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Child Care Solicitors

Appeal Court upholds dying mother’s wish for daughter to be raised by close friends rather than child’s father (28 April 2015)

Date: 28/04/2015
Duncan Lewis, Child Care Solicitors, Appeal Court upholds dying mother’s wish for daughter to be raised by close friends rather than child’s father

The Court of Appeal has granted a dying mother’s last wish by ruling that her daughter can live with close family friends rather than the child’s biological father.

The Daily Mail reports that the family court had ruled the five-year-old – named only as T – would be sent to live with her father after her mother’s death from terminal breast cancer.

The 48-year-old woman died earlier in April, having fought for close friends – a married couple – to bring up her daughter after her death. She died before a decision could be reached about whether the court’s previous ruling could be overturned to comply with her wishes.

The Court of Appeal was told that the girl’s father had split acrimoniously with the child’s mother in 2011 and had lost contact with his daughter for two years after moving from Cornwall to Suffolk – five hours away from his daughter – to live with a new partner and her two teenage sons.

However, six months after the child’s parents had separated in March 2011, the mother had been diagnosed with terminal breast cancer when T was only 20 months’ old.

The father had parental responsibility for T throughout her life – and had an attempted a reconciliation with the mother, the court heard. However, the reconciliation did not last and a further acrimonious separation was followed by the restraining order against the father being granted by the court. The child’s father had not seen her after separating from her mother until November 2014.

Friends of the mother successfully managed to get the previous ruling that the girl should be brought up by her father after her mother’s death overturned, however.

Sitting in the Court of Appeal, Lady Justice King was told that the mother had wanted her daughter to be brought up by the married couple who cared for them during her illness.

She told the court:

“It is hard to imagine how it must have been for this mother to have to face the knowledge that her death was inevitable and that she must leave her young child to be brought up by someone else.

“One can only deeply regret that she died with this appeal outstanding – and without knowing who was to care for her daughter following her death.”

The court heard that in her last months, her close friends had cared for the mother and her daughter at their home – and the mother believed her child would be “safe, secure and settled” with the couple, whom she named as her daughter’s guardians.

The girl’s father made an application for his daughter to move in with him and his partner, however – and also made “unsubstantiated and serious allegations” against the mother's friends, the court heard.

Justice King said that the previous ruling by Judge Vincent had been wrong – Judge Vincent had said at the previous hearing that he had reservations about the father’s commitment to bringing up his daughter; and Justice King said the ruling had been an error because of the presumption that the girl should be sent to live with her father following her mother’s death.

“This was wrong in law – and as already indicated upon that basis alone, the appeal must be allowed,” Justice King ruled.

She also added that the letter submitted by the father – who is representing himself – “sadly serves only to underscore his animosity towards both the dying woman and the couple who have provided a home for her and for T during the period of time when he had been absent from their lives.”

Justice King sent the case to Cornwall, where the child lives, and where a family judge will decide on what is in the best interests of the child, as well as any contact she has with her father.

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