It seems like an easy question. But in fact it is far from it, and happens to be one that is leading debate-upon-debate in political, social and legal circles in this country and around the world.

There wasn’t time to explain the convoluted situation we have at present in England and Wales before we went live. The subject didn’t come up on the show, although it was scheduled so I thought I would cover the topic here, as few people fully understand the current law. I also wish to pose a few questions of my own, on the current state of affairs from a parent’s perspective.

Parents and their rights

Parents are the people who usually plan, bear, nurture, educate, maintain and care for their children. They love them unconditionally – even in times of extremis (and I’m sure every parent will have their own definition of what extremis entails!). As parents, we selflessly do whatever we can for our child. We do so regardless of their advancing age, because we unashamedly have natural and profound feelings of love and attachment to them, so much so that we cannot ever love any other in the same way.

But the feelings of parents, as raw and deeply felt as they may be, are often ignored or simply not recognised in law.

This “stiff upper lip” approach, which ignores the rights of parents, is applied to private law child legislation that was formed as a result of the prevalence of child-centred sociology 20 years ago. Back then the concept of custody and access to a child, which had given rights to parents, was done away with. In favouring such a child-centred approach, especially within a catch-all legislation that encompassed both public and private law, I have to wonder whether the baby was not thrown out with the bath water. And I also have to ask: should public and private law for children be dealt with together?

Entirely child-centred legislation may well be understandable in cases of child abuse and parental neglect that occupy the public law courts. But it is not as easily comprehensible if a dispute arises as a result of a broken relationship between parents, given that accepted sociological thinking has for many people moved on.

Nowadays parental needs and rights are at the forefront of family law, as a result of parents literally demanding recognition. However, not everyone agrees and we continue to adopt the same approach. This was highlighted by The Law Society’s family law committee in a recent press statement that queried the Government’s proposals for a legal presumption of shared parenting after divorce.

With such conflicting opinions, what is the state of the current law in relation to the rights of parents?

The relevant legislation is set out in the Children Act 1989. Section 2 of the act defines what is known as “parental responsibility”, which married parents both have for their children.

So what is “parental responsibility”?

According to Section 3 of the Children Act 1989, parental responsibility is:

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

(N.B: Unmarried mothers automatically acquire parental responsibility for their children, but unmarried fathers do not – unless their child was born after 1st December 2003 and their name appears on the birth certificate, or they have acquired parental responsibility by agreement or court order. Even if the unmarried father has lived with the children for years, this does not automatically confer parental responsibility on him. The court will only consider giving him parental responsibility if he can demonstrate good reasons for his application and a sufficient degree of commitment and attachment to the child. In making its decision, the court will consider all of this from only one perspective: that of the child.)

Unhelpfully, and deliberately no doubt, the statute does not go on to further define what this definition of parental responsibility actually means – in particular, the rights to which it refers, including those of a parent to a child.

So with no legal definition how does a court make a decision involving children, and parents who have “parental responsibility” for these children?

According to Section 1 of the Children Act 1989, the court must make its decision solely on the basis that “the child’s welfare shall be the court’s paramount consideration”. Similarly, the issue of “delay” is considered so important it has its own subsection:

“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”

To assist the court in its decision, there is a welfare checklist at Section 1 (3) of the act, detailing other factors that it must take into consideration:

(a)          the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)          his physical, emotional and educational needs;

(c)           the likely effect on him of any change in his circumstances;

(d)          his age, sex, background and any characteristics of his which the court considers relevant;

(e)          any harm which he has suffered or is at risk of suffering;

(f)           how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)          the range of powers available to the court under this Act in the proceedings in question.

It is interesting to note that only point (f) makes any mention of the parents, and only then from the perspective of the child. It could easily be argued  it is that clause alone which has given rise to all the problems experienced by  separating parents. The test is one of fitness which a court is bound to apply. Why so? Surely fitness to parent and meeting a child’s needs should be a given? Why is a parent required to prove fitness to parent a child? If there is to be a test, should it not be coming from the opposite position – why isnt a parent fit to parent a child?

As the Children Act 1989 is vague in relation to the meaning of parental responsibility, and in particular what “rights” means in relation to parents, I checked Directgov for further information. The website interestingly refers instead to “key roles” of parents – and these are as follows:

• providing a home for the child
• having contact with and living with the child
• protecting and maintaining the child
• disciplining the child
• choosing and providing for the child’s education
• determining the religion of the child
• agreeing to the child’s medical treatment
• naming the child and agreeing to any change of the child’s name
• accompanying the child outside the UK and agreeing to the child’s emigration,  should the issue arise
• being responsible for the child’s property
• appointing a guardian for the child, if necessary
• allowing confidential information about the child to be disclosed

We are not alone in this country in specifically failing to define the rights of parents. The position is the same in Australia for example. However, here in England and Wales we seem to have reached a stage where only the rights of the child count, despite the notion of parental responsibility. While this may ultimately have arisen as the preferred option following bitter custody fights in the past, are we not capable of reaching some meaningful middle ground?

In a perfect world when parents are not in dispute, the lack of a definition of parental rights may not matter. But if they are, parents will unhappily discover that phrases such as “parental responsibility” and “key roles” mean very little. Instead, they will find that the parent with whom the child is living holds all the cards – and not because of the law, but because of the lack of it. In reality parents have no presumptive rights to any form of shared parenting, contact or residence of the child, even though the Directgov site seems to encourage parents to believe otherwise.

So from the perspective of a parent, is this right?

In order to begin to answer this question, I first have to ask myself how I would have felt had I surrendered my child to an estranged spouse and found myself physically separated from them with no redress and no presumption of any form of shared parenting in my favour? Unhappily I imagine, particularly if I then had to build a case as to why I should have my child living with me, or see him. Surely this balance is wrong?

We are told that a debate is currently swirling within Cabinet as to the pros and cons of the Family Justice Review report, which was entirely created by child-focussed professionals. The Law Society Family Law Committee is similarly represented by a number of respected child lawyers. The consensus of these professionals seems to be that there should be no presumption of shared parenting – but are they right?

If a strong case has been made over the last few decades for the rights of parents, which I for one think it has been, the argument moves on to the extent to which parental rights should be enshrined within law while maintaining a built-in safeguard for the child concerned.

I don’t see what harm can be done by amending the welfare checklist to include a presumption of shared parenting in favour of both parents. This would include the right to exercise contact and have their child live with them, providing of course that this is not deemed harmful to the child. Altering the balance in favour of both parents’ rights simply echoes the “key roles” on the Government’s own website and seems to me to be just as important as highlighting the evil of “delay” in Section 1 of the Children Act 1989.

Ignoring parents’ rights entirely, merely paying lip service to their “key roles”, while knowing it will count for nothing in a dispute devalues the more important role of a parent particularly living with a child. While there are other statutes which require parents to support their children, parenting a child is a unique relationship and a privilege for all concerned. Consequently I see nothing wrong with a presumption in favour of shared parenting. It will be up to the courts to interpret what that means in each case, and in many cases it will potentially make no difference at all. But at least both parents can go to court confident that in law, each of them has a right to parent their child and “parental responsibility” has real meaning for them both.

So, do you agree that in law this special relationship should remain a one way street? Please let me know your thoughts in the comments section below, or discuss the issues in our new forum.

Image credit: Edgar Degas

Sir Nicholas Wall said:

“Allegations of sexual abuse were first made by the mother and not by X [the child]… X was coached by the mother to make allegations of sexual abuse against the father.”

He explained his decision to sit in open court as follows:

“The father is entitled to tell the world, and the world is entitled to know, that he is not a paedophile, that he has not sexually abused his daughter and that the allegations made against him are false.”

Now the father has been publicly exonerated in national news reports. The damage done to him has been corrected, although I expect that there will always be some people who believe him guilty. That is the way of the world. The child now lives with him, and Vicky Haigh may make no applications to the court about the child for two years. She is living in Ireland, having given birth to a second child there to evade concerned social workers.

Vicky Haigh’s sexual abuse allegations were examined and rejected by two judges at previous High Court hearings, which took place in private. However the allegations were also repeated elsewhere. Yesterday Sir Nicholas Wall sentenced Elizabeth Watson, a private investigator engaged by Vicky Haigh, to nine months’ imprisonment for contempt of court.

Sir Nicholas Wall said that Vicky Haigh had been “wholly unable to accept the court’s verdict and, with the misguided assistance of Elizabeth Watson has unlawfully and in breach of court orders put into the public domain via e-mail and the internet a series of unwarranted and scandalous allegations about the father and others”.

The Court could not have come out more strongly against Vicky Haigh and her supporters. There will still be those who side with her. As for me: based on what I have read in the newspapers today, I find this to be one of the most repugnant cases I have ever come across.

I am sorry to say that it is not the only case of women behaving badly that I have encountered. Over the years I have, on occasion, come across other women who are prepared to stoop this low. There is, perhaps, a taboo about discussing women who behave badly. But during a family breakdown both sexes can behave towards each other with conduct so bad, it beggars belief. So in this post, which I understand is likely to prove contentious, let’s look at how women can behave. Fortunately such cases, in common with those of men who stoop similarly low, are rare.

Sometimes, I have found myself acting for a less sinister version of the mother whose conduct was laid bare in the High Court yesterday. At our first meeting she will tell me, in graphic detail, about her suffering at the hands of her monster of a husband. She and the children are at his mercy. She will be intelligent and persuasive. However as the case goes on, and the excuses for not settling come thicker and faster, it becomes apparent that far from being the victim, she is in fact in complete and utter control of the family’s situation. For example, she will do all she can to ensure that the father never sees his children at all. She will make arrangements for all their free time. She will have ready excuses for why he can’t have the children for contact when he comes to collect them. She will always blame him for this state of affairs, ultimately because of what he has done to her. It will never, ever be her responsibility. Perhaps she makes him jump through hoops of fire because he has left her, and this is “payback time”. Perhaps she feels that she hasn’t had enough money from him, so he must pay.

In such cases, there is little doubt that once I twig what is really going on, and the extent of her determination to stop him seeing his children becomes clear, she will likely part company with our firm. We cannot continue to act for a client who is playing out a charade for revenge, who lacks insight, and who has no comprehension or concern of what she is denying her own children: the right to a relationship with their father.

Such people portray themselves as victims, their partners as predators when nothing could be further from the truth. The perceived wrongdoings in a relationship should have as little impact upon the children as possible, but every effort we may make to resolve the situation falls on stony ground. This particular client has no intention of settling with the father, none at all. The intention is to completely alienate the children from the other parent.

(Don’t overlook the fact that even if we don’t see eye to eye with a client, another firm of lawyers will. An individual will have his or her own version of what is happening, and everybody has the right to have a case heard by the court – which is as it should be.)

I have also acted in two cases of a type rarer still, for innocent fathers who never faltered in their accounts of what had happened. In one case, the mother made an allegation of paedophilia -whereas it was the mother herself who was the paedophile. She had lost control of herself and, emboldened by all the steps the court and social services were taking to protect the children from the father – removing him from his home and allowing him the strictest possible supervised contact – she sexually assaulted one baby on a day when the father could conclusively prove that he’d had no contact with the child. The children were ultimately removed from the mother by social services, and placed with their father.

In another case, the father had to move out of his home following allegations of violence, which he disputed. There followed an arduous battle for contact with his children. Ultimately the father was successful, but the struggle wore him to a frazzle. It was a lengthy case, and our firm ended up doing the last part of it pro bono. The mother made all the nastiest allegations that she could, did all she could to avoid giving him any contact, then permitted only the most limited contact. She almost got away with it, hoping he would give up – but with our support, he did not.

There are, I am very sorry to say, those who are so driven by a desire to punish their former partners that they will do anything to hit back. Anything at all.

The problem is that it is much easier to believe these types of allegations, because in certain cases, they are true. There are fathers who do abuse their children. And because the allegations can be true, we think they must be true. We desperately want to protect the innocent children who are at risk.

And these accusers know it. So do the courts and social services, who need no reminding of obligations that can make front-page news. They have to make decisions in cases where the “facts” may not exist at all or can be swept away, if examined with greater care. But how many courts and local authorities have all the resources to do this? They struggle to do their best. And they are not helped by these types of cases.

Such cases remind me of the circumstances I came across when I became involved with Sally Clark’s case. Sally Clark finally walked free from court on her second appeal against convictions for murder of her two babies, three years after her original conviction. Because two babies died in her care, it was argued, they must have been murdered. And she must have done it. The jury and even the Court of Appeal agreed. Only after the most careful digging, to unearth what had really happened, did the truth come out.

And that’s the problem. When serious allegations are made against an innocent man, the tendency is to believe that “there is no smoke without fire”. His back is up against the wall. He can have the entire system ranged against him, as two of my clients did.

Thankfully in the Vicky Haigh case (and in my clients’ cases too), justice has ultimately been done. A wicked vendetta and a misguided campaign have been caught and stopped.

The price that may ultimately be paid, if social services and the courts relax their vigilance and get it wrong, is by a child or another parent. And how easy it is, to get it wrong.

UPDATE 05/09/2011: The judgments have been published in relation to Ms Haigh and Ms Watson. After applying to purge her contempt, Ms Watson has now been released from prison. Instead, a  two-year suspended sentence has been imposed by the court.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam) (22 August 2011)

and

Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam) (29 August 2011)

Image credit: Toulouse-Lautrec.

K v K

The case of K v K (children) (removal from jurisdiction) [2011] EWCA Civ 793 concerned a Canadian mother and a Polish father, both of whom lived in the UK. The couple had two daughters and shared residence.

The mother wished to return to Canada following the breakdown of the marriage, as she felt isolated and stressed  but on appeal, the father successfully overturned an order permitting the mother to relocate to Canada with their two children.

Lord Justice Thorpe stated that in K v K the case of Payne v Payne was not the correct test to apply when parents share the care of the children equally. He stated that a later case called Re Y (leave to remove from jurisdiction) [2004] 2 FLR 330 should be applied:

Since the judgment of Hedley J in Re Y there is clear authority that the Payne v Payne line is not to be applied in cases where the applicant shares the care of the children more or less equally with the respondent.

In K v K, the girls spent five nights with their father and nine nights with their mother every fortnight. However the father was released from work on Fridays and Mondays, so he had six consecutive days with them. The mother did not work on Wednesdays, so on that day and at weekends she was with the girls. The remainder of the time the girls spent with their nanny.

Although the mother spent more nights with the girls, they actually had more daylight hours with the father. Therefore there was “not only a shared residence order but also an arrangement for the sharing of care under which the father’s part is not inferior to the mother’s”.

Re Y

In the 2004 case of Re Y, the mother was American and the father was English. They had one child together. The family settled in Wales but, following the breakdown of the marriage, the mother felt increasingly isolated there and wanted to return with the child to America and be with her family.

In an informal arrangement, the child spent four nights a week with the mother and three nights a week with the father. The child’s home was equally with both parents and Mr Justice Hedley stated:

In those circumstances … many of the factors to which the court drew attention in Payne v Payne whilst relevant carry less weight than otherwise they commonly do.

Mr Justice Hedley adjourned the case into open court for various reasons, one of which was as follows:

This type of case of transnational marriage is and will continue to become increasingly common, and it seems to me that there should be public awareness of and discussion about the intractable problems that it can raise and the sad consequences it can ensue.

In Re Y, the mother’s application to remove the child was refused, and a shared residence order was made.

Another look at Payne v Payne

As discussed in my previous external relocation post, Payne v Payne evolved from another case, Poel v Poel, which was decided in the 1970s when custody was awarded jointly to both parents only in exceptional circumstances.

In K v K Lord Justice Thorpe had this to say about the two older cases:

The survival of Poel into this century, in my judgment depends crucially upon the primacy of the applicant’s care…Payne does not anywhere consider what should be the court’s approach to an application where there is no primary carer…Despite a considerable degree of criticism, the decision in Payne has been consistently applied over the last decade in cases in which the applicant is a primary carer.

Lord Justice Thorpe agreed with Mr Justice Hedley’s observation in Re Y, in that it is not the label of “shared residence” that is important, but the practical arrangements that are in place for “sharing the burden of care between two equally committed carers”.

He went on:

Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised. The judge should rather exercise his discretion and grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989.

Payne v Payne has been heavily criticised – not least by readers of this blog! – but it is apparent that when the care of the child is shared equally by both parents, Payne is not the correct approach to take. The fact that Lord Justice Thorpe was involved in both cases – Payne v Payne as well as K v K – provides a useful insight. He is clear that when care is shared equally by both parents, Payne v Payne should not be applied.

As ever, it is important to remember that in all cases involving children, the child’s welfare is of paramount consideration. In K v K, Lord Justice Moore-Bick stated that the only principle of law from which no departure is permitted is that the welfare of the child is paramount; everything else is guidance. Also in K v K, Lady Justice Black stated:

The only authentic principle that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with the view to measuring its impact on the child.”

Mr Justice Hedley made a similar finding in Re Y:

When everything has been said, done and considered the ultimate test remains the welfare of the child, which in the last analysis overbears all other considerations, however powerful and reasonable they may be.

Some thoughts

It is becoming more common for people from different countries to marry and unfortunately couples do not always “live happily ever after” together. However when there are children involved it is important to put their welfare first.

When one parent wishes to relocate to a different country there will never be a perfect solution. Whatever the outcome, one parent will more than likely feel that the wrong decision has been made. I think that Mr Justice Hedley summed it up very well when he said that in a case such as Re Y, putting the child’s welfare first inevitably means that one parent will be dealt “a crushing disappointment”.

However this is not a complete move away from Payne v Payne. It is important to point out that it seems that it is only departed from when the care of the children is shared more or less equally between the parents. The recent case of H (Children) [2011] EWCA Civ 529 did not allow the father’s appeal against the decision to allow the mother to relocate to Canada with the children. However in that case, the mother was the primary carer of the children rather than the care being shared equally.

In cases where the care is shared more or less equally, it seems that the court is following the decision in Re Y. In the recent case of C v D [2011] EWHC 335 (Fam) the mother made an application to move to America with the children, which the father opposed. The mother was not granted permission, based on the fact that the parents shared the care of the children; the regime they had worked well and was in the children’s best interests. They cared for them on a 20/10 split throughout the month (dividing term time so that 20 days were spent with the mother and 10 with the father), but the father made an application that the time be split equally between them. This application was refused as the court felt that the regime in place was in the children’s best interests.

As understandably difficult as it is for a parent who has had an application to remove a child refused, I agree that a child should not be taken to another country when their care is shared equally by both parents. One parent’s unhappiness, as a result of remaining in a country they no longer want to be in, may have some form of negative effect on the child. But what would the impact on that child be, if he or she went from seeing a parent every week for a significant amount of time, to only seeing them a handful of times a year?

Yes, children who are relocated overseas can still talk to their parents on the telephone and use video calling so that they can see each other, but even this is not without its difficulties when the child moves to a country with a big time difference. In my view, it is entirely appropriate that a different test is applied when dealing with cases in which the parents share the care equally, compared to those in which the non-resident parent has contact once or twice a fortnight.

Laura Guillon is a trainee solicitor at Stowe Family Law. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

Would legislation for shared parenting time help children?

This question is asked in the latest study published by the Department of Social Policy and Intervention at the University of Oxford.Its authors focus upon research in Australia, where changes to encourage shared care parenting were made in 2006.

Shared parenting arrangements, in which childcare is split 50:50 between parents, have become more popular in England and Wales in recent years. Even so, just three per cent of separated parents share the care of their children equally. Fathers’ groups have called for legislation to promote shared parenting in cases that go before the family courts.

However the University of Oxford’s researchers conclude that there is a need for caution. They highlight difficulties in Australia, suggesting that a presumption of shared parenting is not always in the child’s best interest, when the stress and burden of moving from one house to another outweigh the benefits.

There is strong evidence that “high ongoing post-separation conflict is damaging for children”, and “growing evidence that shared time arrangements involving ongoing high levels of parental conflict are more damaging than other parenting arrangements with entrenched high conflict”. A recent Australian study has indicated greater difficulties in attention, concentration and task completion for children in this group.

Another Australian study, quoted in the University of Oxford paper, has found that:

“Regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care of children under four years of age had an independent and deleterious impact.”

The Oxford researchers point out that, ironically, legislation promoting shared time is most likely to be directly applied where shared time is least likely to be beneficial for children.

In my experience, most parents are eventually able to reach an agreement between themselves, or with the assistance of a good mediator. Some cases do end up in the courtroom,however, and it is those cases where legislation is used to determine the arrangements. When parents end up in court, there is likely to be a high level of conflict between them, and it may be difficult for a shared care arrangement to work in practice.

This said, there are acknowledged flaws with the current system in England and Wales. These include the court backlog and the length of the court process. These can sometimes prevent a parent from seeing their child for weeks, if not months, through no fault of their own.

When a relationship ends and the parties have children, parents have the added stress and anxiety of dealing with arrangements for their children. They need to agree arrangementsfor contact,which allow both parents to play a full part in the child’s life. In some of the saddest cases, parents may use their child as a weapon to try and hurt the other parent, by not allowing that parent to see the child. This is often in the initial stages of separation,when emotions are running high and the parent is struggling to come to terms with the end of the relationship. They cannot, at that time, see the impact that their behaviour has on the child.

Although there are exceptions when a child may be at risk of significant harm from the other parent, in most cases it is wrong to prevent a parent and child from having contact. However I am not convinced that the solution is for the legislation in the mould of the Australian model, where the “presumption” or starting point is shared care parenting, with the child spending an equal amount of time with each parent.

Shared care arrangements on a 50:50 basis often mean that a child has to move between two residences, usually splitting the school week in half.  For such an arrangement to work successfully, the parents need to co-operate and communicate with each other. For this reason, such an arrangement is most likely to be successful where the arrangement is agreed between the parties without the intervention of the court. It will only work if the parents are child-focused and co-operative.

Although I believe that it is important for a child to spend time with both parents, I would argue that it is the quality of the time that is important, not the quantity. Under the Children Act 1989, the welfare of the child is the court’s paramount consideration when dealing with arrangements for residence and contact. The court is guided by the child’s welfare, rather than a presumption of the parent’s entitlement. It is my view that any legislation should be child-focused, not parent-focused.

Two Private Members’ Bills are currently before Parliament, tabled by Brian Binley MP in July 2010 and Charlie Elphicke MP in March 2011. Mr Elphicke’s Bill requires courts to operate under the presumption that the rights of a child include the right to grow up having contact with both parents. The purpose of Mr Binley’s Bill is to create a legal presumption that shared parenting orders enhance a child’s welfare, unless certain exceptions apply.

I agree that it is important for a child to spend time with both parents,who should consult one another about all major decisions in a child’s life. But isn’t this already provided for under the Children Act 1989, with both parents having “parental responsibility”?  Both parents should be present at parents’ evening, school plays and so on. They should both be able to spend quality time with their child.

My concern is that if a child is ordered to spend an equal amount of time with each parent, irrespective of the circumstances in most cases, that is not “shared parenting”at its best. Rather, it is treating the child as a possession and dividing him or her in two.

Mr Binley’s Bill is to have its second reading in House of Commons on 17 June 2011, and I shall be interested to see if the University of Oxford’s study provides Parliament with any food for thought.

Kelly Briggs is a solicitor at Stowe Family Law’s Hale office. A Resolution Accredited Specialist in Advanced Financial Provision and Domestic Abuse, she specialises in all areas of family law including divorce and resolution of financial issues. Kelly has experience of high net worth cases and also deals with issues involving children, including contact and residence disputes.

Looking back, I’m sure it was not my father’s idea of an ideal situation. However both of my parents made it work and now, even in my 20s, I still speak to both parents on a daily basis. In the cases where relocation is permitted, it will always be hard for the parent left behind. However it is possible to maintain a good relationship, and I know this from personal experience.

In this post I’m going to look at the relocation of children within the UK. The tests that are applied are quite different to the tests that are applied when a parent wishes to move, with a child, to another country. What both sets of tests share is that the child’s welfare is considered paramount.

The test of exceptionality

The test for whether to allow an application to relocate within the UK is the test of exceptionality. It  was created by the case of Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638, which was the first reported decision of the Court of Appeal in relation to the relocation of a child within the UK.

In this case the mother was granted residence of the children, but with the condition that they reside at a named address unless otherwise ordered or agreed by the father. The mother appealed this on the basis that if a residence order was granted in her favour, there should be no imposition upon her right to choose where she and the children should live within the UK.

Lady Justice Butler-Sloss agreed with this in her judgment allowing the appeal, but stated that “there may be exceptional cases” in which the court may have concerns about whether the parent is a satisfactory carer for the child, but there is no better solution than to place the child with that parent. In cases such as these the court may consider it necessary to place certain conditions over the parent, including a condition of residence, in order to keep some control over the parent. In that short phrase, to use Lord Justice Wilson’s words, “thus were the seeds of a new test sown”.

The case of Re S (A Child) (Residence Order: Condition) [2001] EWCA Civ 847 examined the test of exceptionality. Lord Justice Thorpe stated that Lady Justice Butler-Sloss was simply trying to safeguard against never saying never in family litigation, but that imposing restrictions on the primary carer regarding where they should live was only in “highly exceptional” cases. Lord Justice Clarke affirmed this, stating that “a condition should only be imposed in genuinely exceptional cases”.

The problem is that “exceptional” cases are not defined. In Re E, Lady Justice Butler-Sloss gives an example of what she would consider an “exceptional” case, but there is no definitive list or guidance. In Re S the Court ordered, “with considerable regret”, that the appeal be allowed and to remit the case for reconsideration by the county court.

This case was then further appealed in Re S (A Child) (Residence Order: Condition) (No 2) [2002] EWCA Civ 1795. By this time exceptionality had become part of the principle. Lady Justice Butler-Sloss made reference to “the principle enunciated in Re E … that the court ought not in other than exceptional circumstances to impose a condition on a residence order to a primary carer who is providing entirely appropriate care for the child.”

In that instance the appeal was dismissed. The mother was bound to the order, which placed restrictions over her right to relocate within the UK, stating that she must remain in the Croydon area. The test of exceptionality was further examined in this judgment. Lady Justice Butler-Sloss referred to her judgment in Re E:

I did not intend in my judgment in re E to exclude the possibility that an exceptional case might arise in which a parent against whom there is no complaint might nonetheless have to face some restriction of movement.

She describes section 11(7) of the Children Act 1989 as a “safety net” that the court may use in exceptional circumstances to impose restrictions on the primary carer of the child, when the paramount status of the child’s welfare requires them to do so.

Criticism

The recent case of Re F (Internal Relocation) [2010] EWCA Civ 1428 criticises the test of exceptionality. This case concerned a mother who wished to relocate with her new husband and four children to the Orkneys. She was a GP, as was her husband who had strong family links to the island, and they had accepted a job share there. The mother had applied for a specific issue order allowing her to move with the four children from their home in North East England. The father opposed the application. In the first instance the application was refused and the mother subsequently appealed this decision.

In his judgment, Lord Justice Wilson referred to the Children Act 1989 and made his feelings about the test of exceptionality very clear:

It is too late for it to be permissible for this court to rule that, in internal relocation cases, the analysis of the child’s welfare, informed by consideration of the matters specified in section 1(3) of the Act, should not be conducted through the prism of whether the circumstances are exceptional.  The recorder thus rightly asked himself whether the circumstances were exceptional; his answer was that they were; and the main thrust of the appeal is that he was plainly wrong so to have concluded.  But, for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the Act.

Lord Justice Wilson dismissed the appeal, because the children’s welfare required it: some of them had expressed strong views about not wanting to move. In doing so he was ruling that the previous judge had not made any error in his judgment. Lord Justice Wilson reluctantly concluded that in reaching this conclusion the case was deemed exceptional, but said that he did not agree with the case being interpreted as such.

This, for now, is the test that we have. It is hoped that eventually there will be some consistency between the rules applied to internal and external relocation. Why should a case have to be “exceptional” to place restrictions on where a parent should live if they wish to relocate within the UK, when there is no such need if the parent wishes to move to a different country?

In cases involving relocation there will always be a party that is left feeling unhappy but I do not think it is right that some of these cases have been labelled as exceptional. To me it seems quite normal that when one parent wants to relocate, the other parent is opposed to it because they do not want to lose that contact with their children. If the test of exceptionality is to remain then, to my mind, it is imperative that some clearer guidance is given as to what an “exceptional case” amounts to.

Laura Guillon is a trainee solicitor at Stowe Family Law. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

If a relationship breaks down and there are children involved, what rules are applied to cases when one parent wishes to move with the children to another country? In this post, we will be looking at the rules – and how they could change in the future.

External relocation is a difficult subject, and lawyers appear to be particularly exercised by it at present. Here, however, I would like to examine external relocation for the benefit of non-lawyers. It is hard enough when a relationship breaks down, let alone when the child is then going to move hundreds, potentially thousands, of miles away from one parent.

This is a lengthy post, examining the older and more recent judgments that have shaped the rules. When one parent wishes to relocate to another country with the children and the other parent opposes that, there is no perfect answer for what should be done.

The test in Payne v Payne

The case of Payne v Payne (2001) lays down the test for the right to remove a child from the jurisdiction. In Payne v Payne, the mother was from New Zealand and the father was from the UK. There was a residence order in favour of the mother and she took her child from the UK back to New Zealand when the relationship broke down. The father brought proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother had to return to the UK and applied for leave to remove the child permanently. She was successful in her application.

The father appealed this decision, stating that by allowing the mother to relocate to New Zealand with the child, a presumption had been created in favour of that parent. This, he argued, was a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and was also in conflict with the Children Act 1989.

In cases involving children, the child’s best interest and welfare are always of paramount consideration and a judge should not make any decision unless it is in the child’s best interest. In his judgment in Payne v Payne, Lord Justice Thorpe gives very clear guidance on what considerations the judge should have in mind when deciding whether a parent wishing to relocate with the child should be granted leave to do so:

(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

He then goes on to state that he does not wish to diminish the importance attached to the emotional and psychological wellbeing of the child’s primary carer, but that great weight must be given to this consideration when evaluating the child’s welfare.

The principle that the primary carer’s emotional and psychological wellbeing are important factors when determining such cases came to the forefront in a 41-yearold case: Poel v Poel [1970] 1 WLR 1469. This was another case in which the mother wished to relocate to New Zealand with her child. In that case, the court held that once the child’s living situation had been established, the court “should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has rightly been given”.

His Honour Judge Langham, who heard Payne v Payne in the county court, states:

The effect on the mother of being forced to stay in England would, in my judgment, be devastating. Having read and (at length) heard her evidence, I have no doubt that her unhappiness, sense of isolation and depression would be exacerbated to a degree which could well be damaging to [the couple’s daughter].

He went on to say that the child’s welfare was of paramount consideration and her future happiness would be best assured by being brought up in a place in which the mother was not merely content, but happy – and this would be in New Zealand. He had made an order permitting the mother to relocate with the child.

However Lord Justice Thorpe, handing down the Court of Appeal’s judgment in Payne v Payne, takes care to state that while great weight should be attached to the primary carer’s emotional and psychological well-being, it should not be elevated into any kind of legal presumption. The judge’s primary task is always to evaluate and uphold the child’s welfare as the paramount consideration – and the inevitable conflict with the adult’s rights is secondary. Under the Human Rights Act 1998 a person has a right to family life; when a child relocates to another country with the relocating parent, the non-relocating parent will lose some of that right, but the first consideration is always the child’s welfare.

In Payne v Payne, Dame Elizabeth Butler-Sloss has also given a very clear judgment of the points that should be considered in such cases. She states:

(a) The welfare of the child is always paramount.

(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.

(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

Of course, all of these points are only relevant when there is no issue regarding who is the resident parent. So if one parent has applied for a residence order, this issue must be dealt with before the issue of relocation can be determined.

Criticism of Payne v Payne

Payne v Payne has attracted criticism. It is only 10 years old, but detractors have described it as outdated, arguing that it does not promote co-parenting because it places too much emphasis on the effect on the primary carer if leave to remove the child is refused.

Shared residence orders were not commonplace when Payne v Payne was decided, but have become more common in recent times. The rule in that case was predicated upon a status of sole residence and sole primary carer.

Why Payne v Payne remains the correct test, for now

Re W (Children) [2011] EWCA Civ 345 is a recent case. A mother wished to relocate to Australia with her son and daughter, and the father opposed the application. This case affirmed that Payne v Payne is the correct approach when dealing with external relocation cases. In the first instance the mother’s application was refused, but this was overturned on appeal. It was held that the judge had erred in law by not attaching enough weight to the effect that it would have on the mother if the application was refused.

In the judgment, Sir Nicholas Wall states:

I do not propose to embark upon my own assessment of the criteria to be taken into account when deciding a relocation application. All that I am prepared to state at this stage is that the decision falls to be taken on what the court perceives to be in the best interests of the children concerned. Their welfare is our paramount consideration. The court must apply the criteria and guidance set out in Payne v Payne.

Sir Nicholas Wall has also added an important postscript to his judgment. Last year he criticised Payne v Payne in a case called Re D, in which he stated:

There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.

In Re W, Sir Nicholas Wall expresses his fear that too much weight may have been given to his words. Criticised by Lord Justice Wilson in a case called Re H (A Child) [2010] EWCA Civ 915 for his use of the word “ignores”, he has retracted it. He recognises that until further research is done or Parliament imposes a different test to the paramountcy of the child’s welfare, external relocation cases will remain to be governed by Payne v Payne.

The Washington Declaration on International Family Relocation

In March 2010 more than 50 judges and other experts from 14 different countries met in Washington DC to discuss cross-border family relocation. Their primary objective was to establish whether it was possible to find a common ground between judges from different jurisdictions as to the criteria that should be applied when resolving cases of relocation. They hoped to “promote a more uniform approach internationally”.

The judges and experts agreed that in all applications for international relocation, the best interests of the child should be of paramount consideration. Therefore, there should be no presumption for or against relocation when the applications are made. They provided a list of 13 factors to be used to guide judges when exercising their judicial discretion in such cases. They are as follows:

1. The right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest.
2. The views of the child having regard to the child’s age and maturity.
3. The parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment.
4. Where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation.
5. Any history of family violence or abuse, whether physical or psychological.
6. The history of the family and particularly the continuity and quality of past and current care and contact arrangements.
7. Pre-existing custody and access determination.
8. The impact of the grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties.
9. The nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation.
10. Whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden of the child.
11. The enforceability of contact provisions ordered as a condition of relocation in the State of destination.
12. Issues of mobility for family members
13. Any other circumstances deemed to be relevant by the judge.

As you will have noted, Number 8 states that the impact of grant or refusal on the parties is to be considered as well as the impact on the child. Perhaps this demonstrates that the test of Payne v Payne is not as outdated as some would think. The factors in the Washington Declaration are not listed in any order of priority and it is not specifically stated that a great weight should be attached to the impact that refusal would have on the relocating parent. However this seems to be a more balanced guidance, in that the effect on the parties should be considered, albeit with the child’s best interest remaining paramount.

In cases of international relocation there will always be a level of fall out. A parent-child relationship can be maintained even when the parent and child do not physically see one another as often as they would like to, but very few parents are going to be happy if their child is moved to another country and the amount of contact is reduced.

Coming next: internal relocation. What happens when a parent wishes to move somewhere else in the UK?

Laura Guillon is a trainee solicitor at Stowe Family Law. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

UPDATE: It has been an interesting – and lengthy! – debate, but I feel that it has run its course and comments on this post are now closed.

The book’s full title is Glorious Grandparenting: Having the Time of Your Life with Your Grandchildren. Gloria, a grandparent of nine, decided to write it as a “celebration of what it is to be a grandparent today”.

However the book also features grandparents who have become separated from their grandchildren and examines the controversial lack of rights for grandparents. Gloria Hunniford’s publishers contacted me earlier this year, after I advised Coronation Street producers on a complicated storyline that brought grandparents’ legal rights (or lack of) to the fore.

Six years ago Gloria Hunniford’s only daughter, TV presenter Caron Keating, died aged 41 from breast cancer, leaving behind two sons. Gloria continues to enjoy a strong relationship with her son-in-law and grandsons, but her attendance at a Downing Street reception for The Grandparents’ Association afforded her a “tiny glimpse” into how life might be for grandparents who lose touch with their grandchildren.

In her book, I outline the legal rights of grandparents, offer advice and highlight some of the changes within the law that I would like to see made following the introduction of the Childhood and Families Ministerial Task Force in June 2010. (I have also detailed these proposed changes in an earlier post, We must help the grandparents hit by divorce).

After making promising noises earlier in the year, our government has gone quiet on this subject of late. I am pleased that Gloria Hunniford, who has been appointed an ambassador of The Grandparents’ Association, is drawing upon her profile and working hard to keep grandparents’ rights on the agenda.

Glorious Grandparenting (Vermilion, £16.99) is currently available from bookshops and Amazon. A paperback edition is planned for Spring 2011.

You can read the full text of Mr Justice Coleridge’s speech here. It has gained surprisingly little coverage in the mainstream press, but I believe that some of my readers will find it very interesting. However it is lengthy!

To summarise, in the words of The Times: he argues that judges are “giving the ‘sacred cow’ of children’s views too much uncritical weight… This ‘flabby’ judicial approach has led to people not taking family judges seriously and flouting their orders… Court orders over contact with children must be enforced swiftly and rigorously”. The post on Family Lore refers to what he describes as “the unintended slippage in the authority of the family court which has been creeping in and gathering momentum over the last decades and which we can no longer afford to ignore”.

I must admit that the tone of his speech did jar a little for me as well. I thought it was unnecessary for a senior judge delivering a serious speech about the approach commonly taken by judges in children cases to be so overly modest. As I was whiling away time on the Wattbike this weekend, and with these issues in mind, my thoughts drifted to some wider comparisons in the news. As a society, why are we failing so dismally to respect authority?

Right now, the mighty USA is having its state secrets mercilessly exposed by Julian Assange and those who work with him on the Wikileaks site. I deliberately did not read any of the diplomatic cables that have been released on the site, because I don’t have the right to read what was clearly not meant for me or anyone else for that matter, bar the US government. I respect the right – and need – of the US Government to keep confidential communications confidential. Correspondence from the most senior lawyers in the US Government addressed jointly to him and his legal representatives fell on deaf ears and Mr Assange published the documents.

He hasn’t however threatened to publish the state secrets of Russia, China or Iran. I suspect that if he did so he might not survive long enough to press the button and upload those files. Perhaps the USA is seen as “low hanging fruit”; in the eyes of the world it has weak, conciliatory leadership, so why not take the chance to publish and be damned?

The lack of respect for authority, discipline and the rule of law, dressed up by him and his supporters with high-minded excuses (for that is all they are) is an example of conduct which, I believe, equally extends all the way down the scale into our own little worlds. I‘m thinking in particular of family law cases and whether in the breathtaking perjury and thereafter deliberate non-payment of a colossal court order (as we saw in my last post), or disobeying a family contact order, the risks are considered so low level they are worth taking. In contact disputes especially, hours of court time are squandered, thousands are spent in legal fees and months are spent waiting for fresh hearings. The couple leave the court no closer to closure, not because there isn’t a court order in place, but because one or both of the parties won’t obey it – safe in the knowledge that the court won’t do anything about it.

Let me quickly add a caveat. Firmness and continuity of approach doesn’t guarantee a result either – but at least it lets everyone know where you stand.

Mr Justice Coleridge is now saying the judiciary needs to strongly reassert itself to overcome the lack of respect and perception of weakness that many have when appearing before the courts. Overall he wants to get authority back into the family courts and have court orders obeyed.

I couldn’t agree more. It’s high time for an end to the “touchy feely” approach around children. Instead it’s time for some “tough love”, by not only shining a spotlight upon the child but looking firmly at the parents too. Why should we not have an approach where all the family – parents and children – know that a judge will consider the entire family, and furthermore, that a judge’s court order must be obeyed?

The drawbacks of course are obvious at first sight. Not every judge is as fair minded and perceptive as Mr Justice Coleridge, and tough love doesn’t mean bullying by an unsophisticated judge. Also if a parent doesn’t obey, then who ultimately bears the consequences? It is the child at the centre of the case. Again, the lack of continuity by judges in given cases and the little court hearing time available are additional problems. Overall I don’t think it would harm the entire family to understand and accept discipline and the rule of law, and if not, for there to be a change of residence from one parent to another.

Currently intractable contact cases are incredibly frustrating for family solicitors, who may be landed with the most difficult of clients to represent as well. This client may on the surface present as a “victim” who is simply acting in the best interests of the child, but underneath there is every chance the client is exacting a deadly control over the entire family and may be taking revenge for the original family unit falling apart. It takes a skilled eye indeed to spot this type of client and understand the real agenda. Most lawyers take their clients entirely at face value and accept their instructions.

Such a client is unlikely to listen to pragmatic advice and is actually content to litigate, bemoaning the “system” in which the child is now caught up, despite it not being the real cause of the problems. At present the system is so children-focused that a parent can easily and safely play games through their child, only indirectly attracting attention. This regime allows the parent to get away with it and prolongs the dispute even further.

All the available solutions, such as one hour per week supervised meetings by the other parent (who is often stacked up with blame by the “victim” parent) in unfamiliar contact centres, are artificial and ultimately useless. They help no-one. Neither the parent desperate to see and establish a relationship with a child in a familiar setting, nor the child who cannot possibly have the feeling of normality that is vital to flourish. In such circumstances what is required, both by selfish parents and bewildered children who find themselves expressing different opinions to their parents and the judge, is discipline.

It is time to bring the parents out of the shadows, imbue them with a sense of discipline, treat them firmly and fairly, and renew in them a sense of respect for the authority of the court and for their family.

As you’d expect these types of cases are extremely complex and often charged with raw emotion. As Marilyn’s post emphasises, there are a number of difficulties and complications that removal from jurisdiction presents.

If it is established, either by agreement or by court order, that it would be in the children’s best interests to move abroad then there obviously have to be arrangements in place for them to continue their relationship with the parent that is left behind. After all, it is a vital right of any child to have a relationship with both their parents.

But what happens if the arrangements turn sour? Which country’s judiciary makes the decision as to what should happen next?

The question of jurisdiction

The question of jurisdiction in international children law is one of the most crucial, and the outcome of a case can hinge on where it is heard. Both parents will want their case to be heard in the country in which they reside, regardless of whether it is fair on the other parent or not.

These fundamental issues formed the basis of the recent case AP v TD (2010 EWHC 2040). It involved two children aged five and eight-years-old. In October 2008, after full consideration as to the best interests of the children, the father reluctantly agreed to let the mother move to Canada with them.

The agreement was subject to certain conditions, namely that there would be weekly webcam and unlimited telephone contact, that the mother would provide the father with all of the relevant contact details for any schools, nurseries, GPs and hospital consultants caring for the children, and that the children’s names would not change. It was also agreed that any future disputes over contact should be resolved in the UK and that the mother would return here for any such hearings. Furthermore, it was ordered that if the mother was ever unable to care for the children they would be returned to the UK to live with their father. Holiday and staying contact between the children and the father was also determined.

Unfortunately the arrangements were not adhered to once the children moved to Canada, with each parent blaming the other for various reasons.

The mother then unilaterally, and without notice to the father, applied in the Canadian courts to vary the contact arrangements and successfully obtained an order. The father, somewhat understandably, felt what had happened to be unfair and subsequently applied to an English court for the original order to be enforced. The father also asked the court to order the return of the children to England and for a Residence Order to be granted in his favour due to their mother’s obstructive actions.

Brussels II and settling jurisdiction

The judgment was handed down by Mrs Justice Parker in the High Court and determined which country’s judiciary should decide the outstanding issues. In reaching a decision the judgement looked at a European regulation commonly referred to as Brussels II, and the legislation in England and Wales regarding family cases and jurisdiction.

Article 8 of Brussels II permits a court to deal with a case if the children live in the same country. However, Article 9 of the same regulation allows for the original court (being the English court in this case) to hear an application within three months of the children relocating. It seemed on the face of it that the Canadian court had jurisdiction and could rightly issue a new court order.

However, it gets more complicated. Article 12 of the same regulation states that “if the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner at the time it is first seised” and that if the jurisdiction of that court “is in the best interest of the child” then it should hear the case.

It was considered that the mother had in fact accepted that the English courts had jurisdiction when she agreed to the original order. Mrs Justice Parker stated that “both parents unequivocally and expressly accepted the jurisdiction of the court in respect of contact when the orders of the District Judge were made. They unequivocally accepted that it should endure”. Amongst other things, this was illustrated by the provision that any future disputes over contact should be resolved in the UK and that the mother would agree to return to the UK for any such hearings.

The judge also stated that once the jurisdiction “has been established under Article12 (3), it cannot be terminated by the decision of another country”. The judgment went on to say that the mother could not withdraw her acceptance that the English court has jurisdiction, simply by virtue of the fact that she had issued fresh proceedings in another country. And fundamentally, the judge felt that hearing the case regarding contact in an English court was in the children’s best interests.

The court then turned to the father’s requests that the children be returned to the UK and live with him. The court interpreted the Children Act 1989 at section 10(i)(b) to mean that if the court has the power to determine issues of contact, then it would also have jurisdiction to determine other issues regarding parental responsibility – including residence. Despite that, the father had not made a formal application for residence and so the issue could not be determined until he had. On that basis, and although it may have been in the best interests of the children to determine this issue in England now, it was decided that may not be the case in the future. It was considered that this was something they would have to return to if the father made an application.

All is not lost

Popular conception seems to suggest that these cases must be heard in the country in which the children concerned live. This case is an example that, if circumstances permit, a case can be heard in the country which was left behind. This is certainly important news for any parent who is striving to maintain a relationship with children who live abroad.

I would advise that any parent left behind should revaluate the situation if they feel that their children are slowly slipping away from them. It may be that something can be done to improve it. Parents who face these challenges should seek advice to see whether their case could be heard in the UK. All is certainly not lost if your children move abroad.

A University of Sheffield graduate in European, International and Comparative Law, Jennifer spent a period of time studying Finnish law at the University of Helsinki in Finland while completing her degree. She joined Stowe Family Law in July 2008 as a trainee solicitor. Now qualified, Jennifer plays a vital role in the children law and domestic violence department, assisting Head of Department Stephen Hopwood.

Lord Justice Wall dwelt upon the state of current law, the approach of the judiciary to such case and in particular, the case of Payne v Payne (2001). The full text is here. Payne v Payne, in which permission was given for a divorced mother to move back to New Zealand with her daughter, against the wishes of the young girl’s father, is regarded as the leading case on the subject.

As he pointed out, the Payne v Payne decision takes into account as an important factor the potential harm that could have been caused to the mother if leave to remove the child had been refused, and the consequential impact on the child in determining the test of the interests of the child’s welfare:

The mother’s reasons for her desire to return to New Zealand were appropriate and entirely understandable. Her situation in England was not a happy one. The judge found that the effect of her being forced to stay in England would be devastating. He found that her unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child. The father who has had a close relationship with his daughter would be able to afford to visit her or have her visit him two or three times a year which mitigated the loss to the child and to him. (Payne v Payne [2001] EWCA Civ 166.)

Not surprisingly, critics take the view that this is incorrect and that children’s interests are better served if they have two parents to raise them.

As family lawyers, we urge our clients to put their children’s welfare above all else – and that is as it should be. However I would like to take a look at the parents’ welfare – which is not so much displaced at present, as utterly ignored. Instead the parents’ welfare is considered indirectly, and the impact assessed on the child or children. This in itself is difficult to do: experts agree that the impact of relocation and the resiliency of a child to adjust to relocation is difficult to ascertain, and I would assume that it depends greatly on each child and his or her circumstances.

An application for leave to remove

When an application for leave to remove a child is made, the court must decide which option is in the best interests of the child, on the basis that the child’s welfare is paramount. There is a welfare checklist, which the judge must take into account. The approach of the court in giving appropriate weight to each of the criteria is critical. Thus, if one parent can no longer play an active part in a child’s life by virtue of distance, the court needs to attach weight to it. But how much weight? Is the presence of two parents playing a constant role in a child’s life, of such paramount importance that it outweighs every other factor?

And so the question can simply become:  “Should a child ever be permitted to leave the jurisdiction at all, if he or she thereby loses an enduring relationship with one parent?”

In Payne v Payne, the court decided that the arrangements for contact with the father were satisfactory and ordered, in accordance with section 13 of the Children Act 1989, the removal of the four-year-old child to New Zealand to live with her mother. The court found there was no breach of human rights legislation as a consequence.

The case of Re H (2010)

In one recent case, heard by the Court of Appeal on 20 May 2010, permission was similarly given for a mother to relocate to Australia with a child. The desperate father appealed to the Court of Appeal on the basis that the original judgment was only four pages long. He argued that the judge failed to fulfil the minimum requirement of providing explanations to the parents, covering all the section 13 considerations and the weight that had been attached to each.

The Court of Appeal dismissed his appeal. It held that the judge was not obliged to go through the checklist, each in turn.

It should be noted that not all applications for leave to remove a child are granted. In another recent case, applying the same factors, the swashbuckling Mr Justice Mostyn refused to permit the relocation of a French mother and her child to France – but am I alone in thinking that he could have been powerfully affected in his decision because he is a father himself?

What about the parents’ needs?

From my perspective as a parent, losing a child halfway round the world must be the equivalent of a lifelong dagger in the heart. The carefully built nest is tipped upside down and is left starkly empty. There is little prospect of it ever again being filled with the laughter and tears of a child.  The parents undertook to raise the child together, but instead the child will grow up far away, with only one parent instead of two.

Can that ever be in the best interests of a child? Is it in the interests of both parents? Can it really be said that the interests of a child are not taking precedence to the interests of the parent who is moving away?

The answer that most of us would give to that last question is probably “no”. Sir Bob Geldof and his band of followers are calling vocally for a change to the law which they describe as “state sanctioned kidnap”. They call as parents, anxious to protect themselves from being deprived of the right to be parents.

Payne v Payne revisited

Then I wonder: from another perspective, is Payne really so wrong?

This blog is read by many desperate Englishwomen (and men) living around the world. They contact me and keep in touch because I am an English lawyer who may be able to offer them some assistance out of their misery. I have read heartbreaking stories of the circumstances in which they have found themselves. They fell in love, married and ended up living abroad, following their spouse’s career, nationality or simply the offer of a new life in a new country. Caught up in their hopes and dreams, they never gave a thought to what might happen if the marriage ended.

I am often contacted after a marriage has broken down and a mother finds that she is unable to return to her homeland with the children, because her husband refuses and she can’t leave their current home without a court’s consent. It is often near on impossible because elsewhere in the world, many courts point blank refuse permission for “their” children to leave the jurisdiction.

So these mothers are forced to stay, often without spousal support forced to live without a partner in a hostile environment. Living in misery, they suffer acute emotional and financial harm. Can that also be in the best interests of their children?

Should they and their children be obliged to continue to live in such circumstances? These women left the UK in ignorance of a future legal position that they had no idea could or would ever apply to them. But it does, and increasingly so. (As an aside, the number of child abductions from one country to another is growing and this, I believe, is why.)

So I can see both sides of the coin, having heard from various parents who have been caught up in this agonising dilemma.

Where do we go from here?

Perhaps a more pragmatic, conciliatory view is one way forward. For example, Stowe Family Law’s International Department recently had a case in which a child went to live with our client in a faraway country. There had been bitter battles, but I am pleased to say that following careful discussions and a hearing in a local English court, the  situation was resolved. (Earlier this year the case of AP v TD (2010) was also heard in an English court. This case concerned a mother who had relocated to Canada with two children. She had applied to the Canadian court in a bid to alter contact arrangements with the children’s English father, but the case was heard in England.) Even the most intractable disputes, involving great distances and time zones, are capable of settling.

In the meantime, what of these “difficult” cases? Should we condemn a parent to lead a life of misery in a foreign country, or give up any prospects of happiness altogether following the breakdown of a marriage?

The approach in Payne is now under attack from campaign groups and high profile individuals. As with so much in family law, however, there is no perfect solution.

At present, those who have to judge these cases shine a spotlight upon the child, working through the welfare checklist and examining each parent’s ability to meet the child’s needs. But if a child’s happiness is entwined with that of its parents, as the judgment in Payne v Payne would have it, wouldn’t everyone benefit if the family’s needs were given more prominence than they are currently? Perhaps it is time to bring the parents out of the shadows.