The Court of Appeal recently heard an appeal concerning the placement of a 5 year old child known as ‘T’ and considered the merits of placing the child with their Father or a family friend nominated as the child’s testimentary guardian. This took palce in the case of Re E-R (A Child)  EWCA Civ 405.
The parents of T had separated in March 2011 and in the September the mother was diagnosed with terminal breast cancer. The parents had tried to reconcile in light of the mother’s diagnosis, but this did not continue and the relationship came to an end in November 2012. There was an acrimonious separation which involved the mother obtaining a restraining order against the father, which he breached and was fined for. Shortly after the separation the father moved from Cornwall, where the mother and child also resided, and moved to Suffolk. The father lost contact with T and it was two years before T saw her father again.
Mother’s illness started to deteriorate and so she moved, with T, into her friend’s (known as ‘SJH’) home where both mother and T were supported. Nearing the death of the mother, the mother made a will appointing SJH as a testamentary guardian for T. SJH made an application to the family court for a Special Guardianship Order in respect of T. This would give her parental responsibility in respect of T. The father contested this application and he himself applied for a Child Arrangements Order where he sought for T to reside with him and his partner.
The Judge refused the application for a Special Guardianship Order but made a Child Arrangements order in favour of the father for T to spend increasing time with her father and his partner. The Judge further ordered that upon the mother’s death, T should move into the care of her father and for the father and his partner to become primary carers for T. SJH appealed the Judge’s decision in respect of the Child Arrangements Order on the basis that the Judge had erred in law in the way he had conducted the welfare analysis of T and had taken a broad natural parent presumption approach which he stated existed under our law. The appeal came before Lady Justice King who, on applying the principles from Re G  UKHL 43 and Re B (a child)  UKSC 5, accepted that the Judge had erred in law in that the Judge had wrongly conducted his analysis of T’s best interests on the basis that there is a presumption in law in favour of a natural parent.
King LJ said in her judgment.
“[T]he fact that there is a natural father wishing to care for his child, that the status quo may appear at first blush to point to T remaining where she is and the mother’s dying wish for was for T to stay with SJH, are each features of this case. Those features make the case sensitive, difficult and distressing, but none of them, individually or together, affect the essential approach of the court which is, and is always, that T’s welfare is paramount.”
Sadly, the mother passed away before the decision of the Court of Appeal. The Court of Appeal allowed SJH’s appeal and the case will be remitted for another hearing in the family court where the Judge will consider future interim contact with the father and whether T should be separately represented.
If you are someone who is seeking to make an application for a Special Guardianship Order, whether in private law proceedings or in public children law proceedings, then please contact us on 020 7976 2233 where one of our specialist solicitors can offer advice and assistance.
If you are a parent seeking contact, residence or parental responsibility in relation to your child, then please contact us on 020 7976 2233 where one of our specialist solicitors can offer some advice and assistance. For more information on Child Arrangements Orders please see our information page here.