Who will care
for your child?
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
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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