Tuesday 9 October 2012

Real life drama – Part 2

Following on from my last post here’s the next storyline….

 1. The non-biological mother and Residence
Ashley is Gaby’s biological father, her mother not being around (although if she were matters might be different again). Ashley and Laurel (his wife and Gaby’s step-mother) have separated and Gabby and her half-brother (Ashley and Laurel’s son) Arthur have remained living with Laurel and have had Contact with their father until recently.
Gaby expressed a wish to stay with her father and, although he does not have appropriate housing at the moment and has suffered anger management issues, which manifested themselves in him physically attacking his own father and controlling his money, he has taken Gaby to live with him.
Much as with Paddy’s situation, the fact that Laurel married Gaby’s father does not provide her automatically with PR for Gaby – I must confess that I cannot remember far back enough to know whether there was some PR agreement made between Ashley and Laurel so I assume that there is not. Ordinarily that would mean that Gaby’s school might be in difficulty providing information about Gaby to Laurel without Ashley’s agreement. In addition, it means that technically Ashley is able to decide the big issues in Gaby’s life without consulting Laurel, including where she resides. Ashley should be consulting with Gaby’s biological mother.
Ashley is perfectly able to remove Gaby from Laurel’s care but of course he must consider Gaby’s best interests. If Laurel wished to prevent Gaby’s removal from her care or seek her return then she would need to make an application to the Court for a Residence Order in her favour – as she is Gaby’s step-parent.
In determining Gaby’s Residence, the Court would need to have regard to the “welfare checklist” under the Children Act 1989, which includes the child’s wishes and feelings (considered in the light of their age and understanding), the child’s physical and emotional needs, the likely effect of any change of circumstances, how capable each party is of meeting the child’s needs and any harm or risk of harm to the child.
Gaby, as I understand it, is about 10 years old and is clearly capable of expressing a view. Her wishes will not be the overriding factor, given her age, and although she is aware of the difficulties that her father has had as regards his anger she is probably not old enough to understand any on-going risk to her – if indeed there is any, on the basis that he has been having unsupervised Contact with the children.
The Court would have to assess any anger management issues that Ashley continues to have and any risk that he might pose. In addition, they would have to weigh into the balance Arthur’s best interests and whether it would be appropriate to split the siblings or whether this is likely to cause them more harm. If it is decided that to split the siblings is not appropriate, and it is unusual, then the Court will need to balance the needs of both children in coming to a solution.
The fact that Ashley is Gaby’s biological parent is a factor that the Court will have to consider but it is not determinative. It is certainly a contributor to the Court’s balancing exercise, as will be the length of time that Gaby has been with her father by the time any Court application is made. Laurel has, however, parented Gaby for some significant time and her relationship with Laurel will also need to be considered.
So…..we’ll see what action Laurel decides to take - will the children continue to grow up in separate households, will Arthur move also to reside with his father or will Gaby have to return to Laurel’s care…you never know, although far less appealing as a soap storyline than a Courtroom battle, the show might favour an amicable resolution in the children’s best interests as the real world does!

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