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3.35As regards this exception, the English Law Commission held the view that if a parent has a residence order in his favour, he should be able (and indeed encouraged) to provide for the child’s future upbringing in the event of his death by appointing a guardian.305  The Act therefore provides that in such circumstances the appointment by that parent will have immediate effect even though there is a surviving parent.306  The guardian will have to share parental responsibility with the latter.  Any dispute as to the child’s upbringing such as his residence will have to be resolved by the court.

3.36Although the policy of the Act may seem right where the child was living with both parents in a united household, different considerations apply where the parents were divorced or separated and the deceased parent making the appointment had a residence order in his favour but the surviving parent did not.  Bainham has the following comments to make:

“The thinking seems to be that the deceased parent should be able, through guardianship, to preserve the ‘advantage’ of the residence order after his death.  It is questionable how far this can be squared with the central principle of continuing parental responsibility.

Apart from the residence issue, the non-residential parent is as much a parent as was the deceased residential parent.  To make him share parental responsibility with a guardian may seem inappropriate where he has continued, in fact, to be actively connected with the child.  It would arguably have been more consistent with the general aims of the legislation to have placed the onus on the guardian to seek immediate appointment where it could be demonstrated that this was in the child’s best interests.

Another difficulty is that the rule appears to create uncertainty about who is entitled to take over the physical care of a child.  An initial dispute over where the child is to live would, therefore, appear to require a residence order to resolve it.  This could have been avoided if the survivor held sole parental responsibility unless and until challenged by the guardian”. 307

3.37The Scottish Law Commission also commented that the exception makes no provision for the position where the spouses were separated or divorced but where there was no residence order.308  For example, although the father may have abandoned his family, and no residence order was obtained by the mother, he nevertheless has sole parental responsibility for the child and the onus will be on the appointee to challenge this position.  The opinion of the Scottish Commission was that in such cases, it might be desirable for the appointment of guardian to take effect immediately on the death of the appointing person even though there is a surviving

305 Ibid, paragraph 2.28.

306 Section 5(7).

307 Bainham, Children - The Modern Law (1993) 191-2.

308 Scottish Law Commission, Parental Responsibilities and Rights, Guardianship and the Administration of Children’s Property, Discussion Paper No 88 (1990), paragraph 3.11.

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