In over 30 years of practice some of my saddest and most memorable cases have involved terminally ill clients who are anxious to ensure that their minor children are cared for following death. Frequently these cases have involved an acrimonious separation of the parent.

Relative and friends have often played a huge part in the upbringing of children, sometimes replacing the other parent. Often these people are named as testamentary guardians in preparation for the death of the primary parent and in the hope that this will give a safe and secure future for the children.

In the case of Re E-R (a child) (2015 EWCA Civ405), the parents had been in a relationship from 2007. Their daughter was born in 2009 and the father appeared on the birth certificate and therefore had parental responsibility. The parents separated in 2011 when the child was 20 months old. The mother was 44 years at the time and had been diagnosed with terminal breast cancer.

The separation was acrimonious and it is fair to say that the father had very little to do with the child from 2012 onwards following the making of a restraining order against him.

During the course of her illness the mother had been supported by two friends (“the carers”) and she and the child had moved in with them for the 10 months leading up to her death. Prior to her death she had appointed them as testamentary guardians and they had applied for a Special Guardianship order.

Traditionally family lawyers have referred to the broad presumption in favour of the natural parent regardless of the status quo at the time of death. It is always a consideration and we are generally keen to make sure that the appointment of a testamentary guardian is not determinative and will not necessarily govern how the child is cared for going forward.

This case reminds us that every case is fact specific. In the lower court the Judge had concluded that the status quo (in favour of the carers) could not displace the proposition that the natural parent (the father supported by his girlfriend) should assume care for his daughter who was by then 5 years old.

The carers appealed and sadly the mother had died one week prior to the hearing of the appeal.

Lady Justice King gave the leading judgment and examined the earlier case law. She said that the welfare of the child is the paramount consideration. Of course biological parent hood is an important factor but one of many. She concluded that it was not “an elevated presumption” in favour of the surviving parent but neither was maintaining the status quo an elevated factor. She stressed everything depends on the unique facts of each case. The carers appeal was allowed and remitted for a re-hearing.

It is important to note that whilst the child’s mother had seen the appointment of her friends as testamentary guardians as conferring parental responsibility this was not, in fact, the case. It is not possible for parental responsibility to take effect when the natural parent (here the father) was alive with parental responsibility. In this case the carers derived their rights under the interim order which was made without notice in August 2014 when the mother’s death appeared imminent. The carers did not receive any rights by virtue of the mother’s Will in which she appointed them as testamentary guardians. This is pursuant to Section 5(7) and (8) of The Children Act 1989 which means that the testamentary guardianship does not take effect as long as a father is alive and has parental responsibility.