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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