With the best will in the world...

...you still may not get your wish about who looks after your children in the event of your death.
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Indy Lifestyle Online
"DIANA'S WILL Reveals Rebuff for Charles", exclaimed one headline last week, as the publication of the late Princess of Wales's last will and testament showed that she did not want her husband to have sole say in their sons' upbringing.

It was an extraordinarily frank admission that the late princess did not want her children stifled by the Royal Family. When she made the will in 1993 - when the war of the Waleses was still raging - the princess added a clause to ensure that her side of the family, in the form of her mother, Frances Shand Kydd, should have a say in the upbringing, education and welfare of her children. Ironically, by the time Diana died, the relationship with her mother had cooled somewhat and she was on better terms with her husband.

But as more and more marriages break up, women are thinking harder about what should happen in the event of their early death, as Diana did. Take Jane, who split acrimoniously from her husband three years ago. If she died, she would want her parents to look after her daughters. "I just don't want him bringing them up. We have completely different ideas about upbringing. He hasn't been a constant influence on them," she says. "He encourages them to fight back. He swears, and laughs when they swear back. The other week, he chased me down the street and tried to attack me, in front of them. I don't want them to see that."

But, surprisingly, parents like Jane can only express this as a wish; it is only in very rare circumstances that a parent can stop the other parent having a say in the upbringing of their children. "If you are married or divorced, both parents have parental responsibility," says Jane Leigh, secretary of the Law Society Family Law Committee. "You can't extinguish that parental responsibility unless the child is adopted. If the parents are unmarried, the mother automatically has parental responsibility, but there are a number of ways the father can get it, and once you have it, you keep it for ever."

For parents who have fled an abusive partner, or who fundamentally disagree with their former partner's ideas on child-raising, the idea that their untimely death could mean their child goes to live with such a person may seem anathema. But that is how the law stands in Britain. While the parent may want to appoint a guardian, there are only special circumstances when the guardian could take precedence over a surviving parent. Jane Leigh says that if the parent with care has a residence order made by the court, the situation can change: "If the parent with the residence order dies, the guardian appointed by the parent takes precedence over the other parent."

Peter's partner, Miriam, died four years ago, leaving two children. He looked after his two step-children with help from other members of her family. "Nothing prepares you for the chaos of a mother dying," he says. "Nothing can prepare the children for that. It's just mind-blowing. It's very important in all this to remember the children. The Children Act means that their wishes are paramount. So if William and Harry said they didn't want to see Mrs Shand Kydd, then a court would uphold that.

"In bereavement, there is such a tumult of feelings that it can be almost impossible to achieve what the mother wanted, despite the best of intentions. For example, I think that Miriam would have wanted the children to go to private school, but they have ended up going to the local grammar school."

In most cases, people muddle along and there are compromises, with relations trying to do the best for the bereaved children. But for those who have genuine worries, the Consumers' Association advises that the best thing is to make a will. Yet 70 per cent of us still fail to do so.

"I've been talking to my solicitor about what would happen to the children if something happened to me," says Jane. "I get on very well with my parents, but my solicitor says that in the majority of cases, the other parent has the right to look after the children. I hope nothing happens to me, because I don't know what I can do."

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