No Presumption About What is Best For Children

You might think that the courts will always seek to see that a child is brought up by one of its parents, assuming he or she is willing and able to fulfil that role, but this is not so where such an arrangement is not considered to be in the child’s best interests, as a recent case demonstrates.



The child concerned lived with her mother, whose relationship with the father had ended acrimoniously just two months after the child was born. Sadly, a short time later the mother was diagnosed with breast cancer and she and her daughter came to rely increasingly on friends to care for them.



In anticipation of her death, the mother appointed her friends as her daughter’s ‘testamentary guardians’ and one of them sought a special guardianship order over the girl so that they could continue to bring her up after the woman’s death.



In preparing the reports necessary for such applications to proceed, the social workers involved became concerned that granting the order would cause the father to lose contact with his daughter.



In the family court, the judge concluded that the obvious benefit to the child of the stable and caring home she had become used to was not sufficient to displace the presumption that the father, being willing and able to look after the little girl, should have custody over her.



On appeal to the Court of Appeal, the Court ruled that the case for the special guardianship order should be reheard, commenting that there was no presumption in favour of the natural parent, nor was there a presumption in favour of the family with whom the child had been living for a considerable period. What matters is the welfare of the child in the long term. A more detailed analysis of the child’s needs and the abilities of the two parties to meet them was required.