4.47The Commission did not find difficulty with the existing law which provided that:
“the parent of a child may appoint any person to be guardian of the child after his death, but any such appointment shall be of no effect unless the appointment is in writing and signed by the parent; and the parent at the time of his death was guardian of the child or would have been such guardian if he had survived until after the birth of the child.”549
4.48Section 7(1) of the Children (Scotland) Act 1995 provides that a parent can appoint a guardian for the child in the event of the parent’s death, provided the appointment is in writing.
Appointment by existing guardian
4.49The Commission supported the inclusion of a provision similar to section 5(4) of the Children Act 1989. Thus, an elderly grandparent, who is sole guardian and who is anxious about the arrangements for the child after her death, could appoint a replacement.550 Section 7(2) provides that:
“A guardian of a child may appoint a person to take his place as guardian in the event of the guardian’s death, but such appointment shall be of no effect unless in writing and signed by the person making it”.
Views of child on appointment of guardian
4.50The Commission received submissions that, where a child was of sufficient age and maturity, his views should be taken into consideration by a guardian proposing to appoint a replacement, or to an appointment of a guardian by a parent. Section 7(6) provides that:551
“Without prejudice to the generality of subsection (1) of section 6 ..., a decision as to the appointment of a guardian under subsection (1)552 or (2)553 above shall be regarded for the purposes of that section (or of that section as applied by subsection (5) above) as a major decision which involves exercising a parental right”.
4.51The Commission suggested that a child who objected to the appointment of a guardian could apply to court for the termination of the appointment and, if necessary, the appointment of someone else.554 However, the Act does not explicitly give the child that right.
549 Section 4 of the Law Reform (Parent and Child) (Scotland) Act 1986 as amended by section 10 and Schedule 1 paragraph 41 of the Age of Legal Capacity (Scotland) Act 1991.
550 Ibid at 3.4.
551 Ibid at 3.5.
552 By a parent.
553 By an existing guardian.
554 Ibid at 3.5.