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4.58However, in some cases there might be conflict between the guardian and the parent.  For example, “the mother may have been divorced from the father, and may have appointed her mother or her new husband as guardian.  On the mother’s death the father’s wish to have the child living with him may be resisted by the grandmother or stepfather.”558

4.59The Commission felt that whether this type of case resulted in litigation depended more on the relationships between the parties, “rather than on whether the law has a rule precluding a guardian from accepting office during the life of the surviving parent.”559

4.60However, the Commission noted that section 5(8) of the English Children Act 1989 provides that an appointment of a guardian by one parent does not take effect until the other parent dies or ceases to have parental responsibility for the child.  If the appointing parent before his death had a residence order in force then the appointment does take effect.  The Scottish Commission were concerned that there would be situations where the parents of a child are separated and yet have no residence order in force.  “The father, for example, may simply have abandoned his family”.560

4.61This is also inconsistent with the policy that no order should be made unless this is necessary in the interests of the child.  Section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986 provides that a court should not make any order relating to parental rights “unless it is satisfied that to do so will be in the interests of the child”.  There is a similar provision in section 1(5) of the Children Act 1989.

4.62A parent who is on good terms with the other parent can provide that an appointment of a guardian is not to take effect until after the other parent’s death.  The Commission recommended a more flexible solution which allows a guardian to accept office even if there is a surviving parent in existence, unless the appointing parent has made specific provision otherwise.561  The legislation also provides that the other parent’s responsibilities and rights subsist.562

Responsibilities and rights of guardian

4.63The Commission noted that under the existing law the parent’s right of guardianship differed from the rights conferred on non-parental guardians.  “The parent’s guardianship did not need to include rights in relation to the child’s person and day to day upbringing, which the parent had anyway as parent”.  The Commission suggested that a non-parental guardian might need to have such rights.563  The Commission agreed with the provision in the Children Act 1989 that a guardian should be given the normal parental responsibilities and rights to enable him or her to fulfil these responsibilities.564  They accepted the view of the English Law

558 Ibid at 3.10.

559 Idem.

560 Ibid  at 3.11.

561 Ibid  at 3.12.

562 Section 7(1)(b).

563 This was in agreement with section 3(5) of the English Children Act 1989.

564 Supra at 3.13.

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