Guardianship of Minors Act 1971
| Year | 1971 |
Guardianship of MinorsAct 1971
1971 CHAPTER 3
An Act to consolidate certain enactments relating to the guardianship and custody of minors.
[17th February 1971]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
General principles
1 Principle on which questions relating to custody, upbringing etc. of minors are to be decided.
1. Where in any proceedings before any court (whether or not a court as defined in section 15 of this Act)—
is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.
2 Equal right of mother to apply to court.
2. The mother of a minor shall have the like powers to apply to the court in respect of any matter affecting the minor as are possessed by the father.
Appointment, removal and powers of guardians
3 Rights of surviving parent as to guardianship.
(1) On the death of the father of a minor, the mother, if surviving, shall, subject to the provisions of this Act, be guardian of the minor either alone or jointly with any guardian appointed by the father; and—
(a ) where no guardian has been appointed by the father; or
(b ) in the event of the death or refusal to act of the guardian or guardians appointed by the father,
the court may, if it thinks fit, appoint a guardian to act jointly with the mother.
(2) On the death of the mother of a minor, the father, if surviving, shall, subject to the provisions of this Act, be guardian of the minor either alone or jointly with any guardian appointed by the mother; and—
(a ) where no guardian has been appointed by the mother; or
(b ) in the event of the death or refusal to act of the guardian or guardians appointed by the mother,
the court may, if it thinks fit, appoint a guardian to act jointly with the father.
4 Power of father and mother to appoint testamentary guardians.
(1) The father of a minor may by deed or will appoint any person to be guardian of the minor after his death.
(2) The mother of a minor may by deed or will appoint any person to be guardian of the minor after her death.
(3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the minor so long as the mother or father remains alive unless the mother or father objects to his so acting.
(4) If the mother or father so objects, or if the guardian so appointed considers that the mother or father is unfit to have the custody of the minor, the guardian may apply to the court, and the court may either—
(a ) refuse to make any order (in which case the mother or father shall remain sole guardian); or
(b ) make an order that the guardian so appointed—
(i) shall act jointly with the mother or father; or
(ii) shall be the sole guardian of the minor.
(5) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly.
(6) If under section 3 of this Act a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but, if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the guardian appointed by the surviving parent.
5 Power of court to appoint guardian for minor having no parent etc.
(1) Where a minor has no parent, no guardian of the person, and no other person having parental rights with respect to him, the court, on the application of any person, may, if it thinks fit, appoint the applicant to be the guardian of the minor.
(2) A court may entertain an application under this section to appoint a guardian of a minor notwithstanding that, by virtue of a resolution under section 2 of the Children Act 1948 , a local authority have parental rights with respect to him; but where on such an application the court appoints a guardian the resolution shall cease to have effect.
6 Power of High Court to remove or replace guardian.
6. The High Court may, in its discretion, on being satisfied that it is for the welfare of the minor, remove from his office any testamentary guardian or any guardian appointed or acting by virtue of this Act, and may also, if it deems it to be for the welfare of the minor, appoint another guardian in place of the guardian so removed.
7 Disputes between joint guardians.
7. Where two or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the court for its direction, and the court may make such order regarding the matters in difference as it may think proper.
8 Continuation of certain powers of guardians.
8. Every guardian under this Act shall have all such powers over the estate and person or over the estate (as the case may be) of a minor as any guardian appointed by will or otherwise has under the Tenures Abolition Act 1660or otherwise.
Orders for custody and maintenance
9 Orders for custody and maintenance on application of mother or father.
(1) The court may, on the application of the mother or father of a minor (who may apply without next friend), make such order regarding—
(a ) the custody of the minor; and
(b ) the right of access to the minor of his mother or father,
as the court thinks fit having regard to the welfare of the minor and to the conduct and wishes of the mother and father.
(2) Where the court makes an order under subsection (1) of this section giving the custody of the minor to the mother, the court may make a further order requiring the father to pay to the mother such weekly or other periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the father.
(3) An order may be made under subsection (1) or (2) of this section notwithstanding that the parents of the minor are then residing together, but—
(a ) no such order shall be enforceable, and no liability thereunder shall accrue, while they are residing together; and
(b ) any such order shall cease to have effect if for a period of three months after it is made they continue to reside together.
(4) An order under subsection (1) or (2) of this section may be varied or discharged by a subsequent order made on the application of either parent or (in the case of an order under subsection (1)) after the death of either parent on the application of any guardian under this Act.
10 Orders for custody and maintenance where person is guardian to exclusion of surviving parent.
(1) Where the court makes an order under section 4(4) of this Act that a person shall be the sole guardian of a minor to the exclusion of his mother or father, the court may—
(a ) make such order regarding—
(i) the custody of the minor; and
(ii) the right of access to the minor of his mother or father,
as the court thinks fit having regard to the welfare of the minor; and
(b ) make a further order requiring the mother or father to pay to the guardian such weekly or other periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the mother or father.
(2) The powers conferred by subsection (1) of this section may be exercised at any time and include power to vary or discharge any order previously made under those powers.
11 Orders for custody and maintenance where joint guardians disagree.
11. The powers of the court under section 7 of this Act shall, where one of the joint guardians is the mother or father of the minor, include power—
(i) the custody of the minor; and
(ii) the right of access to the minor of his mother or father,
as the court thinks fit having regard to the welfare of the minor;
12 Orders...
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