Who can best care for a newly bereaved child?

We all understand that divorce is a traumatic event, and made even more so if there are children involved. Factor in a family death and the trauma rises
to an unimaginable degree.

This was highlighted recently with the emotive case, Re E-R (A Child), where a mother dying
of breast cancer wished her five-year-old daughter, referred to as T, to be brought up by supportive family friends who were already caring for both
of them, rather than by the estranged father who had not played an active part in the child’s life for some years.

The judge in the Truro Family Court initially ruled in favour
of the father, despite the fact that the separation had been acrimonious and he had
moved away. The family friends appealed and the verdict was overturned in the Court of Appeal, leaving the child settled in the care of the friends as her mother had wished and at
her current school where she was thriving.

This highly emotional case underscores the essential legal point that the test in law is
that the welfare of the child is paramount. Questions need
to be asked regarding who
can take best care of a newly bereaved child, understand their needs, give them the best support to grieve and move forward, and eventually recover from their parent’s death?

In this case, the original judgment was based partly
on a ‘broad, natural parent presumption in existence under the law,’ which helped award care to T’s estranged father.

However, Lady Justice King found that the original judge had erred, pointing out that parenthood is only significant
in law in as far as it contributes to the child’s welfare. Applying the welfare test, the family friends were deemed to be in the best position to care for the child. It doesn’t mean that her father is cut out of her life, but that it will take time for a relationship with him to be rekindled and nurtured.

All this begs the broader question as to what a parent
can do to safeguard the future care of their child? In some cases, grandparents may be seen as appropriate carers, but the court must consider factors such as their age and state of health as to whether they can realistically meet the welfare needs of the child.

Financial matters also require consideration. If a parent is making financial provisions
in their will for their child, they might consider splitting control so that a portion of the finances are held by a trustee who is not the primary carer. This can help meet the child’s day-to-day and longer term needs and stop potential conflicts of interest.

Divorce, parental death,
and child bereavement taken separately are events of extreme distress. This recent case proves that, should the worst happen, parents need to be aware that in law the welfare of the child is paramount, and act accordingly. SJ

Marilyn Stowe is senior partner at Stowe Family Law