The parties had lived in Australia and were still married when the woman was diagnosed with cancer and she decided to travel from Australia to England for treatment. The husband had agreed to the trip on the basis that she was going for treatment and the children would have a holiday. However, without his knowledge, the woman had taken legal advice and had decided that she wished to stay in England with the children.
It is reported that the woman had made a Will and within it stated: “Under no circumstances do I wish my children to be returned to their biological father in Australia, as this would be detrimental to their lives”.
The woman left Australia in July 2013 and subsequently died late in 2014. After her death, the woman’s parents cared for the children. The husband made an application to the court for the children to be returned to Australia. He argued that the children had been born in Australia, had grown up in Australia and that he had never consented to them moving to England to live on a full time basis.
The judge ruled in favour of the husband, on the basis that he had been misled by the wife and the children had been wrongfully retained in England. He said there was no evidence that the children were told of the plans to keep them in England permanently. The judge further said that the children were not able to say goodbye to their friends, schools or neighbours and they left many favoured objects behind them, fully intending to return.
Emma Alfieri from Steeles Law’s family team commented: “This can be a very difficult issue. Often, when parties are separated, parents require advice as to what they can do to regulate who would care for the children in the unfortunate event of their death. Our advice to parents is always that if both parents have parental responsibility then, in the event of one parent’s death, the other parent would automatically acquire sole parental responsibility of the children and would be the obvious party to care for the children.”
Of course, it is possible for a parent to document in a Will their wishes as to who would care for the child/children in the event of their death. This is what the woman did in the above case, however, as can be seen, if the other parent has parental responsibility, they would have a strong argument that the children should reside with them. It always depends on the circumstances of the case; each case is different and has different circumstances involved.
For further advice on this or any other divorce, separation or children matter, please contact Steeles Law’s family law team.