It used to be the case that there was a presumption that should one parent die, the children would automatically be cared for by the other natural parent. This can be quite a worry for a parent who is concerned that the children would have to live with their other parent, who may have had no interest in the children for some time or not be the best person to care for them.
However, the Court of Appeal has recently decided that a little girl, now aged 7, whose mother had died of cancer, should live with her mother’s friends rather than her natural father.
The Court proceedings had started while the mother was still
alive and she had made it very clear that she wished her daughter to live with her friends and not the father. The Judge disagreed and ordered that the girl should live with her biological father. However, the mother’s friends appealed.
Following the death of her mother, the little girl had been living with her mother’s friends in Cornwall for about 2 years, but was spending time with her father, who lived in Suffolk. She wanted to continue living with them, and the expert dealing with the case agreed and recommended that she stay with them.
In the Court of Appeal, the Judge had to balance a number of factors, taking into account the Welfare Checklist, which is a checklist all Courts have to work through when deciding matters involving children.
The Judge said that the deciding factors were the girl’s wish to stay with her mother’s friends; that her physical, emotional and educational needs were met by continuing to live with the couple and that there was a risk she would suffer emotional harm if she were to move to live with her father. She would therefore remain living in Cornwall.
The father was also ordered to pay costs due to his behaviour in the proceedings. It is unusual for costs to be awarded in a children case. However, in this case the father had made successive applications and had acted in a way causing the couple taking care of the little girl to incur substantial costs.
What this case highlights is that it is very important to make a Will to appoint guardians to take care of your children in the event of your death. As with all matters involving children, the Court will decide what is in their best interests, but clear instructions in a Will would provide the Court with evidence of your wishes.
I offer a free initial 30 minute (no obligation) consultation to discuss provision for your children in your Will or any other family law matter.