Q&As

Within care proceedings both a birth parent (who has previously not cared for the child who is the subject of the proceedings) and a family member have been positively assessed by the local authority to care for the child. Is there a presumption in favour of a birth parent instead of a wider family member when the court is considering with whom the a child should be placed?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on LexisPSL on 04/10/2018

The following Family Q&A Produced in partnership with Katherine Illsley of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Within care proceedings both a birth parent (who has previously not cared for the child who is the subject of the proceedings) and a family member have been positively assessed by the local authority to care for the child. Is there a presumption in favour of a birth parent instead of a wider family member when the court is considering with whom the a child should be placed?

Whether there is a presumption in favour of a birth parent was considered within the context of private law proceedings by the Court of Appeal in Re E-R (Child Arrangements Order). The background to the case was that the subject child lived with her mother who was terminally ill. At first instance, the court had provided for the child to live with the father upon the death of the mother, rather than under a special guardianship order with the friends of the mother who had been caring for the child and mother during the latter’s illness. As can be seen at para 35 of the judgment, the court rejected the concept of a presumption in favour of a birth parent:

‘In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person in the proceedings, neither does…the fact that a child has been living with a party for a significant period of time; each are factors of significance which will be taken into account and given appropriate weight by a court when determining the best interests of a child Whether any suc

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