How does a judge decide who gets custody after the death of a parent?

The best London children solicitors are often consulted over the childcare arrangements for a child after the loss of a parent. That is because nowadays there are many:

• Single parents whose children are partially cared for by grandparents or aunts or older siblings so the single parent can hold down a job;

• Single parents who are in a new relationship with a new husband, wife or partner who want to care for their stepchild;

• Parents are starting families at a later stage in their lives leaving children more vulnerable to the risk of losing a parent during their childhood.

Ideally, if a family knows that a parent has a terminal illness, the parent will make their childcare wishes known before their death or, if that is not possible or if not all the family members agree with the parent’s views, the family will talk and reach an agreement over the immediate and long-term arrangements for a child.

The top London children solicitors always urge family members to take legal advice before stepping in and starting court proceedings. That is so they know where they stand legally and so they can think about non-court options to see if a childcare agreement can be reached in the short or long-term without having to go to court at a time of bereavement.

To speak to a member of the London based OTS solicitors children law team about the childcare arrangements, custody, residence, access, contact and child arrangements orders please call us on 0203 959 9123 for an initial discussion about how we can help you.

The top London children solicitors advise that the recent court case of A v B and C [2018] EWHC 3834 (Fam) looked at the custody and legal issues involving a sixteen-year-old girl after her mother’s death. The child’s maternal aunt and the child’s father could not reach an agreement over where the child should live.

The facts of the case are a little unusual as normally when a child is sixteen years of age a parent or family member will not apply for a child arrangements order (the new name for custody, residence, and contact and access orders). Instead the family will normally allow the child to make their own decision, in part because the court will not make a child arrangements order in relation to a child that is over sixteen unless the circumstances are highly unusual. For example, there are Immigration law issues or the child suffers from a disability.

In the case of A v B and C [2018] EWHC 3834 (Fam) the child’s parents were both Nigerian nationals and the child spent the majority of her first eleven years of her life in Nigeria being brought up by her mother. The pair came to the UK when the child was eleven, at which point her father started to have contact with her. Sadly, the child’s mother died when the child was age fifteen and the child’s maternal aunt sought custody by applying for a child arrangements order. The father later applied to vary that order so that the child lived with him on a full time basis and, if the court made the court order the father sought, the aunt would lose her parental responsibility for her niece through the termination of her child arrangements order.

The best London children solicitors say that the court judgment makes illuminating reading for anyone contemplating applying for a child arrangements order. The court was critical of both the child’s aunt and father’s acrimonious relationship and their disputes over the management of the estate of the child’s mother.

The judge decided that it was in the child’s best interests that a child arrangements order was made providing for the child to live with her father and spend at least three days a week with her aunt. As the aunt has a child arrangements order she will share parental responsibility for the child with the child’s father.

The best London children law solicitors advise that the judge In the case of A v B and C [2018] EWHC 3834 (Fam) looked at whether the child’s father should benefit from a presumption that a child should live with a natural parent instead of an extended family member, such as an aunt or grandparent.

The judge looked at earlier case law on the rights of parents to look after their children in preference to them being cared for by family or friends. He concluded that there is no assumption in favour of a parent that their child should live with them. Instead, the court should make any child arrangements order based on the court assessment of the best interests of the child, rather than the strength of the biological ties.

The top London children solicitors advise that the judge also reminded those applying for a child arrangements order about how the court should address the Human Rights arguments of parties in children court proceedings. Where there are Human Rights considerations and tension between the Human Rights (for example, the right to family life) of the adult applicant and respondent to the court proceedings and the child, the Human Rights of the child should prevail.

The best London children solicitors recommend that anyone who is contemplating starting child arrangements order court proceedings take expert legal advice before doing so. That is because it is sometimes possible to avoid children court proceedings through solicitor negotiations, roundtable meetings or family mediation. If court proceedings are necessary, a top London children solicitor can help a parent or relative focus their case on the child to maximise the prospects of securing the child arrangements order they seek.