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.

Cafcass

Its role in private children law is to:

• Safeguard and promote the welfare of children.
• Help the courts in coming to an arrangement that would suit the child involved
• Investigate all welfare concerns and/or any wishes and feelings of a child of sufficient age.
• Provide the Court with a report of its investigations, including a recommendation.
• Help appoint a children’s guardian in cases where the children need to have their own voices.
• In some cases, help provide families with supervised contact.

Private children law proceedings are extremely emotional and traumatic experiences for families. A child’s welfare, best interests, wishes and feelings are central to children law. It is sometimes difficult, therefore, for a court to make a decision as to where a child should live and how much contact they should have with the non-resident parent without first investigating the child’s circumstances. This is where Cafcass comes in.

As a Cafcass volunteer, I used to supervise contact at a contact centre in Sheffield once every four to six weeks at weekends. I saw many families that had been subjected to the court system. I saw some cases where supervised contact worked really well, especially for the younger children. Parents and grandparents would bring age appropriate presents for children or grandchildren. These families would then move on to manage their own, unsupervised contact without the aid of Cafcass or the court system. Success.

However, the other side of the coin featured families whose behaviour prompted obvious and continuing welfare concerns. In some cases, contact had to be stopped. On more than one occasion I had to report a parent for saying things to their children such as, “Daddy does not want to see you because he cannot be bothered with you anymore. He is too occupied with his new child and does not want you anymore”. It was heartbreaking to see the child’s face when they thought that Daddy no longer wanted them. I could see that Cafcass was much needed in these cases as the courts could not see what happened behind the scenes. These experiences inspired me to pursue a career in children and family law.

In my opinion, Cafcass is a necessary element in children law. Its employees are viewed as experts in child services and their values support a child-focused organisation that promotes equality, honesty, openness and realism. So I have found it disturbing to read some of the recent news about Cafcass.

Since the case of Baby P hit the media, the number of care cases in the public law sphere has rocketed. This rise has placed Cafcass and other child services under pressure, because of the increased caseloads. These pressures have also affected the private sphere, with delays lengthening. At present it can be as long as four or five months before a Cafcass report can be provided to the Court. This is not good enough. Even the Children Act states that delay in determining the questions about a child’s upbringing is “likely to prejudice the welfare of the child”. The delays are unnecessary and also prolong parents’ agony.

The stretching of Cafcass’ time and resources has led to failings in certain areas around the county. Ofsted has this year reported that in Durham and Tees Valley, Birmingham and Black Country and in North Yorkshire and Humberside, Cafcass’ service is inadequate. In North Yorkshire, recent experiences have left me wondering about Cafcass’ condition. Here, the organisation is attempting to cope with an overload of cases, limited and restricted funding and an increased drain on resources.

Cafcass must also contend with a shortage of qualified guardians, a shortage of general staff and considerable problems when allocating cases. It has been reported that in London, Cafcass cannot afford to pay its self-employed guardians for the rest of the year.

So what happens now – and can anything be done?

During my time as a volunteer, I noticed that there were weekends when a family had been allocated a slot for supervised contact – and nobody would turn up. Such absences cause unnecessary delays to other families who are waiting for places and for parents who have earlier been denied contact without good reason. No-show families should bear these consequences in mind.

Earlier this year Sir Mark Potter, the President of the Family Division, stated that he views part of the problem to be due to many judges’ surfeit of enthusiasm. Rather than ask focused questions before continuing with a case, they have been requesting full reports.

It has been noted that Cafcass is now working with senior judges to cut the time and drain on resources, by requesting shorter reports for those cases in which welfare is not a problem and concentrating on the case’s specific issues. Judges should dispense with all reports if it is not necessary to request one.

It is my belief that this situation must improve so that children agencies such as Cafcass can provide the job that they set out to do. Until this happens, Cafcass is stuck between a rock and a hard place, trying to provide the best service possible for children but not being able to because of the drain on the system. For further information on Cafcass, please see its website.

Children lawyers: urge parents to be amicable and to settle their children disputes out of court if they can. This would help in reducing delay for those cases where child welfare is a real and proper concern.

My legal mentor Stephen Hopwood, Head of the Children’s Department at Stowe Family Law, advises that it is not usually the separation of their parents that adversely affects children. It is the fact that their parents cannot make decisions for them as to what is in their best interests that leaves the children floundering, not understanding what is happening to them. It is therefore very important for parents to try to find avenues in order to agree on their disputes for the sake of their children.

At Stowe Family Law we are finding that, increasingly, our Children’s Department is negotiating agreements based on our own Stowe Family Law parenting plan. In such cases, parents sit down and try to reach agreement about the issues at stake, for example determining in advance the times that each parent will spend with the children. Such measures can help to avoid arguments in the future. I will say that we are certainly not afraid to give firm, practical and pragmatic advice to our clients. Fortunately most parents appreciate that the welfare of their children is paramount, and that children should never be used as tools to “get at” the other side.

Trainee solicitor Jennifer Hollyer joined Stowe Family Law LLP in 2008.

Family image credit: pdam2.

It is tragic when a family breaks up and children are left in the middle between parents – but never more so than when the parents become so bitter towards each other, they are unable to work together for the sake of the children.  Relationship breakdowns are rarely neat and are never free of heartache.

Parents suffer when they lose that precious day-to-day experience of living with their children.  I have lost count of the number of times a parent has come to see us in tears because they no longer see their child every day or because they perceive the other parent as experiencing more of the joys of parenthood than them.  Sadly, the inevitable consequence of living in two households is that even if there is an equal division of time, one parent is bound to miss out on something.

Unfortunately it can be difficult for people to extract their emotions from important decisions regarding their child. Recently I was involved in a case where the parties were so wrapped up in their personal disputes, they forgot to put their children first.

This couple had parted ways when Dad met someone else and moved out of the family home.  The couple had eight-year-old twins who thought the world of both their parents.  Both Mum and Dad loved their children dearly, and were more than capable of providing for them.  However Mum had never forgiven Dad for leaving, had railed in court about Dad’s inadequacies and had long maintained that his girlfriend was an unsuitable role-model for her children.

When Dad announced that he was marrying that girlfriend, he asked his twins to be bridesmaid and page boy, and the children were over the moon. Then Mum discovered that the wedding was not set for a day on which Dad had contact. She used the opportunity to insist that she should have the twins on Christmas Eve (this being Dad’s year).  Dad was distraught.  He had been put in the difficult position of having to choose between his wedding and Christmas.  He felt that he was being blackmailed; Mum believed that she was being asked to give up more and more time with her children without any recompense or thought for her.

It is easy for parents to lose sight of their long-term objectives if they get bogged down in day-to-day emotion, particularly if they are faced with a situation that they feel they must “win” at all costs.

One of the most common traps parents tend to fall into is to use their children as emotional crutches: a child won’t leave them like their partner has and the temptation is to cling ever tighter to a child to the extent that the other parent is pushed out of the new tighter family unit.

In other cases, problems can arise when parents give in to the temptation to pour their souls out to their children.  Why should a child continue to think that an absent parent is perfect, when the other parent knows better?  Sadly this poisoning of the children will only hurt them in the long run. A child with torn loyalties to parents can grow up to become scarred and confused.  Children are desperate for their parents’ good opinion and will often tell then what they want to hear, which only compounds the problem.

Inevitably matters are complicated yet further when finances are in dispute.  Often a parent may be unwittingly tempted to use the children as a weapon, reasoning that if the other parent (usually the father) won’t pay for the family’s upkeep, then why should he have any contact?  Contact suddenly becomes a treat that the other parent must earn, rather than the child’s entitlement.

For parents, the temptation with Child Law cases is to turn them into battles, to let loose the torrents of emotion that have been building up.  Statements become rants and each party becomes so utterly lost in their own personal hurts, they do not think of the hurts suffered by children who are forced to witness their parents become increasingly bitter shadows of their former selves.

A good Child Law specialist must be able to step outside of this emotional turmoil and give the client that much-needed objective viewpoint.  Child Law is heavy on common sense and light on theoretical positions.  As a Child Law specialist my role is as much about guiding people to reach the best outcome for their children as it is working through the complex documents that proliferate in any legal battle.

In an average week I will come across examples of all of the scenarios I have mentioned.

Sometimes a solicitor’s role will be to act as a buffer between the parties.  Those who instruct a solicitor early on can avoid trauma by ensuring that two hurt people do not lash out at one another, but instead filter their raw emotions through a level-headed third party. Often this can prevent a situation from spiralling out of control.

All too often people will instruct solicitors on financial matters but deal with the children themselves, for “cost reasons”. In my opinion this can be a false economy: if anything is worth spending money on, surely it is your children. Here at Stowe Family Law we have produced a parenting plan to try and cover the day to day practicalities of caring for the children, which ensures that both parents play a substantial role in the lives of their children.

As solicitors we are not simply mouthpieces for our clients, and we resist the temptation to let our clients rant and rave.  We filter information and we advise. Most of all we keep a level head so that a client doesn’t live to regret a rash decision made in the heat of the moment.  We are our clients’ advocates and representatives: our job is to make sure that they feel safe and protected and that the needs and wants of their children remain a top priority.

As for the warring pair described above: I was in the unenviable position of going to court and telling a judge that these parents could not even agree over two days in a year.  Two days which would rank amongst the most exciting and happy in the children’s life.

The judge was scathing to say the least. The matter took several hours to be settled, with both parents under pressure from the court to reach a compromise for their children’s interests. I am pleased to report that the situation was eventually resolved – and I am confident that the twins will enjoy both their father’s wedding and their family’s Christmas.

The best parents are those who can look beyond their own hurt.  They manage to put their grievances to one side and accept that the child enjoys spending time with both parents.  Children do love their parents – usually in spite of their actions rather than because of them.

Stowe Family Law is the UK’s largest specialist family law firm, with offices and divorce solicitors in London, Yorkshire and Cheshire.

With an outstanding national and international reputation, the firm provides a full range of private client family law services. Our divorce solicitors are praised by clients, the media and legal guides for their knowledge and expertise.

Marilyn Stowe and members of the Stowe Family Law team

The law needs changing – the Government must do more than tinker at the edges

Although I believe that the increased number of unmarried couples has created problems that are not covered with existing legislation, I was startled to learn that the Government has unveiled proposals to make unmarried mothers declare their children’s fathers on birth certificates.

At present, only children born to married couples must have a father’s name entered on their birth certificates. When a mother and father are not married, the naming is at the mother’s discretion. Every year nearly 50,000 babies – seven per cent of the total – are “sole-registered”, with only the mother’s name on their certificate.

The new proposals are described by The Daily Telegraph as follows:

Mothers will be forced to name their child’s father on birth certificates for the first time under Government plans which will improve collection of child maintenance from absent fathers.

The 45,000 mothers who leave the father’s name blank when registering a birth each year will have to identify him unless they can prove it is “impossible, impractical or unreasonable” to do so.

Once a name is given, the potential father will be contacted and ordered to register or submit to a paternity test. If a DNA test is positive, the man’s name will be recorded on the child’s birth records.

Fathers who deny paternity, but do not undertake a DNA test, will face potential fines.

Speaking as a family lawyer, I’m less than impressed. As I’ve noted previously, the Child Support Agency is unfit for purpose and has left millions of devastated people in its wake. These new proposals appear to be clumsy attempts to “patch” its failings, rather than to address the wider problems that continue to exercise a stranglehold upon that blighted organisation.

The plans are also a clumsy attempt to raise revenue via the CSA from named fathers. How exactly women will be compelled to disclose the name of the father is one obvious stumbling point. They fail to address the highly complex situation where – with the mother’s support – the father does not wish to acknowledge parental responsibility.

In my opinion, they are a smokescreen for the inadequate legal remedies that are currently available to unmarried parents. Marriage provides a safe and secure framework to support children. However, when couples simply live together or have children and are not married, the law is glaringly deficient.

The Government needs to stop tinkering at the edges and to bring forward laws that tackle the unnecessary challenges faced by unmarried couples.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

“If soldiers could declare a truce at Christmas, why can’t warring parents? Even in the midst of war, there can be peace.”

At the darkest time of the year, for people of many faiths, a light comes shining through the darkness. December is one of the most beautiful months: we place lights in our homes, in gardens, in our parks, to light up our streets, and on beautifully decorated Xmas trees to celebrate festivals that give us hope and faith for the year to come.

My own family celebrates Chanukah, the ‘Festival of Light’, with children lighting different-coloured candles every night for a week. They sing festive songs, eat doughnuts and tear their presents open with sticky fingers.

When our son was still a toddler, we took him to Disneyland for Xmas. On Xmas Eve we stood in a long winding queue round an enormous, beautifully lit Xmas tree, waiting to meet Santa. We could hear his booming American voice wishing each spellbound child in turn, “Merry Christmas little one!”

Finally it was our son’s turn, and he toddled into Santa’s Grotto. Santa looked at our awestruck little boy, staring open-mouthed with wonder at Santa’s red outfit and luxuriant grey beard.

“Happy Chanukah little one” said Santa out of the blue. I laughed and said, “How do you know?” He winked and replied, “Father Chanukah knows everything”.

Knowing that light in the darkness brings hope to everyone in the world, I feel so sorry for families experiencing breakdown. For them, this year’s festivities will not be as they were. As Xmas approaches, I have been listening to parents expressing concern, pain and anger that domestic turmoil will ruin their children’s Xmas. For children, Xmas should be full of light, hope and love – and nothing less. They shouldn’t have to endure the fall-out from ongoing vitriol, the distress of divorce proceedings and the time it takes to conclude a settlement. At Xmas, when children are away from their parents, or if the holiday period is divided up with disproportionate contact, the parents’ pain is very real.

I believe that with a good deal of effort, it is possible to place emotions on hold at Xmas, if just for a brief period of time. In 1914, English and German soliders fighting in the First World War declared a truce on Christmas Eve. For a few hours, the Great War stopped and the soldiers played football against one another. Even in the midst of war, there can be peace.

This is the advice I have been giving my clients. I readily admit that it is easy for me, with my grown-up son, to preach from behind my desk. Nevertheless, the prospect of a temporary Christmas truce should not be discounted. The children matter most, and are created out of parents’ love and hope, faith and trust in each other during better times.

At Xmas time, do parents’ interests matter at all? It seems to me that this is a magical time of year when parents should concentrate on the selfless act of giving – giving of themselves if necessary – for their children’s sakes.

If it means that children can think only of the wonderful Xmas they are having, and for just a short while can be freed from guilt about an absent parent and can forget that they are enveloped by a battle between the people they love most in the world, the effort is worthwhile.

Isn’t enjoyment what this special time is really about for all of us, parent or child? For some, the pleasure will come from seeing their children. For others it will be the comfort of knowing that they have truly given of themselves.

Not everything in life goes perfectly to plan. Few amongst us remain untouched by the harsh side of life. But generosity of spirit and kindness of heart produce better adults and act as guiding lights and beacons to children – and their children – for life.

And that, I believe, is what the light shining in the darkness teaches us.