Children Act 1989

5 Appointment of guardians. E+W

(1) Where an application with respect to a child is made to the court by any individual, the court may by order appoint that individual to be the child’s guardian if—

(a) the child has no parent with parental responsibility for him; or

(b) a residence order has been made with respect to the child in favour of a parent [F1 , guardian or special guardian] of his who has died while the order was in force [F2 ; or

(c) paragraph (b) does not apply, and the child’s only or last surviving special guardian dies.]

(2) The power conferred by subsection (1) may also be exercised in any family proceedings if the court considers that the order should be made even though no application has been made for it.

(3) A parent who has parental responsibility for his child may appoint another individual to be the child’s guardian in the event of his death.

(4) A guardian of a child may appoint another individual to take his place as the child’s guardian in the event of his death [F3 ; and a special guardian of a child may appoint another individual to be the child’s guardian in the event of his death].

(5) An appointment under subsection (3) or (4) shall not have effect unless it is made in writing, is dated and is signed by the person making the appointment or—

(a) in the case of an appointment made by a will which is not signed by the testator, is signed at the direction of the testator in accordance with the requirements of section 9 of the M1 Wills Act 1837; or

(b) in any other case, is signed at the direction of the person making the appointment, in his presence and in the presence of two witnesses who each attest the signature.

(6) A person appointed as a child’s guardian under this section shall have parental responsibility for the child concerned.

(7) Where—

(a) on the death of any person making an appointment under subsection (3) or (4), the child concerned has no parent with parental responsibility for him; or

(b) immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child [F4 or he was the child’s only (or last surviving) special guardian],

the appointment shall take effect on the death of that person.

(8) Where, on the death of any person making an appointment under subsection (3) or (4)—

(a) the child concerned has a parent with parental responsibility for him; and

(b) subsection (7)(b) does not apply,

the appointment shall take effect when the child no longer has a parent who has parental responsibility for him.

(9) Subsections (1) and (7) do not apply if the residence order referred to in paragraph (b) of those subsections was also made in favour of a surviving parent of the child.

(10) Nothing in this section shall be taken to prevent an appointment under subsection (3) or (4) being made by two or more persons acting jointly.

(11) Subject to any provision made by rules of court, no court shall exercise the High Court’s inherent jurisdiction to appoint a guardian of the estate of any child.

(12) Where rules of court are made under subsection (11) they may prescribe the circumstances in which, and conditions subject to which, an appointment of such a guardian may be made.

(13) A guardian of a child may only be appointed in accordance with the provisions of this section.

Textual Amendments

F1 Words in s. 5(1)(b) substituted (30.12.2005) by 2002 c. 38, ss. 115(4)(a)(i), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)

F2 S. 5(1)(c) and preceding word inserted (30.12.2005) by 2002 c. 38, ss. 115(4)(a)(ii), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)

F3 Words in s. 5(4) inserted (30.12.2005) by 2002 c. 38, ss. 115(4)(b), 148 (with Sch. 4 paras. 6-8); S.I. 2005/3213, art. 2(k)

F4 Words in s. 5(7) inserted (30.12.2005) by 2002 c. 38, ss. 115(4)(c), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)

Commencement Information

I1 S. 5 (except s. 5(11)(12)) in force at 14.10.1991 by S.I. 1991/828, art. 3(2); and s. 5(11)(12) in force at 1.2.1992 by S.I. 1991/828, art. 3 (as amended by S.I. 1991/1990, art. 2)

Marginal Citations

M1 1837 c. 26.