Re Al M
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWHC 1577 (Fam) |
| Year | 2021 |
| Court | Family Division |
2021 May 25; June 10
Children - Guardian - Effect of appointment - Mother wishing to appoint testamentary guardian to have care of children in event of her death - Whether appointment taking effect immediately on death of mother if child arrangements order providing for children to live with mother -
The mother of two children, both of whom been made wards of court, believed that her life might be in imminent danger as result of the actions of the father, who for a number of years had engaged in coercive and controlling behaviour of a high order. Concerned about what might happen to the children if she were to die, the mother wished to appoint a testamentary guardian to have care of the children upon her death, pursuant to section 5(3) of the Children Act 1989F1. Although the father accepted that the mother was the parent with whom the children lived and would continue to live, the mother applied for a child arrangements order under section 8 of the 1989 Act identifying her as the person with whom each child was to live (a “lives with” order), contending that the appointment of the testamentary guardian would take effect immediately upon her death pursuant to section 5(7)(b) of the Act if there was a “lives with” order in her favour. The father opposed the application, contending among other things that the mother was wrong about the effect of section 5(7)(b), so that irrespective of the grant of a “lives with” order the appointment of the guardian would only take effect on his subsequent death, since he also had parental responsibility.
On the application—
Held, granting the application, that on a true construction of section 5(7)(b) of the Children Act 1989 the appointment of a testamentary guardian under section 5(3), which could only be done by a parent with parental responsibility or an existing guardian, would have immediate effect upon the death of the parent or guardian making the appointment if immediately before that person’s death there was in force a child arrangements order under section 8 naming them as a person with whom the child was to live; that, so construed, section 5(7)(b) gave priority to the appointment of a guardian when it had been made by a parent or guardian whom a court had determined should have the child living with them, and created an exception to the ordinary position under section 5(7)(a) whereby the appointment of a testamentary guardian by one parent or existing guardian would not take effect on the death of that parent or guardian unless, at that time, there was no other living parent with parental responsibility; that, therefore, the grant of a “lives with” order in the present case would have the consequence that an appointment by the mother of a testamentary guardian under section 5(3) would take effect immediately upon her death; that, in the circumstances of the present case, it was very much in the children’s best interests for their mother’s wellbeing and emotional viability to be supported where possible so that any reasonable step that the court could take in order to reassure the mother and meet her emotional needs as a parent and as the children’s primary carer was likely to be justified; that, accordingly, a “lives with” order would be made on the basis that the mother would appoint a testamentary guardian for the children, if she had not already done so; and that, in the circumstances, it would not be appropriate to require the mother to disclose the identity of the guardian to the father (post, paras 27–35, 36–37, 40–44).
The following cases are referred to in the judgment:
Al M (Fact-finding), In re
Al M (Fact-finding), In re
E-R (Child Arrangements Order), In re
No additional cases were cited in argument.
APPLICATION
By an application notice dated 17 September 2019 the mother sought a “lives with” order under section 8 of the Children Act 1989 in respect of two children identifying her as the person with whom each child was to live. The application was supported by the children’s guardian but strongly opposed by the children’s father. Within that context the issue between the parties was whether the appointment of a testamentary guardian nominated by a parent who, at the time of their death had a section 8 “lives with” order in their favour, took effect on the death of that parent or only on the subsequent death of any other parent with parental responsibility.
The hearing was held in private and the judgment, handed down in private, is reported with leave of the judge on condition that the anonymity of the children be strictly preserved.
The facts are stated in the judgment, post, paras 6–11.
Charles Geekie QC, Timothy Otty QC and Sharon Segal (instructed by
Lord Pannick QC, Deborah Eaton QC, Richard Spearman QC, Godwin Busuttil, Daniel Bentham and Stephen Jarmain (instructed by
Deirdre Fottrell QC and Tom Wilson (instructed by
The court took time for consideration.
10 June 2021. SIR ANDREW McFARLANE P handed down the following judgment.
1 The purpose of this short judgment is to determine a single issue that has arisen in the course of long-runmng wardship proceedings, the background to which is well known and need not be repeated here. The issue is whether the mother of the two wards should now be granted a “child arrangements order” under Children Act 1989, section 8 (“CA 1989”), within the wardship, identifying her as the person “with whom [each] child is to live” (a “lives with order”). The application is strongly opposed by the children’s father, but firmly supported by the children’s guardian.
2 The application is made in circumstances where the fact that the children live with, have always lived with and will continue to live with their mother has been established, agreed and accepted since the early stages of the proceedings some two years ago. On 31 July 2019 the court made an order, with the agreement of all parties, expressly prohibiting any person from removing the children from the care and control of their mother. That order remains in force and there is no suggestion that it should be altered or revoked. In his witness statement of 4 October 2019 the father acknowledged that the mother “is and will continue to be the parent with whom the children live”. On 8 October 2019, the father consented to an order in those terms and recording that that state of affairs could be communicated to the children. More recently, in an order of 15 July 2020, it is stated that “the children will live with the mother and attend school in England”.
3 At the final welfare hearing, which is now planned for September 2021, there is no issue over the plan for the children to continue to have their home with their mother and for her to be their sole carer.
4 The mother’s application for a “lives with” order under CA 1989, section 8 was made as long ago as 17 September 2019. At earlier hearings the court has declined to make a section 8 order on the basis that to do so was not necessary. In particular on 8 October 2019 1 rejected the proposal that a section 8 order should be made, preferring the arrangements to be recorded within the wardship.
5 Matters have now, however, come to a head and, despite there being no dispute about the living arrangements, despite the final welfare hearing being only a few months away and despite it being accepted that the wardship will continue at least in the medium term, the mother seeks to persuade the court to grant her a “lives with” order at this hearing.
The mother’s application for a “lives with order”6 In order to understand the context within which the mother makes this application, it is necessary to rehearse some of the recent history and to note what the mother says about the impact that it has had on her. The recent history, of course, itself sits within the overall background to these proceedings which is characterised by coercive and controlling behaviour of a high order by the children’s father and which is marked by the serious findings made by the court in the main fact-finding judgment dated 11 December 2019, In re Al M (Fact-finding) [
7 More recently, the father, through a family trust, has attempted to purchase the 70-acre estate immediately abutting the mother’s home in Berkshire. Despite negotiations for this purchase having been ongoing for some two years, and despite the mother’s lawyers, over a period of many months, persistently and directly asking the father, through his English lawyers, to confirm that he was not engaged in purchasing property near to hers, the father did not reveal details of the proposed purchase until the court required a straight answer to the question.
8 At around the same time, in August 2020, the mother and her English lawyers became aware that her mobile phone and those of some members of her security staff and her solicitors had been the target of hacking by a highly sophisticated software programme that is only available for use by nation states. The father firmly denied that any of the phones had been hacked and claimed that, if they had, then he had no knowledge of or involvement in the hacking. In order to marshal and then evaluate the evidence...
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