Child’s Residence

Child’s Residence After Parental Death

In the case of Re E-R (Child Arrangements) the Court considered the residence of a six year old child, after his mother had died.

The Mother and Father met in 2007.

The relevant child, T, was born in 2009.

The Mother and Father subsequently separated in 2011. The Mother was diagnosed with breast cancer in the same year.

Unfortunately the parties’ relationship became acrimonious and the Father had a restraining Order against him. The Father breached the restraining Order in March 2012.

The Father subsequently moved to Suffolk in 2012 with his new partner and her two teenage sons. As a result, the Father did not have any contact with T for over two years.

The Mother moved in with close family friends, Mr and Mrs H in June 2014, whom she and T had spent a great deal of time with following her separation from the child’s Father.

In view of the Mother’s illness, she applied for a special guardianship order in relation to T in August 2014.

The Mother also sought to appoint Mr and Mrs H as testamentary guardians of T.

A Child Arrangements Order was subsequently made which set out the living arrangements for T and provided for Mrs H to have parental responsibility.

The Father opposed this application and applied for his own Child Arrangements Order.

In January 2015, the Judge confirmed that following the Mother’s death T should live with her Father.

The Mother subsequently died in April 2015.

Mr and Mrs H appealed the Judge’s decision, which was supported by the Mother prior to her death. This resulted in the Court of Appeal directing a re-Trial. T was joined as a party to the proceedings.

During the re-Trial, T continued to live with Mr and Mrs H, but had contact with her Father.

Throughout the proceedings the Father was very hostile and unreasonable, making a number of allegations towards Mr and Mrs H.

The Court considered the relevant factors and what was in T’s best interests.

A clinical psychologist was also appointed to assist in the proceedings.

The psychologist found that Mr and Mrs H had become T’s psychological parents and T wanted to remain with them. Although the Husband felt that this was “uneducated drivel”.

It was considered that T’s physical, emotional and educational needs were met in the care of Mr and Mrs H and she would benefit from the same routine as she did before her Mother’s death if she remained with them.

The psychologist was concerned that if T were to live with her Father, the change would have a significant impact on her and she was at risk of psychological harm caused by attachment disruption.

In view of this, the Court ruled that T should remain in the care of Mr and Mrs H and her primary home should be with them.

However, the Court confirmed that the Father should play a key role in T’s life as her only remaining biological parent. Therefore, a Child Arrangement Order was made for T to spend time with the Father.

This case shows that there should not be a presumption of care by the natural parents and instead should consider all the facts of each unique case.

If you would like to make a new will or discuss nominating a guardian to care for your children in the event of your death, please contact our offices on 01323 727321 to arrange an appointment and we will be happy to discuss this with you.

Please note that the family department offer a free initial 30 minute interview to provide general advice and guidance in relation to your matter.

Eastbourne, Hailsham, Polegate, Meads

Guy Brown
Guy Brown
Carolyn Richards
Carolyn Richards
Greg Saunders
Greg Saunders
Tina Ripley
Tina Ripley