About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 1 May 2015

It is much easier to become a father than to be one

Guess what? Welfare is paramount

E-R (A Child) [2015] EWCA Civ 405

I accept Miss Renton's submission that the judge 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. On this basis alone the appeal must be allowed.

In support of her submission that an application of the welfare principle without an elevated presumption in favour of the father would have led the court to conclude that T should live with the Appellants with extensive contact to the father,

In her grounds of appeal Miss Renton argued that the facts 'militated strongly in favour of the status quo', referring the court to a number of authorities predating Re G and Re B. In particular she relies on Re G (a minor - custody) [1992] 2 FCR 279 and a passage in which Lord Justice Balcombe said:

I would agree that this is not a matter of presumption in the legal sense but, nevertheless, when dealing with the custody of small children undoubtedly, as a working rule, one does not disturb the status quo unless there is a good reason to do so.

In my judgment this observation should be read against the backdrop of the views expressed by Baroness Hale in relation to natural parents in Re G and Lord Hope in Re B. If one translates the term of art "status quo" into something more meaningful by relating it directly to the welfare of a child, it simply refers in the broadest sense, to the current living arrangements of a child. For T, the status quo is that place where she is living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother. The fact that a child of five is in such an environment and has been so for some time, will inevitably be a significant feature of the case and a matter of great importance when assessing the likely effect on her of a change in her circumstances.

In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does (as Balcombe LJ observed), the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any such factor is determinative of a particular case will depend on the unique facts of that case.

A further unusual feature in this case, and one which may trap the unwary into regarding it as a matter of elevated importance, is the fact that pursuant to s5(3) Children Act 1989 (CA 1989), the mother made SJH and her husband testamentary Guardians in the hope that in doing so she would ensure that T was cared for by them after her death.
By s5(6) CA 1989 a person appointed as a child's guardian has parental responsibility. However where as here, the child has a surviving parent with parental responsibility and there is no child arrangements order directing that T is to live with the named guardian, (here SJH and her husband), the appointment of SJH and her husband as T's guardians does not take effect for so long as the father is alive and has parental responsibility ( s5(7) & (8) CA 1989). It follows therefore that SJH derives her parental responsibility in respect of T from the order made by the judge in August 2014, and not by virtue of her having been named by the mother as testamentary guardian.

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 s8 Children Act: Child Arrangements Order. The making of the decision by the court will be governed by the welfare principle informed by the application of the welfare checklist. The fact that a dying parent has expressed by the appointment of a testamentary guardian, her strong desire that her child should live with a particular person following her 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.

In the present case,the 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 that the mother's dying wish 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. As Lord Hope said in Re B:

"In common with all other factors bearing on what is in the best interest of the child, it must be examined for its potential to fulfil that aim."