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Home > Articles > 2011 archive

Relocation: Reform? Comments from the Relocation Campaign

Michael Robinson of The Custody Minefield and Relocation Campaign responds to the recent articles by Richard Gregorian and Gavin Emerson concerning leave to remove applications, Payne v Payne and post-Payne developments

Michael Robinson, The Custody Minefield















Michael Robinson
of The Custody Minefield and Relocation Campaign

Family Law Week has kindly given us the opportunity to reply to the recent articles by Richard Gregorian and Gavin Emerson. 

The Relocation Campaign
In 2009, I started the relocation campaign in the belief that Payne v Payne [2001 EWCA Civ 166 bound the courts to conduct a somewhat warped balancing exercise which was adult centric and formulated on unproven suppositions concerning what has commonly been referred to as the distress argument. In the cases I had been involved in, child welfare was barely considered, and any assumptions made as to the children's ability to cope with a dramatic change to the status quo was based on inexpert opinion.

Messrs Gregorian and Emerson's article 'Leave to Remove and the Payne Discipline - Breaking the Impasse' suggests that we wanted a child centric approach taken in relocation cases, and in that they are entirely right. 
 
The campaign has involved a wide number of organisations, and included two Early Day Motions in Parliament, Sir Bob Geldof's support by way of his foreword to my Parliamentary Briefing Report, extensive press coverage and a conference at the Palace of Westminster last November where I presented the second of my Parliamentary Briefing Reports 'Family Law: Relocation, The Case for Reform'

Within those two reports, I presented findings from 15 expert and wide ranging studies which unequivocally show emotional, psychological and developmental disadvantage to children when their relationship with one parent is materially diminished. I have received some criticism from certain quarters, as these studies do not specifically refer to child relocation cases. That criticism is easily rebutted by a simple analogy: 'If it is proven that a child suffers harm when beaten with a wooden stick, is further evidence required to prove that a child suffers harm when beaten with a metal rod?' The diminishing of relationships with a parent places a child at risk of harm, and there is no leap of logic required to understand that relocation comes at the severe end of the spectrum, especially when compounded by a change in schools, loss of peer relationships, and removal from a familiar culture and environment and often wider family.

In the 1980s, Parliament in their wisdom considered there to be a risk to child welfare when there was a dramatic change to the status quo. The Children Act at s.1(3)(c) required the courts to consider the effects on the child in a change of circumstances, yet perversely, in relocation cases such a change was barely considered. In their article, Gregorian and Emerson state: 

'(f) The "Holy Grail" of research evidence desired by critics to the effect that leave to remove leads to negative outcomes for the children involved (even if a matter of "common sense") will, in all likelihood, not be forthcoming.'

The Relocation Campaign has not found it necessary to call for further research, and I clearly stated that there was no such need in my speech at the Palace of Westminster in November 2010 for the reasons set out in the two paragraphs above. 

We accept there is a need for more research into whether contact is supported or indeed practical following children having relocated abroad. For fathers such as Steve Moseley, and children such as Savanah-Jade (http://savanah-jade.org/), the belief that contact will be as promised by the relocating parent is often misplaced. His is not the only case we are aware of where contact was denied within months of relocation. 

We dispute that relocation judgments are fact specific. They are routinely based on unscientific assumptions, questionable CAFCASS recommendations and a burden of proof which is decided on a balance of probabilities based on unsubstantiated opinion rather than fact. We agree with much of what Messrs Gregorian and Emerson have written in their second article, and especially their comments about how a litigant's demeanor on the stand may be misinterpreted by the judiciary. If in control of their emotions, a judge may consider them to be 'cold'. If not, they may be deemed 'overly emotional'. At Families Need Fathers' AGM in 2010, from the audience, I challenged Sir Nicholas Wall on this very point, when he stated that relocation cases were fact specific. To support his point, he had said trial judges have the benefit of witnessing the parents on the stand. I asked him whether it was safe to assume that a parent's demeanor in the unnatural and stressful settings of court, when their relationship with their child is at risk was representative of how they would be in their normal, day-to-day life. It is dangerous when assumptions based on partial information are considered to be fact.  Similarly, the test for family cases is a balance of probability which lends itself to opinion, assumption and error. 

With regard to Gregorian and Emerson's vision of due process in relocation cases, this is an ideal which we would similarly hope for but believe to be beyond the reach and means of many. We see many parents who simply cannot afford the cost of psychiatric or other expert evaluations. They cannot afford solicitors' costs or cost of counsel, when such costs in relocation cases can run to tens of thousands of pounds. In the current economic climate, the ability to raise funds through loans, remortgages and overdrafts is limited. The impending cuts to legal aid will ensure another tranche of the population lose access to expert assistance in case preparation and advocacy. If relocation does subsequently occur there will be increased costs in facilitating contact and if finances are exhausted on experts during a hearing this could prevent contact from occurring after any relocation.

We do not disagree that the UK parent should ideally investigate mirror orders in the foreign jurisdiction, but do question how practical this is. The judiciary themselves should be informed as to the practicalities of enforcement in the new jurisdiction, but in our experience, rarely are. Decisions are made blindly.

Rather than the UK parent investigating mirror orders, there should be a requirement that the relocating parent must obtain a mirror order in non BRII countries prior to the children's passports being released. For a parent wishing to relocate, this requirement would not be an insurmountable barrier and would merely be part of the arrangements they must make. We see cases where the UK courts direct that a mirror order should be obtained within three months of the emigration, but unsurprisingly, in the cases we have seen, this gets 'forgotten' once the parent is outside of the UK court's grasp. The UK parent then faces the prospect of litigation in a foreign country, after having exhausted their finances trying to defend against the leave to remove application. We are seeing more instances of parents relocating to European countries who then apply to court in the new jurisdiction for variation to the order made under BRII, sometimes seeking to re-litigate or simply seeking to reduce the contact granted by the UK courts. Enforcement of contact orders is hard enough in the UK. In a foreign country, legal costs are compounded by costs of travel and accommodation. 

Litigation Checklists
We noted the following comment in Gregorian and Emerson's first article which we would like to reply to:

"The creeping commoditisation represented by litigation checklists and evidential templates produced in certain quarters is the bare minimum required by a parent whose application or defence will have life changing consequences for both the child in question and him or herself."

We do not disagree, and proudly provide some of those checklists to which they refer. Content will continue to be updated and improved. What must be understood is that there now exist two classes in Britain. One populated by those who can afford professional counsel, and one where such assistance is entirely beyond their means. The former is populated by executives, the latter by the cab driver and shop or factory worker, who struggle to pay their heating bill, and whose debit card may be rejected before pay day. The latter do not qualify for legal aid and the cost of the application fee alone can be a struggle. They cannot afford expert assistance, so organisations such as The Custody Minefield provide information expressed in terms that these parents have a prospect of grasping, which offers them a chance. Soon these parents will be joined by the very poorest in society, when legal aid is further restricted.

Anecdotal reports have noted the increase in the number of litigants in person, especially in the family courts. Checklists and templates that help focus what is presented in such situations to the Courts can only offer benefits in terms of clarity, brevity and a more efficient use of court time. 

Re K, Payne, and Internal Relocation
While we welcome the judgment in K (Children) [2011] EWCA Civ 793 moving matters forward, we feel that the Court of Appeal has once again missed an opportunity to provide clarity. We have seen comments from the legal profession which range from the judgment being ground breaking, to it only affecting a few cases. Thorpe LJ says Payne should not apply to cases involving shared care, while Black LJ says it should. The only point of law from Payne is the paramountcy principle although the guidance (and presumably the distress argument and the recommended weighting afforded to it within the balancing exercise) should still be considered in cases where there is clearly a primary carer. According to the selective research cited by Thorpe LJ, very few adults share care (although the Equal Opportunities Commission in 2008 found mother/father care time only differed by 15 minutes a day in intact families). Black LJ stated 'I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armory for deployment in the event of a relocation application.' 

What does this all mean? In lay terms, the binding guidance of Payne has been somewhat relaxed in external relocation cases, and matters are now more subject to the wide ambit of judicial discretion. The difficulty now is that the rigidity of Payne is replaced by the inconsistency of opinion as to whether or not to apply it in full or part. It is highly probable that many cases now will focus on the minute details of any arrangements already in place trying to determine if it is "a Payne case" or "a Re Y case".  For those seeking leave to remove, or seeking to prevent it, it becomes more of a lottery, and one based, as Gregorian and Emerson state, on the skills of counsel. Whether or not the paramountcy principle will be considered foremost will be dependent on the individual judge's weighting of the distress argument, the skills of counsel, and for the less well off, whether they have the ability to articulate their argument.

The Court of Appeal further limited the judgment, by stating the review of Payne did not apply to internal relocation cases. In Re S (A Child) [2001] EWCA Civ 847 we see the guidance within Payne influencing internal relocation cases. In Re S at paragraph 16:

"16. The jurisprudence in those cases that are now caught by section 13(1)(b) had been established over the course of more than 30 years by decisions of this court which recognise the great importance of not imposing on primary carers' restrictions on their freedom to choose their preferred way of family life and their preferred place of residence for two good reasons. The first is that often the notion of such restrictions are simply contrary to good sense and, secondly, because the imposition of restrictions is likely to have an adverse effect on the welfare of the children indirectly through the emotional and psychological disturbance caused to the primary carer by denial of the freedom to exercise reasonable choice."

We make the same criticism of the guiding judgments in internal relocation as we did of those in leave to remove cases. Some of that oft cited guidance is adult rather than child centric, and in our opinion, there remains a risk that the balancing exercise will too heavily weight speculative adult welfare assumptions against evidence based child welfare risks.

Concluding Remarks
The recent review of Payne is welcomed as a step forward in how international relocation is considered by the courts. The decision that the tests laid out in Payne v Payne are guidance rather than a process that the courts are bound by is helpful. Where further clarification is required is around how international relocation cases will now be considered by the courts and how this decision will be implemented. We believe that guidance is required to provide more consistent and child centric approach to determining such cases. We have detailed these proposals in our response to the Family Justice Review's interim report, which has been presented to them and co-written by the charity Families Need Fathers.

Furthermore, there are still significant matters around internal relocation that need review and reform, and it was disappointing that the interim Family Justice Review completely ignores the controversial area of relocation law (despite assurances to us by Sir Tom McNally, Minister of State for Justice, that the FJR would consider these matters).