Re E-R (A Child): No presumption in favour of a natural parent

Lady Justice King
A short note about a tragic case, Re E-R (A Child) [2015] EWCA Civ 405.

Brief facts: The child was born in July 2009. The parents separated in March 2011 and the child remained with the mother. In September 2011 the mother was diagnosed with terminal cancer. As her condition worsened she increasingly relied upon the support of her friends the appellants, a husband and wife. In June 2014 the mother and child moved in to live with the appellants and the wife has been the child's primary carer for the last ten months. The mother made it clear that she wanted the appellants to look after the child after her death, and appointed them testamentary guardians of the child. Meanwhile, the father had moved to another part of the country after the separation and lost contact with the child until November 2014. He now lives with his new partner.

In anticipation of the mother's death, the wife applied for a special guardianship order. The application was heard in January 2015. The judge, under the impression that there was a presumption in favour of the natural parent, dismissed the application and made a child arrangements order providing for the child to live with the father after the mother's anticipated death. The appellants appealed against the child arrangements order, primarily on the grounds that the judge had erred in law, in considering that there was a presumption in favour of a natural parent.

The mother died on the 5th of April, a week before the appeal was heard by the Court of Appeal.

Lady Justice King gave the leading judgment of the Court of Appeal. I don't need to go into the detail  - suffice to say that she accepted the submission that the judge was wrong to proceed on the basis that there was a presumption in favour of as natural parent, and for that reason alone the appeal had to be allowed.