When an individual lacks the necessary mental capacity to make a Will for themselves, it is possible that a Statutory Will can be made for them. A Statutory Will looks and works very much like a regular Will. Under the Mental Capacity Act...
When the mother of a teenage daughter who had been taken into care in 2016 with her agreement had another child, the local council's social services department became involved. The woman's daughter had been removed from home as a result of her mother's relationship with the baby's father. As is often the case in such situations, the family relationship was dysfunctional, having been described as being 'characterised by alcohol consumed by both parties, but more important and additionally, alcohol which fuelled regular domestic violence within the household'.
Following the birth of her son, care proceedings were issued and the mother and child moved into a mother and baby unit. When analysing the local authority's application for a care order, the judge took into account that 'it was accepted by the local authority that the mother's relationship with the child was "excellent". They were bonded; they had formed a close attachment to each other and with the wider family. There were no complaints whatsoever about the mother's ability to parent on "a normal parenting basis".'
Concluding that the effect of being separated from the mother would be 'substantial' for the child, the judge went on to make a care order that he should live with his mother at home, subject to a written agreement requiring that she stay away from alcohol and the child's father, and inform social services if there were any incidence of domestic violence on the part of the father.
Some months later, the mother became concerned about her baby's health and the local hospital diagnosed him as suffering from acute gastroenteritis. The child's illness led the father to arrive at the mother's flat in the early hours of the morning and it was alleged that he accused her of being a bad mother and assaulted her. She called the police and the father left. She kept on insisting that her son was really ill and so it was agreed that they be taken to hospital, where he was diagnosed with meningitis. Following that incident, the council declined to return the child to his mother and placed him in foster care.
The mother went to court seeking to challenge the care order. At the child custody hearing that resulted, the father was not given the opportunity to give evidence, despite being present in the court. This was described as a serious error when the decision was appealed. Whilst the mother's evidence of what had happened that night could be accepted, the finding that the father had committed assault could not stand in the absence of a chance for him to give evidence.
The result of the appeal was that the council's application was not upheld and the child was ordered to be returned to his mother pending final resolution of the matter.