A guardian appointed under Section 5 of the Children Act 1989 has parental responsibility for the child or young person. The guardian has the right to consent or withhold consent to free the child for adoption, to agree or withhold agreement to the child's adoption and to appoint a guardian for the child or young person in case of their death. Their duties end when the child reaches 18 years old, or when the child dies.

Who can be a guardian?

A guardian can either be appointed by a court, or by the parent (known as a testamentary guardian). This is possible for any child until they are 18 years old.

The court can appoint a guardian if;

• the child has no parent with parental responsibility for him, or
• a residence order has been made with respect to the child in favour of a parent or guardian of his who has died while the order was in force under section 5 (1).

There may be more than one person appointed as guardian but the court cannot appoint the local authority as guardian. Anyone with an interest in the child can make an application to the court for guardianship. The court must consider the child's welfare and other factors. To do this, the court may ask for a welfare report from a guardian ad litem.

Parents can also appoint a guardian through either a will or a written statement. Because the written statement needs to satisfy the requirements of the law, it is important to seek legal advice on preparing it. One or more guardians may be appointed by the parent.