E-R (A Child), Re

The welfare of a child is the paramount consideration in a private-law dispute about living arrangements. Natural parenthood creates no legal presumption or preferential starting point. Parenthood is an important factor only insofar as it may advance the child’s welfare.

A settled home, a testamentary guardian’s appointment and existing relationships are significant factors, but none is automatically decisive. Where a parent’s death creates potentially lifelong consequences, the court requires detailed investigation and may need separate representation for the child.

This was an appeal by the child’s current carers against a child arrangements order made by His Honour Judge Vincent at Truro County Court. The order provided for T, then aged five, to move to live with her father and his partner after the anticipated death of T’s terminally ill mother, with extensive contact to the current carers. The judge had dismissed the carers’ application for a special guardianship order, but that decision was not appealed.

The mother died shortly before the appeal. The central issue was whether the judge had erred by approaching the welfare analysis on the basis of a broad natural parent presumption, and whether the evidence and investigation were adequate for the decision.

The appeal was allowed and the matter was remitted to the Family Division Liaison Judge for case-management directions, including consideration of interim contact and separate representation for T. The Court of Appeal did not determine the final placement.

1. Welfare and parenthood. The judge had erred in law by treating a broad natural parent presumption as part of the welfare analysis. Under the Children Act 1989, welfare is paramount. As explained in Re G [2006] UKHL 43 and Re B [2009] UKSC 5, parenthood creates no parental right, presumption or preferential starting position. It remains an important factor only because it may contribute to the child’s welfare.
2. Status quo. The existing living arrangements are a significant welfare factor. They include the child’s settled environment, relationships, security and continuity. They do not create a presumption and are not automatically determinative. The earlier status quo observation in Re G (a minor - custody) [1992] 2 FCR 279 had to be understood consistently with the later authorities.
3. Testamentary guardianship. An appointment under section 5 of the Children Act 1989 is a significant matter to be weighed, but does not generate a preferential position. Where a surviving parent retains parental responsibility and no child arrangements order provides for the child to live with the guardian, the appointment does not take effect merely because the parent dies.
4. Investigation. In a case involving the death of a parent and potentially lifelong consequences, the court must have detailed investigation and analysis of the child’s circumstances. The reports were inadequate because they did not properly address the possible double loss of the mother and current carers, the father’s household, the stability of his relationship, or the emotional consequences of further disruption. The statutory report requirements under section 14A of the Children Act 1989 and the Special Guardianship Regulations 2005 illustrated the level of factual detail required.
5. Separate representation. The case appeared to meet the criteria in FPR PD16A Part 4 for separate representation by a children’s guardian under FPR r16.4(2), because it involved unusually complex issues. The question was left for case management on remittal.

1. Court of Appeal (Civil Division) — Allowed the appeal and remitted the matter for case-management directions, including consideration of interim contact and separate representation: [2015] EWCA Civ 405.
2. Truro County Court — His Honour Judge Vincent made a child arrangements order providing for T to move to her father and his partner after her mother’s anticipated death, with extensive contact to the appellants, and dismissed the application for a special guardianship order.