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Michael Jackson names his Mother as his children’s guardian in his Will – but what is the law regarding guardianship and parental responsibility in the UK?

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Following the untimely death of Michael Jackson it emerged that he had, in his Will, nominated his mother as guardian for his children. In the event that his mother had predeceased him Diana Ross was nominated in her place.

In England and Wales the appointment of Guardians and the rights they have are governed by Section 5 of the Children Act 1989.  A parent with Parental Responsibility may appoint a Guardian by Will or by a document which they date and sign and which provides that the appointment only takes effect on their death.

A child’s mother acquires Parental Responsibility on the birth of their child which can only be removed in specific circumstances for example if the child is adopted. The husband of the mother at the time of the child’s birth automatically acquires Parental Responsibility as does a father named on a birth certificate after 1st December 2003. This applies even in situations where the child was born as a result of Artificial Insemination by a Donor (AID).

The appointment of a Guardian under a Will only takes effect if:-

(i) The Appointer has a sole residence order in their favour at the time of their death; or
(ii) No parent with parental responsibility survived the Appointer.

Even if these conditions are not fulfilled the Appointee will have parental responsibility by virtue of the nomination under the Will and will be entitled to apply to the Court to be appointed as the Guardian. 

Where there was a sole Residence Order in favour of the Appointer at the time of their death and there is a surviving parent who either does nor does not have parental responsibility that person can seek to have the appointment of the Guardian revoked.

Thus had Michael Jackson and his children been resident in England at the time of his death then unless there was a sole Residence Order in his favour at the time of his death his mother would have to have made an application to the Court to be appointed Guardian of his children.  In the absence of such an application the children would have to be returned to their mothers to care for them provided that they as surviving parents still had parental responsibility.


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