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Senior Family Law Associate Duncan Ranton discusses the convicted killer wanting Custody of his Children

Australia’s Herald Sun reports (21 Sep 2012) that a convicted killer in Queensland will shortly start court proceedings to obtain “Custody” (aka residence) of his three young children.This is unusual in itself, but more so because the father in question was convicted for killing the children’s mother. The newspaper report says he strangled and stabbed her whilst the three children – then aged one, two and four - looked on.  The father will be eligible to request parole in April 2013. Whilst the crime occurred in 2008, he was only convicted last year. His early entitlement to seek release comes about because he was convicted of manslaughter rather than murder. This followed a Mental Health Court ruling that heavy cannabis use had diminished his responsibility.  The Children have lived with members of their mother’s family since her death. Entirely unsurprisingly, they are said to have responded to the news of the father’s plans with incredulity. What is all the more galling to them is the possibility that the father will receive subsidised Legal Advice and representation, whilst they will need to pay privately.One member of the mother’s family recounted how the oldest child could recall his mother’s killing in “vivid detail”. All three children had been undergoing counselling since learning of their father’s intention to seek residence. “He is the surviving parent, he is partly psychotic and the law should be that you lose your rights to your kids. It is bad enough that they had to see it.”The mother’s family are campaigning for a change to the law in Queensland to introduce a special rule in cases where one parent has killed the other. Whether murder or manslaughter, they say the killer ought to be prevented from playing a part in the lives of the parties’ children.These situations are rare.  However, they occur frequently enough that English courts have sought to develop a framework to deal with them. This framework comes from a case about two young children – Re A and B (One Parent Killed by the Other) [2011] 1 FLR 783. Their father killed their mother when they were just one and two. He was convicted of manslaughter. Immediately after he was arrested, his family (rather than the mother’s) took over the Children’s Care. An issue developed about whether the children should remain there, or move to live with the mother’s parents.  Mrs Justice Hogg decided that the Children were settled with their paternal grandparents, and should remain there. However, they should have increased contact with their maternal grandparents.  She then gave more general guidance about managing parental killing cases. Key was the principle that social services had prime responsibility to bring the family to the court’s attention. It was not for the two grieving Families to attempt to resolve disputes through traditional residence and contact applications. Another central component of the guidance was the need to avoid delay: not only in terms of the court process, but also in relation to obtaining specialist therapy and other help for the children and other family members. The Judge also said there was no legal presumption that the family of the perpetrator should be discounted as carers for the children; each case must be considered individually.The response of the mother’s family in Queensland is wholly understandable on a human level. It must be incomprehensible to them to think that this father, having killed the children’s mother in front of them, might play any significant part in their lives. But a change to the law to prevent any parent convicted of killing the other from seeking residence or contact would not be the proper response. An inflexible rule disqualifying all such parents would cause injustice (for example, where the killing was in self-defence, or diminished responsibility due to sustained Domestic Violence).  Most families will never encounter anything approaching the dreadful predicament in which those mentioned above have found themselves. The court’s quest in disputes about the upbringing of children is to find the outcome that is best for them. That remains the lodestar no matter how awful the situation that gives rise to the court’s involvement.

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