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Who will care for your child in the event of your death?

A recent Court of Appeal decision has confirmed that there is no presumption that a child should placed in the care of a biological parent in the event the other biological parent should die.

This area of law is of great importance, as a family lawyer when dealing with parents who are separating I am often asked by my clients, who maybe going through a bitter separation, if they can do anything to determine who their child should be cared for in the event of their death if they don’t think it is in the child’s best interests to be brought up by the other biological parent.

A parent can, and indeed should make a Will, to ensure their child is adequately provided for in the event of their death. A Will can contain a guardianship provision stating who the parent wants to look after the child. A person who is appointed as the child’s guardian will then automatically acquire parental responsibility for the child in the event of the parent’s death, but only if there is no one else alive with parental responsibility. A guardianship provision therefore offers some certainty and security for a child, however as evidenced in this recent case, the jurisdiction of the court cannot be ousted, and therefore if the arrangements for a child cannot be agreed in the event of a parent’s death an application to court can be made to determine the arrangements for child based on what is in the child’s best interests.

The recent case concerned a little girl who was five years old. Her parents were in a relationship from 2007. The father is named on the child’s birth certificate and has shared parental responsibility with the mother throughout the child’s life. The parents separated in March 2011. In September 2011 the mother was diagnosed with terminal breast cancer.

The separation between the parents was acrimonious, a restraining order was made against the father in 2012 and he was later fined for breach of that order. To all intents and purposes the father then lost contact with the child and did not see her again until November 2014.

The father is now in a new relationship and lives with his partner of two years and her two teenage children from an earlier relationship. The father has had some information about the child’s progress as the child had been having contact with her half sister, another daughter of the father who lives with her mother.

As the child’s mother’s condition worsened the mother and the child increasingly relied upon a couple the mother was good friends with for support. In June 2014, as the mother's condition deteriorated, they moved to live with the friends at their home. Following the mother’s death the female friend became the child’s primary carer and the child attended a local school from which there are glowing reports.

The mother felt very bitter towards the father who she felt had deserted her and their child and wished him to have no part in the child’s life. The mother in preparation for her death, named the friends as testamentary guardians of the child in her Will. More than anything the mother wanted the child to remain with the friends, believing her to be safe, secure and settled with them; the mother felt that the child would be best placed to come to terms with the loss and grief that she would suffer after her death in the care of her friends.

In August 2014, at a time when the mother's death appeared to be imminent, the friends issued an application for a special guardianship order. The judge made a without notice interim child arrangements order so as to confer parental responsibility on the friends in case that the mother died before the return date. The father issued a cross-application for the child to come and live with him.

A special guardianship report was carried out and recognised that whilst the child has a strong network around her, it would nevertheless come as a great shock with "devastating reverberations" when her mother died. The report also referred to the fact that the child may need support of a biological parent and of a specialist to grieve and to come to terms with the fact that the mother will no longer be with her. It was also noted that there was a lot of animosity and hostility between the father and the mother’s friends who were seeking care of the child which could result in the real possibility that if the child remains with the friends, any future contact the child may have with her father would not be of the quality or frequency that would allow a real bond to develop. The report therefore concluded that due to the real risk that if a special guardianship order is made in respect of the friends the child would lose contact with her father and special guardianship order was not recommended. The report recommended that there be a child arrangements order made in favour of the father with the child to be placed in his care following the funeral arrangements of the mother.

The Judge ruled that there is “a broad natural parent presumption” in existence under our law and indeed common sense would cause one to recognise that a young child will all other things being equal be best off in the primary care of a parent.

The judge acknowledged that there was a status quo and a track record of the friends having "very capably" met the child’s needs. He acknowledged the advantage of providing continuity and stability for the child in the difficult period following her mother's death and noted her friendships and school as potential support.

So far as the father was concerned, the judge rightly reminded himself that parents come in all shapes and sizes with very different characters. He noted that the father has dimensions to his character that can lead to conflict but said that overall he regarded him as capable parent. The judge regarded his partner as "hugely capable" and of being an important support to the father. The Judge concluded "The argument in favour of the status quo therefore is not strong enough to displace the proposition that the father as a capable parent should assume the child's care upon her mother's death."

The judge in making that finding underlined the importance of the child’s relationship with the friends and that future contact would need to be safeguarded by an order.

The friends appealed the decision.

So, should a biological parent automatically have the upper hand if there is a dispute over where a child should live in the event of the death of their main carer?

The law makes it clear that the welfare of a child is the paramount consideration and there is no question of a parental right which might over ride that consideration, it is acknowledged that the welfare test that the court have to apply when determining the arrangements for a child is well able to encompass any special contribution which biological parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring.

This doesn’t mean that the fact of parentage is irrelevant. The position in English law is that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. This does not however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process. Each case is determined upon an examination of its own merits and of the individuals involved.

So what was the outcome of the friend’s appeal in this case? Well the appeal Judge ruled that the previous Judge wrongly conducted his analysis of the child’s best interests on the basis that there is a presumption in law in favour of a natural parent. On that basis alone the appeal has therefore been allowed. It was acknowledged by the Judge that when dealing with the care of a young child undoubtedly, as a working rule, “one does not disturb the status quo unless there is a good reason to do so”. The Judge translated the term of "status quo" into something more meaningful by relating it directly to the welfare of a child, by simply referring in the broadest sense, to the current living arrangements of a child. A further feature in this case was also the fact that the mother made the friends testamentary Guardians in her Will in the hope that in doing so she would ensure that the child was cared for by them after her death, although it was acknowledged the appointment as Guardians under the Will would not take effect for so long as the father is alive and has parental responsibility.

What can we learn from this case? Well, where there is a dispute between potential carers following the death of a parent with parental responsibility, the court will in the absence of an agreement, make a decision as to that child's future living arrangements which arrangements will often be reflected in a Child Arrangements Order. The making of the decision by the court will be determined on the basis of what is in the child’s best interests and that will be decided by the application of the welfare checklist which is set out on the Children Act 1989. The fact that a dying parent has expressed by the appointment of a testamentary guardian, a strong desire that her child should live with a particular person following death, does not generate a preferential position in favour of the proposed testamentary guardian; rather, the fact of the appointment is another significant matter which will be taken into account and given appropriate weight by a court when determining the best interests of the child. When there is still a biological parent alive wishing to care for the child, which may disrupt the status quo and fly in the fact of the other parent’s dying wish are each features that make such a case sensitive, difficult and distressing, but none of them, individually or together, affect the essential approach of the court which is that the decision with regards to the arrangements for the child will be determined based on the overriding factor that the child’s welfare is paramount.


Re E-R (A Child) EWCA Civ 405

By Gemma Hope