A section 37 report is prepared when the courts become concerned surrounding the welfare of a child. The courts will order a section 27 report to address their concerns and essentially are asking the local authority to consider whether it should be taking further steps to protect a child. The court directs the local authority to undertake a thorough investigation into the child’s circumstances and report its findings to the court. The reporting of these findings is known as a section 37 report. The report is usually ordered when the court seems that it may be appropriate for a care order or a supervision order to be made.  

When one parent dies the surviving biological parent can look to obtain custody of the child. It is important to note that the law is not biased towards certain genders. Therefore, if a mother of a child dies the biological father of a child can obtain custody. Unless there are extreme circumstances which are likely to impact the welfare and the safety of a child, the custody of the child will be placed with the father and vice versa. However, there is no legal presumption that the surviving parent will always get child custody after death of a parent.

Quite often we see that a mother may be awarded custody of a child by the courts and the father has contact with the children. In such a scenario, if the custodial parent which is the mother dies, the biological father can look to obtain child custody after death of custodial parent. For this to happen the father must have parental responsibility of the child. This can be obtained by being named on the child’s birth certificate, being married to the mother at the time of the child being born or being in receipt of an acknowledgement of paternity from the mother or the courts.

In order to obtain child custody after death of custodial parent, if a father has not established paternity, they can look to do so by completing a paternity test through the courts.

The courts may be reluctant to award child custody after death of a custodial parent to the surviving parent if doing so will affect the welfare and safety of a child. This could either be due to the surviving parent having issues with drugs, alcohol or even other issues such as violence, or inability to care for the children due to terminal illnesses. Children who have suffered abuse, whether physical, psychological, or emotional abuse from the surviving parent may not necessarily be placed in the care of this parent where it is detrimental to their welfare and safety.

Furthermore, if a surviving parent terminated their parental responsibility by of the child being adopted by a step parent then this will also affect child custody after death of a custodial parent, given that they would have relinquished their rights including the right to obtain child custody after death of a parent.

Although young children may not be seen as capable of making decisions, where a child is old enough and mature enough to make decisions, they can request whom should have custody after death of a parent. In such a situation the courts may look to support the wishes of the child providing it is in their best interests and welfare.

A surviving biological parent may not be the only person concerned with child custody after the death of the primary carer. Grandparents, aunties, uncles, cousins, family friends and even neighbours may look to obtain child custody after death of a parent. Where there are no other alternatives or candidates, the state can also secure custody of the child after the death of a parent. In such a case the children would enter the foster care system.

In the unfortunate circumstances of both parents dying before a child reaches the age of 18 years, the child custody after death of both parents becomes complicated. The legal position is that the children will become the responsibility of the courts until a guardian has been decided upon. In such a situation the courts will consider whether the parents of the child had made a will or not. Where parents draw up wills that have outlined who they wish to have child custody after death of both parents then the courts will more than likely follow the wishes of the parents. This is providing there are no issues as to why the chosen or nominated guardian cannot acknowledge child custody after death of both parents.

Parents of a child can often have contrasting wills. Where both parents have made wills in relation to child custody after death of both parents then the courts will usually take in to account the wishes of the last parent to die.

However, the courts have the powers to intervene in the case of contrasting wills of the parents. The courts will consider evidence from both potential nominated guardians and decide based on the best interests of the child. The courts will consider the welfare checklist and will base their decisions on the welfare and the best interests of the child.

In the absence of a will of the parents and following the death of both parents the decision to award the custody of the child will be placed with the court. The courts will undertake this decision by considering who is the best placed person to cater for the needs and wellbeing of the child based on the evidence it adduces at a hearing. Despite their being surviving grandparents, aunties, uncles or siblings they may not be considered as automatic choices for child custody after death of both parents.

The courts will usually take into account the person who is most closely related to the child and whom the child knows and has spent time with. In the absence of close relatives and family members the courts can take into account family friends for child custody after death of both parents. It is important to noting that when considering child custody after death of a parent the courts will take into account where the child will live and which option would cause the least disruption to the child’s life and daily routine, this includes the impact to their education and other activities.

When will the court consider family friends as suitable for child custody after death of custodial parent?

Where a custodial parent dies and there are no close relatives the court may consider providing custody to third parties. These may include family friends or other associates of the family. In order to provide third party custody, the court must be satisfied that there is an established relationship with the child and the family friend or third party and that awarding third party child custody after death of custodial parent will be in the best interests and welfare of the child.

Can parents nominate someone to take child custody after death of a parent in any other ways except a will?

Parents do not always consider a will is needed until the future. This could be due many reasons including not being sure of what assets and belongings they will leave behind or how their relationships may change. A parent can nominate a guardian without making a will. They chose who will be a guardian for their children in the even they die. In order to do so the guardian must be appointed, with an agreement in writing and executed by 2 witnesses.