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Leave to Remove: A Lawyer’s (all too personal) view

A commercial litigator presents a highly personal view of some perceived procedural and evidential flaws in leave to remove cases, borne out by his own experiences in successfully defending an application through the family courts.

The author of this article wishes to remain anonymous to protect the identities of the other party and the children. The views expressed are those of the author and not necessarily those of the publisher

Introduction
As an insolvency partner in a City firm, I was very accustomed to advising clients on the many legal issues resulting from corporate failure. However, as the father of two very young children born to an American mother, nothing I had experienced in my many years of commercial practice quite prepared me for the experience of being involved in this most shocking by-product of marital failure.

Although I successfully defended my wife's application to permanently emigrate with our daughters to America and obtained an order for shared residence, the "holy grail" of non-resident fathers who wish to be involved in their children's upbringing, my personal experience of the various agencies and Family Court judges I encountered in the sixteen months prior to the Final Hearing in August 2007 was overwhelmingly very negative. Indeed, how poorly both my children and I had been served during that time was clearly demonstrated by the judge presiding at the Final Hearing who, by contrast, made it clear that he realised the importance of the outcome to both parents, very quickly focussed on the incongruencies in my wife's case which previously had been ignored and welcomed the existence of corroborative evidence however upsetting it proved to be to my wife. That being said, I am very aware of the very vocal and sometimes misguided criticism that particularly estranged fathers direct at the family justice system and those who operate it.

Accordingly, the purpose of this article is to highlight certain features of a "typical" Leave to Remove case which to the "outsider" seem counterintuitive and, consequently, give those critics of Leave to Remove (LTR) further encouragement beyond that created by the perceived unfairness in subordinating the children's relationship with both biological parents to the primary carer's "distress argument". The "distress argument" refers to the emotional and psychological distress the primary carer will inevitably feel if their LTR wishes are refused, and which will inevitably result in an uncontrolled impairment of their parenting skills to the disadvantage of the child.

Resolution estimates that there are approximately 1200 Leave to Remove ("LTR") cases heard by the English courts each year. That figure does not, of course, include the very significant number of cases in which the respondent parent accedes to the primary carer's wish to emigrate, having received the usual legal advice as to their limited chances of successfully defending the primary carer's LTR application should it reach Court, and weighing it against the financial cost of litigation and its effect on their ability to fund any overseas contact which the Court gives them should the defence fail. With the growth in immigration and international marriages, these cases will only increase. Those parents who unsuccessfully defend LTR applications (75% according to the reported cases, but anecdotally as high as 90%) face the permanent impairment or termination of their parental role.

The Absence of Expert Evidence
The central significance of the "distress argument" to the primary carer's case and how to demonstrate it to CAFCASS and the Court will be known by even the least savvy applicant. Accordingly, I found it strange that the Court does not, as a matter of course, obtain specific psychiatric and/or psychological expert evidence as to this most critical of issues. Rather, as a general legal principle, the Court appears to believe that in each case (notwithstanding individuals' infinitely variable psychological make up and ability to cope), the primary carer's feelings of distress and their inability to conceal its outwards manifestations from the children is a given. Conversely, any speculation by a trial judge that the primary carer will be able to cope with life in England if their LTR is refused is likely, on appeal, to be relegated to the realms of mere "judicial hope". In my own case and that of several others where the LTR application has been successfully defended or where the former spouse has returned to England after being granted LTR, this hope has not proven to be overly optimistic. In one of those cases, a bizarre chain of events was set in motion that resulted in a successful application by the father who had followed his child to Spain after LTR was granted, for the return of the child from England where the mother had subsequently taken him.

This refusal to permit expert evidence encourages those who accuse the Family Courts of lacking transparency. Such reluctance may betray the reality of the situation that the applicant's statements to an expert concerning their distress may be as self-servingly untruthful and manipulative as those in the witness testimony. If this is the reason, and with so much at stake, it seems to me that rather than affording the distress argument central significance in LTR, it should be given the same weight as any other piece of subjective, uncorroborated, self serving, and necessarily speculative evidence.

The need for expert assessment is clear when one considers the typical manner in which an applicant seeks to demonstrate distress: most commonly that they are isolated, having failed to integrate themselves into any social or parental network in this country which could offer them much needed emotional and practical support. Further, if, as seems to be a reasonable proposition, distress is a manifestation of an inability to cope with one's environment, how will those same coping mechanisms perform when they are put under the very significant financial, practical, and emotional stresses following divorce or separation and as a single parent in a country which the applicant has not lived in for, perhaps, many years or at all. Emigration may further add to the primary carer's anxiety if, as is often the case, they are also forced to work full-time after many years looking after the children. This may happen because the financial support of the non-resident parent is now diverted from the family into excessive travel costs at a time when they have also decided to settle for a lower paid position in order to give them the flexibility to see their children. The Recent Life Events Questionnaire used by Social Services to evaluate coping mechanisms may be a useful starting point. Rather poignantly for LTR cases, where a successful application results in the child losing one of the two most significant people in his or her life, the Background section of that Questionnaire states "Most negative life events can be seen as involving the experience of loss" and "Losing a parent at a young age, particularly before 11, has been reported to independently influence well-being in both childhood and adult life".

Most significantly where neither CAFCASS nor the Courts are able to exercise any long term influence over the success or otherwise of contact, expert analysis of the applicant's co-parenting values and belief systems also seems to require expert scrutiny. There is, of course, an obvious disincentive for the applicant to show the true extent of any negativity they may harbour towards the other parent. Whilst not claiming to be an expert in psychology (albeit its importance in my case cannot be underestimated) it does seem revealing to me how:

(a) many applicants with a history of obstructing contact promise to literally throw open the doors of their foreign home should they be granted LTR.
(b) many LTR applications follow closely on the non-resident parent seeking to formalise their own parental rights with the court.
(c) an applicant who the law treats generally as being unable to control their emotions, has the self awareness and objectivity to put aside the inevitable acrimony that accompanies LTR applications in exercising their parental responsibility to decide whether LTR is in the children's best interests.

In view of the paramountcy principle and the absence of independent representation for the child, I was also surprised to find that no expert child psychology evidence is requested by the Court, unless there is a specific need requiring it (for example, significant parental conflict or the LTR's effect on any special needs they have). There are a number of factors unique to a child which warrant careful expert scrutiny. These include the child's ability to cope with the anticipated parental distress, their new lifestyle and the consequent loss of education, friends and family in this country, as well as the quality of their parental attachments. Such expert analysis is even more important when the child's wishes are invariably expressed against the likely background of coaching and parental alienation.

In the absence of such expert scrutiny, the necessarily more superficial analysis of the facts and associated conclusions in certain of the reported cases give further encouragement to those that accuse LTR of being too primary-carer (rather than child) centric:

The Role of the Children and Family Court Advisory and Support Service ("CAFCASS")
Unlike an ongoing domestic contact dispute, CAFCASS's involvement in LTR cases is likely to begin and end with their court welfare report. Their report is the earliest indication to the parties of how an "independent" person, with seemingly great influence with the ultimate arbiter of the case, views the respective merits of their case. It is, therefore, of great concern that a simple fact seems to have been overlooked: CAFCASS possess neither the skills nor the time to conduct proper investigations into the impact of LTR on the children.

As former probation officers and social workers, CAFCASS officers lack the legal skills to effectively cross examine a primary carer on their reasons for LTR and the genuineness and extent of their distress argument (and, conversely, the respondent parent's motivation for defending). That is better done (within the limitations outlined above) through expert cross-examination supported by the judge's inquisitorial role.

CAFCASS also lack the training in child psychology to expertly opine on a child's relationship with their parents, to determine their wishes and feelings or the impact of LTR on them. That function should be clearly carried out by a child psychiatrist or psychologist (especially if the children are young). Moreover, CAFCASS and the entire family court system lack any meaningful research on the impact of LTR cases on children, their welfare, mothers, fathers, contact and the whole range of issues associated with the matter.

Frequently, a CAFCASS report recommends either for or against LTR being granted. Several trial judges have made it clear, in my view quite properly, that to do so is to usurp the function of the Court: the practice continues.

Judicial criticism of CAFCASS in the reported LTR cases bear testimony to some of the wholly inadequate reporting undertaken by them where, as a consequence, the judge has refused to follow the CAFCASS officer's recommendation. Since many months may have passed between their involvement and the Final Hearing, and cross-examination may not sufficiently demonstrate their reporting errors, there is no effective "quality control" of their judgements and recommendations.

In my conversations with them, CAFCASS expressed surprise that an applicant seeking LTR was not required to set out a life plan for themselves and the children if their application failed. Such a plan may go some way to ensuring that after the financial and emotional carnage of LTR litigation, the best interests of the children, are considered, whether or not LTR is granted and, crucially, independently of the primary carer.

Independent Representation for Children
In advocating their diametrically opposed positions, both parents claim to be the guardian of the children's best interests. However, in such bitterly fought litigation, any parental integrity is soon reduced to a "win/lose" scenario with each party litigating their best points against the other. Each party may be fighting for their own survival or way of life rather than what is in the interests of the child.

In such an environment and, particularly since the Court of Appeal has clearly aligned itself with the primary carer's position without specific expert advice, it is desirable that the children are independently represented. The individual child's case for both biological parents or, alternatively, the importance of the distress argument could, with the assistance of expert testimony adduced by the child's advocate, be presented to the Court in a more independent and, therefore, credible manner. It would, for example, be an interesting starting point for any guardian of the child's interests to explore why the experience of loss to the child which is at the heart of the primary carer's distress argument (of their home, family and friends) should be any more damaging than the loss of one of its biological parents at the hands of the other which he or she will experience if the LTR application succeeds.

Such representation would also do much to satisfy the left-behind parent's understandable need that, even if they are unsuccessful, justice was seen to be done by the presentation of the child's case

The advantage of the primary carer in LTR cases
A great deal of the criticism in LTR cases aimed at the Court's clear bias in favour of the resident parent would be defused if the present preference of residence and contact evolved into a system of shared parenting (as distinct from shared residence). As a newly separated parent with nearly half the week with my children, I feel desperately sorry for those, predominantly fathers, who overnight move from involved co-parent to one having alternate weekend contact or worse still find themselves in a (supervised) contact centre solely on the basis of the primary carer's allegations. The primary carer receives a nearly insurmountable head start in LTR litigation as a result of the accepted principle that, on the breakdown of marriage, the children revert, de facto, from the joint custody of both parents to the sole custody of a single parent, typically the mother This is an old fashioned and discriminatory view of parenting which manifests itself in numerous areas of the family justice system where the starting point appears to be that fathers are to be given minimal contact with their children coupled with full time spousal and child maintenance or where their contact can be restricted on the basis of false allegations or maternal anxieties as to the father's involvement. It is truly shocking that Ward LJ felt sufficiently motivated to make the observation on the issue of parental alienation which he recently did and that other senior judges have felt it necessary to criticise their own family justice system.

Whilst the Courts maintain that they factor in the circumstances in which one parent became the primary carer, several of the reported cases demonstrate that abduction and obstruction of contact are not a bar to LTR but rather are viewed as further example of the primary carer's distress. Those judges could be said to be rewarding bad behaviour. Even when a parent enjoys or has recently enjoyed very substantial parenting time (41% in the recent Court of Appeal case1), leading to the children having a strong and secure attachment to that parent), this invariably proves insufficient to counter the LTR application of a primary carer who has taken and subsequently jealously guards their role as primary carer.

Jurisdiction Concerns and the Primary Carer's ability to reapply for LTR
If the applicant is successful, LTR is permanent. Any enforcement of contact is undertaken by the parent left behind at their expense and inconvenience in the country of emigration. Indeed without a hint of irony, the fact that contact rights may be more easily enforceable and LTR less available in that country than in England has been used in support of granting LTR. Any breach of the Court approved plan by the primary carer after LTR has been ordered is necessarily met with a shrug of the judicial shoulders. Having forfeited jurisdiction to the country of emigration, there is nothing the English Court can do to rescind its order where a the applicant fails to follow their proposed plan immediately or, if they have an ounce of common sense, a short time after they have stepped foot in the foreign country arguing, if necessary, a change of circumstances. Undertakings, mirror orders, security funds, even temporary LTR consents are no match for an applicant who, having largely succeeded in erasing the other parent from the children's life obstructs contact after they have emigrated. Even if it could order a recalcitrant parent's return, to do so would doubtless be opposed by arguments that the resultant distress would be amplified to the detriment of the children. Consequently, any attempt to manage or, if the move can be shown to have been unsuccessful for the child, reverse the LTR through a process of co-ordinated international judicial cooperation is prone to failure due to the overriding importance of the distress argument even though such co-operation is presently very much on the agenda.

Conversely, it is perfectly possible for a parent whose financial resources, job, and peace of mind were disrupted by the LTR proceedings to face a second or subsequent application due to the passage of time or a new relationship formed whilst visiting her homeland. The fact that the primary wage earner may be obliged to fund both their and the applicant's legal costs together with the absence of any brake on the application through compensatory or punitive costs orders or punitive sanctions for false allegations, means that primary carers may perceive themselves to be in a "no lose" litigation position.

A word on "Stepfather Relocation Cases"
Encouraging parents to take individual responsibility for the numerous decisions which lead to the bringing up of children in this country with both biological parents, is clearly not high on the Court of Appeal's list of priorities in determining LTR. In its quest for the perfect nuclear family, the Court of Appeal places the respondent biological parent in the weakest position of all to defend a LTR case rather than condemning the absence of any critical thinking by the parent and step-parent of how they will further their relationship when the children are anchored through their biological parent in England and when the step-parent is anchored by family or career reasons abroad,.

The Court of Appeal clearly prioritises the applicant's new relationship over the children's contact with the other biological parent on the basis that the "new family" is the vehicle through which the children's material and other fulfilment is aligned, as well as providing the primary carer with the obligatory emotional, practical and financial support 2. This is so even where the new relationship is severely handicapped from the beginning. In the nature of such cases, the applicant and step-parent, in all probability, will be embarking upon a second or third marriage each (if remarriage is involved at all), perhaps shortly after their prior marriages have failed. The applicant will have the added stress of emigrating to a new country of which they may have no experience or support, with no career and with a new partner who, if they are moving for career reasons, may be expected to work long hours. Finally, there may be the need to merge the two step families together. In one recent case, two English fathers lost their two children to the Middle East, to a step-father who had no experience of living with even his own children. With these risk factors in play, LTR lawyers in the country of emigration should be wringing their hands with glee.

Invariably, whilst the respondent parent's character is put under the microscope, a common complaint is that not even the most simple of checks (for example, Criminal Records Bureau) are carried out on the new individual in the children's lives.

Step-father relocation cases polarise those who argue on opposing sides about the morality, fairness and individual (parental) responsibility of LTR cases. Whilst the Courts sell the benefits of a long distance relationships between the biological parent left behind and their children through the "better quality" time they will enjoy, what is good for the goose is not good for the gander. In promoting LTR in step-parent relocation cases, the Courts have held that the step-parent cannot possibly be expected to be placed into the impossible position of having to conduct their relationship with their new partner across jurisdictional boundaries. Rather, once the step-parent chooses of their own free will to enter into the relationship, despite the existence of a biological parent anchored in this country, the Courts also treat them as a victim of circumstance, unable to control their emotions. The logic this time is that the step-parent cannot be prevented from emigrating with their new family since his career aspirations would be frustrated. Such frustration will, as with the biological primary carer's distress argument, result in manifestations of uncontrolled resentment towards (this time, another person's) children.

Conclusion
There appear to be a number of systemic problems with the way in which the family justice system handles LTR cases. Further, LTR, as with many other aspects of family law, appears in the vast majority of cases to prefer the primary carer as the evolutionary nurturer.

The accepted bias in the law in favour of the primary carer is amplified by the overly protective nature of the family justice system towards that parent, typically the mother. In my own case, each judge and agency I encountered prior to the Final Hearing was unwilling to respond to my repeated demands for ensuring evidence was produced or investigated in the children's interests when that demand came into conflict with the mother's sensitivities. In particular, due to the mother's constant denials (supported by a belief that corroboration was impossible to obtain) it was necessary for me to request the Court's assistance to obtain forensic evidence from the mother. Those requests were denied on the basis of it being a "fishing expedition" (albeit the directions judge made it clear an adverse inference would be drawn if the evidence was not obtained by the mother). A pointless and extremely expensive game of cat and mouse then ensued as the mother, try as she might, "failed" to come up with the goods. With my hands tied so as to keep the mother happy, that evidence was obtained in any event, at further great expense, and ultimately defeated the mother's case. Whether it be video, tape recordings or any other type of evidence, the obtaining of which routinely back fires on the father, I would suggest that the Courts should spend more time considering what the evidence shows and why the father was motivated to obtain it rather than how upsetting its disclosure may be to the mother. Having spoken to numerous fathers in respect of their own domestic and international children cases and having read the recent statements of a number of senior judges, I remain truly shocked.

1 G (Children) [2007] EWCA Civ 1497
2. Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction) [2003] EWCA Civ 1149

The author can be contacted at ltr@gelaw.co.uk