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No "broad natural parent presumption" confirms Court of Appeal

Testamentary guardians succeed in appeal against child arrangements order

In Re E-R (A Child) [2015] EWCA Civ 405 the court was hearing an appeal from a child arrangements order. The judge's order provided for a little girl, T, now 5 years old, to move to live with TR (her father) and JB (his partner) and, thereafter, to have extensive contact with the appellants with whom T and SH (her mother) were then living. The judge had dismissed the appellant's application for a special guardianship order in respect of T. The 'unusual and tragic feature of the case', in the words of Lady Justice King, was that the variation of T's current living arrangements provided for by the order were to take effect only upon the anticipated death of T's mother.

The parents had separated in March 2011. In September 2011 when T was 20 months old, the mother then aged 44, was diagnosed with terminal breast cancer; an attempt on the part of the couple to reconcile in the light of the mother's diagnosis was a short lived.

The separation was acrimonious, a restraining order was made against the father in January 2012 and in March 2012 he was fined for breach of that order. The relationship finally came to an end in November 2012 and not long after that the father left Cornwall to take up residence in Suffolk. To all intents and purposes the father then lost contact with T and did not see her again until November 2014.

As the mother's condition worsened, she and T increasingly relied upon the appellants for support and eventually they moved to live with the appellants at their home in Cornwall. The mother in preparation for her death, named the appellants as testamentary guardians of T. They applied for a special guardianship order. The judge refused their application and made provision for T to spend increasing amounts of time in the care of the father and his partner and ordered that, upon the mother's death, primary care should shift to them. The mother died a week before the Court of Appeal hearing.

The principal issue in the appeal turned on whether the judge had erred in law, having conducted his welfare analysis on the basis that there was "a broad natural parent presumption in existence under our law". The appellants appealed only the child arrangements order and did not appeal the judge's refusal to make a special guardianship order.

Lady Justice King, applying Re G [2006] UKHL 43 and Re B (a child) [2009] UKSC 5, agreed 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:

"[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 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."

The appeal was allowed and the matter remitted for case management directions including consideration as to future interim contact with the father and as to whether T should be separately represented.

The judgment is here.