No presumption in favour of natural parent

A recent case in the family court has highlighted the issues of presumption in favour of a natural parent being a child’s primary carer.

A couple had a daughter in 2009 but then separated in 2011 and the father lost contact with his daughter between 2012 and 2014. She lived with her mother, but during this time the mother was diagnosed with terminal cancer. Some close friends (a married couple), cared for the girl when the condition worsened and eventually the woman became the primary carer, then her and her husband both became her testamentary guardians.

They applied for a special guardianship order when the mother’s death seemed imminent. However, the biological father had also issued a cross-application for a child arrangements order, and the court decided to grant this and dismiss the other couple’s application.

The couple appealed the decision and the mother passed away shortly before the hearing. The court found that the judge had failed to analyse the child’s best interests and there should not be a presumption in favour of the natural parent being a child’s primary carer. They also stated that similarly, the fact a child lives with a party for some time does not create a presumption that situation should continue either. The facts of each case need to be considered closely and the court should decide by applying the welfare checklist.

For more information about child arrangements or any other family related issues, please contact our family team on 0115 9888 777.

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