can you avoid it?

Five mistakes cause avoidable trouble for families. Luckily, each one is easy to avoid once you know it.

• Naming a godparent and stopping there. A godparent holds no legal standing at all, unless you also appoint them formally.
• An appointment nobody signed or dated. Section 5 wants writing, a date and a signature, so an unsigned note in a drawer does not count.
• Forgetting what a divorce does. If you appointed your husband, wife or civil partner, a later divorce or dissolution cancels that appointment, unless you said otherwise.
• Applying too early. You cannot apply for special guardianship until at least three months after you give the council written notice.
• Assuming a guardian replaces the parent. Adoption, not guardianship, is what ends a parent’s status. So parents usually keep parental responsibility alongside a special guardian, or alongside a carer named in a lives-with order.

Grandparents meet one more hurdle. Unless the child has lived with them for at least a year, or another exception applies, they usually need the court’s permission to apply. Our page on grandparents rights explains when that permission is needed.

How to become a legal guardian in the UK: are you ready for the next step?

Tick through these points before you act. Each one is a place where families often get stuck.

• You know which of the four routes you are looking at.
• The person you want to name has said yes, and you have a second choice in mind.
• You know everyone who holds parental responsibility for the child today.
• Any appointment you have made is in writing, dated and signed.
• If special guardianship is the route, you know the date you gave the council written notice.
• You have thought about whether a past divorce or dissolution affects an appointment you already made.

The calls a checklist cannot make for you

A list shows what to gather, but it cannot weigh up your family. It cannot tell you whether the other parent’s position changes the route, whether you need the court’s permission first, or how a judge might view the child’s welfare. Those are judgement calls. Book a free initial consultation, where one of our specialists gives you initial advice on the route that fits your family.

What does the free initial consultation cover?

A free initial consultation is a conversation with a specialist, who gives you initial advice tailored to your circumstances. It does not include drafting or reviewing documents. Bring the child’s date of birth, the names of everyone with parental responsibility, and a short note of what has happened so far. Afterwards you should have a clearer picture of which route fits, and what the next step involves.

Frequently asked questions about legal guardianship

What is the difference between a legal guardian and a guardian?

In everyday speech the two words mean the same thing. In law, a guardian is someone appointed under section 5 of the Children Act 1989, by a parent, another guardian or the court. That person then holds parental responsibility for the child. A carer described loosely as a guardian, such as a godparent or a family friend, holds nothing until an appointment or an order exists.

Do you have to pay to become a legal guardian?

Naming a guardian in your will costs nothing extra at court. A special guardianship application does carry a court fee, which GOV.UK currently lists as £270. Some applicants can get help with court fees if they receive certain benefits or have a low income. Beyond the court fee, the main costs are making a will and any advice you choose to take.

How do grandparents get legal guardianship?

Often through a special guardianship order, because it suits long-term kinship care. The grandparent must give the council written notice at least three months before applying. Unless the child has lived with them for at least a year, or another exception applies, the grandparent also needs the court’s permission to apply. The council investigates, files its report, and the judge decides on welfare grounds.

Is a grandparent automatically a child’s legal guardian?

No. Grandparents, older siblings and step-parents gain no automatic legal authority, however close they are to the child. They need a parent’s written appointment or a court order. A step-parent can also gain parental responsibility through an agreement or an order. Until then, a carer can only do what is reasonable to keep the child safe and well.

What is the difference between a godparent and a legal guardian?

A godparent is a religious or family role, and it carries no legal authority whatsoever. A legal guardian holds parental responsibility, so they can consent to medical treatment and choose a school. Many parents appoint their child’s godparent as guardian in a will, although the two roles remain entirely separate until they do.

Can I appoint a guardian if the other parent is still alive?

Yes, you can make the appointment now. However, it normally takes effect only when no parent with parental responsibility survives. So if you die first, the other parent usually keeps that responsibility, and your guardian waits. The main exception is a court order that said the child lived with you, and not also with the other parent.

Worried about who would care for your child? Speak to a specialist this week

Putting this in writing now can spare your family a court application later, at a far harder time. A short conversation tells you which legal guardianship route fits, and what it involves. Book a free initial consultation, where one of our specialists gives you initial advice tailored to your circumstances, or call 0330 094 5880. You can also read more about special guardianship orders, or about grandparents rights.

General information about the law in England and Wales, not advice on your circumstances.

Expert Tip

We are commonly asked whether naming a godparent at a christening is enough. It is not. Only a written appointment that is dated and signed, such as one in your will, makes someone a guardian. So ask the person first, and think about naming a second choice in case they cannot take it on. Then look at the wording again after any separation, because a divorce can cancel an appointment of your former spouse.

Iblal Iqbal, Partner & Family Law Strategist