What if a parent dies?

Question:

If two people have a child but don't live together, and the child lives with the mother, the father has regular access. Then the mother dies, where dose the father stand concerning his rights for full custody?

Answer:

I have come across this situation on a number of occasions.

The simple answer is that unless there is a good reason for the child not to be living with their natural parent, the courts
generally favour the child being with the parent that is still alive.

What circumstances would a court consider relevant to
preventing a child living with the surviving parent? The answer is if it could be shown that to do so would not be in the child’s welfare interests. Perhaps some examples would help (but please remember that every case is different and depends on the detail). These are the sort of circumstances where I think a court would be unlikely to sanction a child living with the surviving parents:

  • Where the child has already spent a long time living with someone else (e.g. grandparents) and has an established attachment with them that it would be harmful to disrupt.

  • Where a child’s surviving parent is not capable of providing care for the child (e.g. drink, drugs, criminal activity etc).

  • Where a child does not want to live with the surviving parent but wants to stay with their current carers and is old enough to understand that decision.

  • Where the standard of care the child would receive from the current carers is very clearly and demonstrably better than that which would be provided by the surviving parent.

Do you have
Parental Responsibility? If you do, then your are probably the only adult that does. As such you have a legal right to decide where the child live and could, as a strict matter of law, go and get the child. Only a court order could prevent this. However, I am not suggesting that anyone does this, especially if a parent has just died. If someone else is looking after the child it is much better to explain to them that you would like to spend more time with him or her with a view to the child then moving to live with you. Again, if you have Parental Responsibility (PR), without a court order, another adult cannot legally stop you seeing your child. If you have PR the onus is on whoever is looking after the child to apply to a court for an order preventing someone with PR from doing something in relation to the child.

However, these situations can be very difficult and emotional so it is wise to tread carefully. This is certainly a situation where I would advise speaking (quickly) to a lawyer. What often happens is that a child’s grandparent or other relative takes over care of the child ‘naturally’ and of course there are a lot of emotional issues. They can feel an immense sense of loss (as can the child) when they have cared for the child in a time of crisis and then the living parent turns up and ‘demands’ the child. That child can of course also be even more important to them because they are a connection to the person who has died. They may feel they ‘owe it’ to the deceased parent to bring up that child etc.

If that situation persists i.e. if a child lives with the relative for a long time, it then becomes harder for the natural parent to argue that the child should move to live with them, as the child will establish routines and attachments with the current carers. It may also be that the child feels ‘closer’ to the relative (especially grandparents) if they have been in their day to day lives whilst the parent was alive.

If you do not have
Parental Responsibility then you do not have the right to say where and with whom the child lives. You must apply to the Court for a Parental Responsibility Order and an Order that the child ‘lives with’ you. This should be done as soon as possible for reasons that I have set out above, unless the current carers agree for the child to live with you. Even then, it is sensible to always have PR for your children.

Also do not forget that the child is likely to be very close to whoever is currently caring for him or her. It is worthwhile thinking about what you will ‘offer’ in terms of the child maintaining a relationship with the that person and the deceased parents’ family.

In a previous post
here I have set out some helpful law relating to the importance of children being brought up by their natural parent.

Comments

Grandparents vs Parents

Question:

Apologies to the writer but I have had to edit what was a very long question.

I had a relationship with my ex partner. We had only been together a couple of months when she got pregnant. Soon after the baby was born I realised she had issues with alcohol. Social Services became involved after she was found drunk in charge of our baby. Our baby was placed in care of maternal grandparents. Mum has not accessed support for her alcohol issues and now social services are supporting grandparents to apply for residence of our daughter (who is now 2 and half years old) and also mum’s two older children (8 and 11).

Mum made false allegations against me about domestic violence and drug use (cannabis). She has also said that we have continued to have a relationship with each other (when in reality it ended a year ago). She has made these allegations, I presume to weaken my chances of getting more contact with my daughter (I see her for 3 hours every Thursday and most of the day every Sunday). I have not yet been able to have overnight contact with my daughter.

My daughter has lived with grandparents for approximately 2 years.

I am going to court to argue against grandparents application for residence and I am seeking residence. I have 3 other children that I have contact, including overnight, very regularly.
I intend to represent myself at court. Grandparents have a solicitor.

There is no truth, and no evidence to the allegations of domestic violence or drug use.

I would value your opinion as to which way you might expect the court to go with this. I understand that my daughter has been with grandparents a long time. Does this mean it is very unlikely that I will be successful in my application for residence?

Would it be appropriate/beneficial to take with me letters from my two ex partners (who I have children to) which will state that I have never been violent to them ever, and that I am a good father and constant and consistent parent to my children?

I would have applied for residence earlier but I have been supporting social services' plans for my daughter to return to her mother (but just before the planned return mum started drinking again, and she was warned that this wad her last chance). I believe strongly that I am a good parent and believe my daughter would be well cared for by me.

Unfortunately, if I did get residence then my daughter would need to go to full time nursery as I work full time. Would it be appropriate for me to suggest that grandmother cares for my daughter some of the time so that she would not need to be in full time nursery until she gets older. Or would the court think that if that wad the case then my daughter is just better off living with grandparents. My relationship with grandparents is not very good, due to the allegations about domestic violence and drugs.

Social workers (there have been several) seem to believe her lies, the health visitors, everyone, even though there is absolutely no evidence. I was arrested last year after an allegation about domestic violence. But all charges were dropped. I know there are many fathers (and some mothers) who suffer much more than I do, and have much less contact. Do you have any advice or anything to tell me about my case, and advice on representing myself, I would be thankful.

Answer:

There is a lot in this. Lets start with the main reason why you suspect social services are supporting the grandparents over you. Mum has made allegations of
domestic violence. You deny them. You must make this clear from the very start. In family cases something is not true until the court decides it is true, on the balance of probabilities. I explain more about how the court decides factual issue here. If social services have indeed proceeded on the basis that the allegations are true and then the court decides that they are not, you will have gone a long way to making your case stronger. The court will be able to order disclosure of the material from the police you mention and if necessary ask for you to undertake a drugs test, although I note that you are having contact which I presume is unsupervised - which you can point out suggests that you are not a huge risk to your daughter.

It is true that your daughter has lived with her grandparents for a long time and this will be a powerful factor in her grandparents’ favour. They will undoubtedly be her primary attachment. However, that does not necessarily mean that she could not come and live with you or at least spend much more time with you. Generally speaking the law favours children living with parents if this is possible. Here is some helpful law on the point:

Although the welfare checklist is neutral as regards applications made by parents compared to those made by non-parents, courts use the ‘needs’ factor to give effect to the principle that a child should be brought up, if possible, by a parent as opposed to a non-parent.

In Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139, at 153, Lord Oliver of Aylmerton emphasised:

‘... the single common concept that the natural bond and relationship between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates it.’

In his speech, Lord Templeman said (at 141):

‘It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered. Public authorities cannot improve on nature.’

These statements were later applied by the Court of Appeal in a private law residence case (Re K (A Minor) (Custody)) [1990] 2 FLR 64. The Court of Appeal granted a father’s appeal against a refusal to make a residence order in his favour in respect of his 4 ½ year old son who had been living with his maternal aunt for a year, his mother having died:

‘The speeches in the House of Lords [in Re KD (A Minor) (Access: Principles)] make it plain that the term “parental right” is not there used in any proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained wherever possible with the parents who gave it life.
... [The trial] judge proceeded ... as though the question before him had been: which claimant will provide the better home? The question he ought of course to have been asking was: are there any compelling factors which require me to override the prima facie right of this child to an upbringing by its surviving natural parent?
[His] approach led him to embark upon a careful and detailed assessment of the merits of the two competing households with a view to deciding in which of them R would have a better prospect of achieving a sense of security and stability, qualities, certainly, which he will badly need after his sufferings. That comparative exercise was conscientiously undertaken and involved the most careful weighing of minutiae such as the age differences between the parties, of imponderables such as the father’s future marriage prospects, and even of wholly unknown quantities such as the emotional effect of a change of primary carer, which the judge undertook, in the absence of any medical or psychiatric evidence one way or the other. It was, despite its thoroughness, an exercise misconceived in law.’ (at para 70)

Notwithstanding this, the welfare test governs any decision about the future residence of the child regardless of whether both the contesting parties are the parents of the child or not. In Re G (Children) [2006] UKHL 43, [2006] 2 FLR 629, at [30] Baroness Hale of Richmond emphasised that the statutory position is plain: the welfare of the child is the paramount consideration:

‘As the Law Commission explained, “the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child” or, as Lord MacDermott put it, in [J v C213] the claims and wishes of parents “can be capable of ministering to the total welfare of the child in a special way”.

Lord Scott of Foscote agreed:

‘Thorpe LJ [in the Court of Appeal] failed to give the gestational, biological and psychological relationship between [their mother] and the girls the weight that that relationship deserved. Mothers are special…’ (at 3)

Lord Nicholls of Birkenhead observed:

‘In this case the dispute is not between two biological parents. The present unhappy dispute is between the children’s mother and her former partner ... In this case, as in all cases concerning the upbringing of children, the court seeks to identify the course which is in the best interests of the children. Their welfare is the court’s paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor.’ (at 2)

If Article 8 of the European Convention on Human Rights means anything, it means the right to family life between a parent and a child.

As an additional reminder of the general principle, the Court may consider it appropriate to note that the United Nations Convention on the Rights of the Child at Article 7 states (my emphasis):

‘1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’

Nothing cited above is intended to derogate from the general principle that it is the child’s welfare, pursuant to section 1 of the Children Act 1989, that is the Court’s paramount consideration.


As I hope is made clear from what I have set out above, ultimately it is the child’s welfare that is the Court’s guiding principle but generally that includes the idea that if possible a child should be with a parent. I have said more about the welfare checklist
here. When you write a statement you should make clear why you think it is in your daughter’s best interests to live with you.

The fact that you work and therefore would rely on a nursery placement should not really make much difference to the strength of your case. The courts do not generalise parents for working. It may be worth getting a statement from your employer if s/he can say that you are reliable and have not had any issue with drugs etc. Perhaps they will confirm that they will be flexible regarding child care arrangements etc? However, your daughter would need to maintain a relationship with her grandparents (and siblings) in any event, so your suggestion is a sensible one, within reason. Perhaps a mix of some time in nursery and some time with her grandparents? Also you will need to set out what you think about your daughter having contact with their mother, and in what circumstances.

Do not forget to include a ‘fall back’ position. If your daughter does not come and live with you all the time, when can she spend time with you? People often say ‘as much as possible’ which is understandable but try to be more specific. Do you have
Parental Responsibility? If not, don’t forget to make clear you would like it. This should be almost automatic given the contact you are having.

It is a good idea to get
statements (not letters) from the parents of your other children setting out what they have to say about you as a father.

You will have to explain, in detail, why you have not applied for residence before hand. If the grandparents have not applied for residence yet, consider whether you should make an application first.

The key will be to set out your case as honestly and openly as you can, in writing, from the very start. The first statement you file should be full and contain as much relevant detail as possible (but not ramble). Cases are often won and lost on paper and what is said at the start can shape the whole case. There is more detail about writing statements
here. Also you can download a template for a statement that is sometimes used in Liverpool County Court by clicking here. It is in ‘Word’ format. You might need to adapt it a bit but it will help you with the structure.

There is some more advice on representing yourself on the other website I run
here. In particular take a look at the “Notes for Self Represented Parties” document on that page.

Finally, take a look at my “
Do I Need a Lawyer” page. I note that you are working. If you can afford it, you might want to consider getting some help from a lawyer, even if not for the whole case. That and subsequent pages contain advice on ways to control the cost etc. There is much at stake and this will in all likelihood be your best opportunity for your daughter to live with you.

Hope this is helpful and good luck.





Comments

Is the Government introducing Shared Parenting?

Paul from Shropshire asks:

Is it true that the Government is introducing a proposal for shared/equal Parenting that means children will spend equal time with both parents as of right?

Answer:

No. I have read many articles in the press that seem to imply this or that there is some massive change in the law coming, for example this one from the Daily Mail, proclaiming a legal right for separated children to see parents. I worry that this creates a false impression.

There is a Bill going through Parliament called the Children and Families Bill. It does add something to The Children Act 1989 which I will explain below. However, it does not represent a massive change in the law. The reality is that other measures the government has introduced (cutting legal aid for parents) and what the Bill does not do (beef up the Court’s ability to make parents obey Court orders) means that, in my view, the overall effect will be that fewer separated parents (often fathers) will see their children.

A combination of The Human Rights Act (Article 8 - Right to Family Life) and the case law that has developed in this area has always meant that Courts do their best enable both parents to see their children. Of course, seeing a child is completely different to sharing or equal parenting.

This is what the proposed legislation will add to The Children Act 1989:

“A court is … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare … if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm.”

That is subject to the following exception:

“ … unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.”


There are a number of points to be made about this proposal:

  • It is arguable that it does not change the law at all and is in fact exactly what Family Courts do at the moment;
  • “Involvement” can mean anything e.g. as little as telephone calls and as much as equal time spent with the children;
  • The wording “some evidence” is shoddy drafting, in my opinion. I know what it is getting at, but I think it could be better spelt out;
  • Some people argue that the requirement to look at the Child’s Welfare contains all of this in any event and that this addition undermines the idea that the court should take decisions based solely on what is best for the children concerned (I don’t think it does, but there we go).

So all in all I’m afraid I think it will change very little but is being spun as some great advance. It falls far short of shared parenting and has nothing to do with parents spending equal time with their children.

Have a look at the “Access or Contact” pages to see more detail on how Court’s make decisions about about parents seeing children at the moment.

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Comments