If a special guardian dies

[Meri09]

Hi, I am special guardian to my niece, jointly with my ex husband. I have recently been diagnosed with cancer and am looking for some advice on what would happen to her if I died. My niece is now 15.
My ex husband and I separated around 3 years ago, and my niece lives with me. My ex and I both have new partners and are remarrying. I am due to marry in August this year.
My niece does not get on with my ex’s new partner, to the point where his partner has said she does not want her in the house for visits. My ex has also moved to the other end of the country, far away from all our family and friends.
My niece has told me she would not want to live with my ex if I died. She would want to stay with my partner, who would want the same.
In this situation, would I need to remove my ex from the guardianship to ensure my niece’s wishes were taken into account? Would she be able to remain with an unrelated person if there is a surviving guardian?
My ex says he will always be there for my niece, and would go along with her wishes. I would prefer not to remove his guardianship unless absolutely necessary. Birth parents are not in the picture.

[Suzie, FRG Adviser]

Dear Meri09

Thank you for your post and welcome to the discussion board. I am an adviser at Family Rights Group and will be responding to you today. I am sorry to hear you are unwell.

This is a private law matter and unfortunately we are not funded to provide advice in private law matters. Please see below for some ideas and suggestion about your possible next steps. We would suggest you contact Child Law Advice to discuss your options.

You and your ex-husband have a special guardianship order (SGO) for your niece aged 15. Both you and your ex-husband are in other relationships. You will be getting married this August. Congratulations.

You are seeking advice on what might happen to your niece should you die. Will she be required to live with your ex-husband and his partner? Your ex-husband has said that he will always be there for your niece, but she does not get on with his partner and does not want to live with them. Your soon to be husband has said that he will care for your niece and she can live with him. Your niece has said she would be happy with this arrangement.

You could make an application to court to vary the order. I have listed below some brief information regarding this.

The following parties are eligible to apply to discharge or vary an SGO:

• The special guardian(s).
• The child’s parent(s) or anyone with parental responsibility.
• The child, if they are of sufficient age and understanding to make an application.
• A local authority involved in the child’s care.

When reviewing an application to discharge or vary an SGO, the court prioritises the welfare of the child. This principle is enshrined in the Children Act 1989, which includes factors such as:

• The child’s wishes and feelings, considering their age and maturity.
• The child’s physical, emotional, and educational needs.
• The potential impact of any changes to their living arrangements.
• The capability of all parties (special guardians, birth parents, etc.) to meet the child’s needs.

PROCESS FOR DISCHARGING OR VARYING AN SGO

• 1. Filing an Application
• The process begins with filing an application to the family court. The application must
clearly state the reasons for seeking to discharge or vary the SGO and provide
supporting evidence.
• 2. Notice to Interested Parties
• All relevant parties, including the special guardian, birth parents, and any involved
local authorities, must be notified of the application. This ensures transparency and
gives all parties an opportunity to present their views.
• 3. Court Hearing
• The court will schedule a hearing to review the application. During the hearing, the judge will consider evidence from all parties, including social workers, legal representatives, and the child (if appropriate).
• 4. Decision
• Based on the evidence, the court will decide whether to discharge, vary, or uphold the SGO. If the court deems it in the child’s best interests to make changes, the necessary modifications will be made.

Should you make the application to court to vary the order you may be able to appoint your partner as testamentary guardian. Child Law Advice will be able to advise you on this. They also have helpful 'how to' guides that you can download for a minimal fee.

I hope you find this information helpful.

Best wishes, Suzie