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Court allows appeal against order girl should live with her father

The Court of Appeal has allowed an appeal against an order that a girl should move to live with her father following the death of her mother.

Re E-R concerned a now five year old girl referred to as ‘T’. Her unmarried parents began a relationship in 2007 while living in Cornwall, and their daughter arrived in 2009. The father was named on T’s birth certificate, so he held parental responsibility for her, unlike other unmarried fathers. The parents eventually separated in 2009, but just months later, the mother was diagnosed with terminal breast cancer. The couple made a brief and unsuccessful attempt a reconciliation following the diagnosis.

Their final split was “acrimonious”. The mother took out a restraining order and the father was found guilty of breaching this and fined. Finally the father left Cornwall and moved to Suffolk in November 2012. At that point, he lost contact with his daughter, not seeing her again for two years.

The father set up home in Suffolk with a new partner and her two teenage daughters from a previous relationship.

Meanwhile, as the mother’s health began to deteriorate, she increasingly relied on the support of a married couple with whom she was friends. The mother and T initially stayed with them at weekends until eventually, in June last year, they moved in with the couple at their home in Cornwall. The wife has now been T’s principal caregiver for ten months and the little girl is attending a local school and doing well.

Sitting in the Court of Appeal, Lady Justice King said:

“It is hard to imagine how it must have been for this mother to have to face the knowledge that her death was inevitable and that she must leave her young child to be brought up by someone else.”

She was “bitter” towards the father, believing he had abandoned her and T, and she did not want to him to be involved in the child’s life after she had passed away.

Nevertheless, in January of this year, the Family Court in Truro made a child arrangements order specifying that T should to live with her father on her mother’s death, while continuing to see the married couple on a regular basis. The latter had applied to become special guardians to the girl, a form of foster care which provides a secure placement without, unlike adoption, severing the child’s legal links to their birth family.

When the Judge ruled against them, the couple launched an appeal. By this point, the mother had already lived longer than her original diagnosis but earlier this month she finally died. She had fully supported the couple’s appeal, Lady Justice King noted.

“More than anything the mother wanted T to remain with the appellants, believing her to be safe, secure and settled with them; with them the mother felt that T would be best placed to come to terms with the loss and grief that she would suffer after her death.”

The Court of Appeal ruled in the couple’s favour. Referring to the2006 case Re G, in which a lesbian couple had disputed custody of a child, His Lordship emphasised that no presumption in law in favour of a natural parent in such cases:

“…the welfare of the child was the paramount consideration and there [is] no question of a parental right which might over ride that consideration.”

The original Judge had not had a sufficient understanding of applicable law, and had also been left to contend with “somewhat one dimensional and superficial reports” regarding the family’s situation.

The case had been a complex one in which even the counsel involved had not been fully aware of relevant law, the Judge declared. The father, who had appeared in person, had offered a skeleton argument but this had not addressed the key legal point and it had only served “to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives.”

The case would be sent back to the lower courts for a ruling on T’s future contact with her father, the Judge declared.

Read the judgement here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Andrew says:

    Does anybody else feel that if one parent dies there has to be some thundering good reason why the widow/er should not bring up the children – not some reason whey s/he should?

    • Luke says:

      Yes, of course, in this case the court has declared the father to be a second class parent – at best – it sets a terrible precedent.

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