Guardians named in will residing overseas
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I note that the OP says that MIL is "currently residing in Canada", is this a permanent or temporary state of affairs?
Maybe MIL would be willing to return to UK in the tragic event of her grandson losing both his parents?
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I have, sadly, been involved in a similar situation, and the various authorities in both countries were very sympathetic to a grandmother who needed to look after, and take home & obtain parental responsibility, for a bereaved grandchild from abroad.
I have also known the Border Agency act very quickly to allow a foreign grandmother in to care for bereaved children (visa issued within 24 hours) and I don't think it would be nearly as difficult from Canada.
Of course, you need to talk carefully to grandmother, as has been suggested.
Although the courts, on Social Services advice, do make the decision, it is rare for them to not follow the wishes of a sensible, caring family.
Although posters are right to raise the issue of uprooting, I would add:
If young, the child needs to be with someone who can devote time and energy to him, and the family are in the best position to decide that.
As he gets older, and maybe the family feel he would be better with close friends, the will may be changed.
Also, his grandmother can make the decision, in conjunction with Social Services, the courts and the child, that he may choose to reside elsewhere (when he's of an age to be involved). I have known this happen as well.
I have always found Coram Children's Legal Centre very helpful, but I don't know if they offer "what if" advice.
I rather think that if grandmother has right of residence here, and is able to drop everything to come over, at least on a temporary basis, then I wouldn't get too worried about legal pitfalls.0 -
Regardless of that the ultimate decision would be made by the Court. It is for the Court to decide what the best interests of the child are taking all the circumstances into account. They may follow the parent's wishes as set out in their wills but those are not binding on the court. The child's best interests are paramount.
The law(childrens act 1989, section 5 ) is very clear.
A named guardian(does not have to be in the will a written declaration is sufficient) takes over parental responsibility on death of the last person with parental responsibility.
The courts would have to intervene to overrule that just as they would for a mother.
This would require an application to the court by a third party.0 -
Instead of selectively quoting one section of the Act take a look at the rest of it plus the plethora of case law on the subject. In the scenario the OP asked about it is inconceivable that both Social Services and the court would not be involved.getmore4less wrote: »The law(childrens act 1989, section 5 ) is very clear.
A named guardian(does not have to be in the will a written declaration is sufficient) takes over parental responsibility on death of the last person with parental responsibility.
The courts would have to intervene to overrule that just as they would for a mother.
This would require an application to the court by a third party.0 -
I am familiar with practice in this situation, but not the legal niceties.
Social Services make an immediate decision in the interest of the child, usually that they go to a close family member or friend. Thy then investigate, including looking at wills, listening to close family member and then the case goes through legally.
I have only known one instance where Social Services and hence the court did not take notice of parental wishes - there was an extremely good reason.
This scenario is not quite as uncommon as it may appear. The deaths of both parents in a 2 parents family are fairly unusual.
However, there are many one-parent families where the other parent is unsuitable, estranged, can't be found or is serving a long-term prison sentence. In all of these, the death, or serious illness, of the resident parent creates this scenario.
Social Services also try to be flexible. I have known some very sensible solutions, but can't really repeat them on an open forum.0
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