What happens to the child if something happens to the person with a residence order?

[Somerandompersons]

My DM has a residence order for DN. Been in place for nearly 4years. DM has been sole carer since birth.

We are trying to work out what would happen to DN if something should happen to DM meaning that she could no longer care for him. Neither parent could care for him.

Ideally, he would come to live with me but we are unsure if this is possible.

We will be taking legal advice, we just are trying to work out our options.

Would stating DMs wishes in a will be sufficient? We are in Scotland.

The parents would in law be the ones to decide who the child lives with. The proposed new careers would need to apply for their own residence order at the appropriate time.

Note: this is advice based on English law but I can’t imagine it’s any different in Scotland.

I think your DM should work out who is best placed to care for the child should she be unable to. If that person is
,for example you, you would then have to apply for a Residence order in your own right for the child at that time I would imagine.

OP - I’ve just realised that you posted in Legal Matters, so I’ve sent my rather long-winded reply to you by direct message. Feel free to delete :-)
There’s some experience of this in my extended family here in Scotland. Terminology in Scotland differs from that used in England, which can lead to confusion although the end result is the same.

Is your DM a kinship carer, and was DN placed with her by Social Work? If so, DM can ask a social worker from the kinship care team what course of action your family might take in the case of sudden emergency or gradually increasing frailty. Although birth parents continue to have rights, and would be contacted if you go to court, the Residence Order trumps parents’ rights in court. Can you and your mum meet with KC SW to clarify the process?

Alternatively, is the family lawyer available who represented your mum when the RO was granted? My understanding is that, regardless of your mum’s will, there will be a process of SW assessment and police checks, Children’s Hearing, etc, to present to the Sheriff Court. This sounds daunting, but it can all take place while the child is in your care.

Thanks for the comments. The situation is complicated by the fact I live in a separate city so am not able to be there for day to day activities. We usually visit every 3-4 weeks with our DD, the two kids get on great.

My DM still has contact with social work, due to DN being assessed for ADHD, so she is going to discuss with them. We are going to speak to a solicitor but my mum lives in a town with one and getting an appointment is extremely difficult.

My DN was never really placed with DN. my sister was very young when she had him and just went out when he was 2 weeks old with her friends and never really came back, which is why my mum went to court. (this was actually done with my sisters acceptance . She understood the need for this) The hope was that my sister would gradually work her way up to being in a position to take more of a role in his life so that if anything happened to DM, DN would go to stay with my sister. Unfortunately this isn't looking likely which is why we are having to look into alternatives.