External relocation: when a parent wishes to move overseas with a child, what rules apply? By Laura Guillon.

Children|April 15th 2011

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 the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. 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.

Author: Stowe Family Law

Comments(63)

  1. Chambers says:

    The Payne v Payne arguments are merely the Judges ‘opinion’ only. There is no research which supports this discredited opinion.

    However, there are large amounts of peer reviewed research which shows that the Judges ‘opinion’ is wrong and crucially it is generally harmful to children’s welfare.

    http://www.thecustodyminefield.com/Reports/FamilyLaw-Relocation_The_Need_For_Reform.pdf

    Putting the mothers needs above the children’s as has happened for 40 years or so reinforced by Pain v Pain (sic) is appalling discrimination against children and fathers.

    The children in Payne v Payne lost all contact with their father after the relocation, this happens time after time while the Courts rubber stamp these self interested applications generally made by mothers.

    Too often we see Courts waving through leave to remove applications where children lose a parent and their way of life, school, friends and extended family. The harmful effect on children is massive generally. We know this because the peer reviewed research from here and all over the world shows this.

    So why do the Judiciary still rely on mere unsubstantiated opinion rather than the mass of peer reviewed research?

  2. thelizlibrary says:

    Every situation is different. A general rule that presumes that children will be harmed if they do not have a close relationship with both parents is no more supported by the research than is a general rule that say they will not be harmed. Nor is there any research weighing relative harms. It’s going to depend on the particular situation, the family constellation, the history of care giving, and the people involved and their relationships with each other — as well as the personal opinion of the judge. There is just no way to get around that part.

  3. MIchael Robinson says:

    In November 2010, I presented 15 research studies on relocation and the impact on child welfare (at Westminster). Those studies confirm that there is a risk of harm to children when subjected to relocation away from one parent.

    Wall’s comments in his 2011 judgment, where he calls for more research before contemplating a correction to this judge made law, are somewhat surprising given that those 15 studies have been placed before him on appeal, yet he fails to mention them in judgment. Evidence, sadly, is ignored in relocation cases, and in the words of Mr Justice Mostyn in the case AR (A Child: Relocation) [2010] EWHC 1346 (Fam) the court’s current ideology in relocation cases ‘contaminated the purity of the paramountcy principle’ . Mostyn’s opinion, as editor of Jordan’s International Family Law, should not be ignored (but is no doubt an irritation to his superiors).

    The existing research studies have sample groups of up to 30-40,000. While I appreciate more research is always welcome, it should be noted that the last study by Professor Freeman (who Sir Nicholas Wall mentions in the judgment) only looked at a sample group of less than 40. Sir Nicholas waits for her next research study, which is doubly curious, in that I struggle to understand why a professor of law should be preferred to conduct a study into psychological matters related to children. Perhaps the courts are hoping that the first study to support their ideology in relocation cases is just around the corner.

    If research proved that a child suffered harm when beaten with a frying pan, should we wait for a study to prove that children are harmed when beaten with a stick? That is a fair comparison to our senior judiciary’s refusal to consider existing research in the forelorn hope that research will support their opinion on matters related to child welfare and relocation.

    In 40 years no research has supported the court’s position. You would have to admire their stoic optimism, if it weren’t for the fact that so many children are adversely affected while we wait. My speech at Westminster can be read here http://www.thecustodyminefield.com/Reports/Relocation-Speech-November2010.htm.

    Michael Robinson
    The Custody Minefield
    The Relocation Campaign (www.relocationcampaign.co.uk)

  4. MIchael Robinson says:

    As to internal relocation, case law is quite clear that the courts will only stop a relocation in exceptional circumstances. Re B (A Child) [2007] EWCA Civ 1055.

    Thorpe was quite clear ‘A primary carer will not, save in exceptional cases, be restrained by the court as to where they may live’. There IS therefore a presumption in law that relocation will be granted.

    The Washington Declaration is not binding on the UK courts. Point 8 may cover the distress argument, but the important matter is that the great weight afford that single point is UK law is not defined in any meaningful sense by the guidance put together by experts from 50 countries. Point 8 ‘could’ cover many things. The whole point is that the distress argument was not found compelling by international experts, despite LJ Thorpe being the UK’s representative in those discussions.

    It is also worth noting that other courts, including New Zealand, have discarded Payne v Payne as an authority, because it rank’s a parent’s wishes higher than a child’s needs. Peter Boshier, head of the family division of the NZ Courts was yet another expert who found the UK courts’ guidance to be flawed, and counter to the paramountcy principle.

    New Zealand’s primary legislation was updated in 2005 to take into account the United Nations Convention on the Rights of the Child. Once can only hope that our Family Justice Review’s next report will be similarly as child focused, and not just an exercise in cost cutting and case management.

    Michael Robinson
    The Custody Minefield (www.thecustodyminefield.com)

  5. MIchael Robinson says:

    “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.”

    So thought Thorpe when he gave his judgment in Payne v Payne which became binding precedent for the courts. Thorpe was wrong, and the child went on to lose his relationship with his father.

    The binding precedent didn’t work for the child in that case. Too many judicial decisions are based on blind hope, crossed fingers and unsubstantiated opinion. This is why, too often, children are failed.

    Michael Robinson

  6. Marilyn Stowe says:

    I really appreciate you taking time to comment. I can see you have very strong views, but equally so do the ‘stuck’ mums whose lives seem deeply unhappy to this observer which must then impact on the child.
    I don’t believe there is an acceptable answer to this extremely difficult subject unless both parents are prepared to make sacrifices, and both are prepared to work hard to achieve a balance for the benefit of their child. Its emotional security that a child always needs, and I think it is possible for a child to have that security and peace of mind provided parents both work hard to achieve it putting their own needs second. But both of them must do that, not just one.
    It’s very hard, in transnational cases, but not impossible. Laura Guillon’s final post appears on Monday and I hope you find it interesting.

  7. Chambers says:

    These so-called ‘stuck’ mums are a small minority compared to the many ‘dragged’ children (children who are dragged around countries at their mum’s whim).

    Your example that kicked this series off, is of a mum who dragged her 2 kids from a previous relationship to a faraway land without a thought for the left behind father or the children’s relationship or their family and friends, school, clubs etc

    She then wants to drag the 2 children from a previous relationship and the new child away from the country they are now settled in and away from the 3rd child’s father, family etc

    This scenario is repeated time and time again both in internal relocation and leave to remove cases where children are dragged around by a selfish parent, away from everything they know and love including the left behind parent, family and friends, school etc

    Time to stop treating mothers as children and putting their needs above children – Put children first and foremost.

    Time to use peer reviewed research rather than mere unsubstantiated opinion which the discredited Payne v Payne is.

  8. Marilyn Stowe says:

    You have ignored my comments.
    The example is of two parents, one who has assumed the responsibility of transnational step parenting, whose transnational marriage catastrophically broke down.
    Two parents/step parents are involved, not one. They both need to do their utmost. Creating a virtual prison for all children involved is not an answer.
    As is clearly demonstrated. If both parents, not just one, stopped putting their own needs first and appreciated they have a genuine transnational family, with genuine transnational needs to be met, perhaps the misery would end.
    Transnational families needs are more complex and require more give and take.
    Which isn’t immediately obvious from you?!

  9. MIchael Robinson says:

    It’s not so much strong views, as views informed by child welfare research findings, which one would hope would inform the court’s decisions, but sadly doesn’t.

    There is a simple answer if mum misses family abroad. She travels to see them, and they travel to see her. Parenting involves commitment to your child’s welfare first, and sacrifice. The answer is for mum to maintain ‘contact’ with her own family via skype, and to get on with life. It can’t be argued she’s entirely isolated, as she has her children with her. If she relocates, she’s likely to have to make new friends, and sometimes the grass isn’t always greener over the international border. It isn’t possible to do all one wants to as a parent. For most parents, that’s acceptable.

    That lovely phrase, with rights come responsibilities.

    As for compromise, If one parent seeks to relocate, I (and the courts) struggle to see a compromise. It’s relocation, or not relocation.

    To suggest it is prison for the children, to remain at school, with friends, both parents, and the familiarity of both homes is somewhat extreme. No one is suggesting it’s ‘transportation’ for the children to be moved, simply that evidence shows that children are likely to suffer emotional, psychological and developmental harm by being removed from one parent, and relocation is at the extreme end of that scenario.

    Selfish of one parent to ignore those risks. Negligent for the judiciary not to consider the expert evidence of those risks, in favour of an unsubstantiated 1970s view of family life.

    Michael Robinson

  10. MIchael Robinson says:

    Also worth commenting on the wider issues of maintaining contact if the relocating parent decides not to honour the UK made contact order.

    Wall suggested in a recent case that the courts of England and Wales and Australia (in that case) would do all they could to help maintain the children’s relationships after relocation. Somewhat fatuous, when you consider that the domestic law is “sterile, impotent and utterly useless” in this regard (not my words, but Lord Justice Ward’s in 2008).

    It is worth looking at Steve Moseley’s experience of trying to find his daughter after relocation, when mum changed addresses 1 month after relocation, and didn’t tell him. Three years on, his child is still missing. Please take the time to watch the video on his website, and balance the impact on all concerned against one parent’s selfish desires http://www.savanah-jade.org/. The judge in that case was convinced mum would support contact despite the father’s protestations otherwise (once again, decisions made on crossed fingers).

    International agreements are no guarantee even in child abduction cases. The regional head of the family bar association in Pakistan tells of Thorpe’s much vaunted UK/Pakistan Protocol not being worth the paper it’s written on because it’s not ratified under Islamic Law.

    Judiciary of member states of the The Hague Convention on the Civil Aspects of International Child Abduction pick and choose whether or not to follow that international law. Explain to one father (who I know) whose case was recently on television why it is that two years after an order was made for his child’s return (under the Convention) he is still battling in the Mexican courts. Welcome to the world of Mexico’s amparos. Not all parents have £60,000 to fund foreign legal costs.

    Wall’s suggestion that contact enforcement abroad, to protect a child’s relationships, are either deliberately misleading, or our President of Family Division of the Courts is uninformed. Either situation is unacceptable.

    When it comes to relocation in Europe, I’m aware that too many judges in the UK have not heard of an Article 41 certificate, or that one needs to be signed by the judge at first instance to make a UK made contact order enforceable in another European member state under the Brussels II Revised Regulations. The only place I know where you can download this form is via my own website? A useful article on the importance of this certificate can be found on Family Law Week http://www.familylawweek.co.uk/site.aspx?i=ed1020.

    It isn’t so much that international family law is flawed, but that the application of that law (including in the UK) is haphazard, amateur and highly inconsistent. Determinations which have significant impact on child welfare should surely be subject to some degree of professionalism and have a basis in evidence.

    Wall’s statement that relocation cases are fact specific is simply untrue. Mum says she’ll be distressed, the court grants leave to remove. In the case Re G from 2005, the CoA even decided that no evidence need be produced to support this ‘argument’. Expert evidence on the impact of removal from a significant attachment figure, and the long term psychological risks associated with this are ignored in judgment time and again. Cases are decided on an unsubstantiated ideology rooted in a 1970s view of family life. Appeal to the Supreme Court is often blocked by virtue of s.54 of the Access to Justice Act 1990 (where appeal to the Supreme Court can only be made if the lower court grants permission to appeal).

    Why is it, that I cannot find a single case where the RCJ has overturned the granting of leave to remove. Surely, if such cases were finely balanced, the history of appeal would not be so one sided?

    Experts from 50 countries came forward with child focused guidance in 2010 (the Washington Declaration). It bears no resemblance to the UK court’s guidance. Reform of relocation law is not even mentioned in the Family Justice Review interim report despite the UK being so out-of-step with the international community and the significant domestic criticism.

    Wall states that only the Supreme Court or Parliament can change this ‘judge made law’. Not true. He could declare the guidance in Payne v Payne to have been made per incuriam (without care), as it post dates the Children Act 1989, and weighted other factors as highly (or greater) than those factors set out in the welfare checklist.

    I applaud the MPs, solicitors, barristers, psychiatrists and the Honourable Mr Justice Mostyn who have been outspoken on these matters, calling for change. I know many in the legal profession feel no less strongly on this issue than I do.

    Also worth reading is Ann Thomas’s speech at Westminster ”Moving country but losing the child: Reform and Resolution of Child Relocation Law and Practice’ which can be dowloaded at http://www.iflg.uk.com/documents/moving_country.pdf

    Thank you Marilyn for allowing this debate on your blog. Important issues, which need discussing.

    Michael Robinson
    The Custody Minefield

  11. MIchael Robinson says:

    Also worth mentioning:

    ‘Between 30th June and 2nd July 2010 over 150 leading family law specialists from 18 jurisdictions met in London at the Centre for Family Law and Practice, London Metropolitan University, to discuss the three conference themes of International Child Abduction, Relocation and Forced Marriage. Delegates and speakers included judges, lawyers, psychologists, academics, researchers, mediators, NGOs, support
    groups, government representatives, and victims. It was one of the most important conferences of recent years concerning international families and especially children.

    It produced Conclusions and Resolutions, published at http://www.londonmet.ac.uk/
    depts/lgir/centre-for-family-law-and-practice

    In summary, in respect of international relocation it endorsed the Washington Declaration of March 2010, stated that relocation outcomes should be determined without any presumption for or against relocation and accepted that an unfettered discretion in the judiciary leads to unpredictability and lack of uniformity in decision-making.’

    With 90% of relocation cases currently granted,no appeals upheld against LTR, and the distress argument in reality the trump card, one can only hope that judicial discretion in this area is significantly curtailed.

  12. Mr BD says:

    Dear Marilyn

    Thank you for your article.

    With regards to the Washington Declaration, it would be wise for us to consider the highly influential position of Lord Justice Thorpe (Head of International Family Law, and architect of Payne). Writing in June 2010 Family Law (at p 565), Thorpe says that if England were to subscribe to the Declaration, it would represent a significant departure from English relocation law principles. He also accepts that it is not difficult to argue for a reappraisal of relocation law, given the significant changes in parenting patterns which have undoubtedly occured since the time of Poel in 1970.

    With regards to the position of the President, Sir Nicholas Wall, we ough to consider that, in his reserved judgment of Re D (Children) [2010] EWCA Civ 50, Wall stated:
    “As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.”
    He had “no doubt” of the “compelling” arguments for a review of Payne. The problem for him was to find the “right” case. If he had found such a suitable case, he would have given his permission for the the Supreme Court to reappraise Payne.
    Wall reserved judgment in Re D to give himself three weeks to read the dozen or so scientific research documents which had been exhibited at the court of first instance in September 2010 (and which subsequently featured in The Custody Minefield’s Relocation Report of December 2010).

    In another eponymous judgment, Re D (Child) [2010] EWCA Civ 593, Wall stated:
    “…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.
    The adjective “powerful” is Wall’s.

    The view of the Ministry of Justice regarding Payne will hopefully be of interest.
    In reference to Re D (Child) [2010] EWCA Civ 593, Lord McNally, Minister of State responsible for Relocation Law, stated in a letter to me in December 2010:
    “The President (Wall) acknowledged that Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent”.

    In Re W (referred to in the original article), it is plain that Wall’s 2011 position vis-a-vis Payne appears to be remarkably different from his 2010 position. Naturally, we are left wondering why this might be so!

    In addition, in Re W, Wall appears to deny the very existence of the extensive scientific evidence and research – presented to him in full in Re D (Children) [2010] EWCA Civ 50 -which had caused him to state that the case against Payne was “compelling”.
    Instead Wall now prefers to support the call from the researcher, Prof Freeman, for more research.

    However, when it suits him, Wall is able and willing to make what are essentially psychological and sociological determinations in the complete absence of any scientific evidence or research. Where is the scientific evidence, for example, to support his assertion in Re W that a meaningful, wholesome and loving parent/child relationship can be facilitated by means of Skype?

    In summary, there appears to be a profound illogicality in Wall’s treatment of scientific evidence.

    The gravamen of the case against Payne v Payne is actually very simple to understand. When determining the ‘paramount interests’ of the child, should the judiciary base its judgments upon readily-available, extensive, irrefragable, independent and corroborating, contemporary scientific evidence, or, instead, upon un-scientific judicial suppositions, originally pontificated upon in 1970? The colloquial term, ‘no-brainer’ springs immediately to mind!

    To quote Sir Nicholas Mostyn of the High Court, relocation law must urgently “bring into full account” the “emerging body of significant research in various jurisdictions” (Re AR (A Child: Relocation) [2010] EWHC 1346). Can anyone reasonably argue against Mostyn’s recommendation?

    Thank you
    Mr BD (litigant-in-person father in Re D (Children) [2010] Civ 50)

  13. Marilyn Stowe says:

    @Michael Robinson: I think there is a real danger in your position that a trans national child will not grow up with a true sense of his own complex identity, who he really is, where he is really from, what both his nationalities,cultures in reality are.
    It isn’t fair to deprive a child of half his identity.
    What you are saying in such cases isn’t protecting a child at all.
    I think there is every chance that the children of stuck mums will when they are older, bitterly resent their fathers for lost childhoods and may end up rejecting their fathers, who they feel deprived them, unfairly of a complete childhood.
    We haven’t even considered the children of mothers who follow their spouse abroad for the job. Then find when he leaves them, they are well and truly stuck too with their children.
    Each case revolves on its own facts. I don’t agree therefore that rigidity brings fairness and justice with it. Quite the opposite in many cases. I do support the Washington Declaration, who could sensibly not do so, and I do support the discretion of our judiciary. I don’t support gloss on a statute where none was intended.
    (That is something incidentally also for the internal relocation post tomorrow.)
    Many thanks for your comments.
    Marilyn

  14. Marilyn Stowe says:

    Dear Mr BD,
    My reply above was addressed to Michael Robinson. Your comments had not been posted whilst drafting my reply.
    Regards
    Marilyn

  15. MIchael Robinson says:

    Marilyn,

    Can we not call them simply children, rather than trans-national children. They’re children with two parents. Nothing is stopping them holidaying abroad and visiting more distant family members, and both parents sharing their culture. Foreign foods can be cooker, languages learned, and vacations taken. I have not suggested that a child should not know both cultures, just that they do not need to be permanently removed from the UK to achieve this.

    My apologies, but your argument also suggests that any parent who does not relocate back to a country of birth is inflicting harm on their child by not relocating? It doesn’t stack up.

    Similarly, is it not likely that the children will also bitterly resent the mother’s for removing them to another part of the world? They’ve not just had their relationship with their father/paternal (and sometimes) maternal grandparents severed or diminished, but lost friends and the other half of that culture with which they were most familiar. It’s a balancing exercise, and I cannot see you presenting any part of the other argument which concerns me a little. Isn’t it a parent’s role to protect the children from such antipathy towards the other parent? As adults, shouldn’t we manage our emotions, rather than inflict them on children?

    In answer to the question you pose, the importance of the father child relationship in welfare terms has significantly increased as the level of father involvement in childcare has grown. In early 1970, I might have agreed with you. The greater the level of involvement and bond, the higher the risks of psychological harm when the child is removed from that parent. In the 1970s, the level of father involvement in day-to-day care was small. In this century, it has increased nine-fold to be only (on average) 15 minutes less per day than mother involvement (source Equal Opportunities Commission, 2008).

    Your arguments rely on the child needing to be more robust than the parent, and the courts hold to a supposition that women are so emotionally fragile that the entire gender are guaranteed to suffer such disappointment at refusal of an application that it will cause their ability to be an adequate parent. Many women I know find this quite patronising (including within the legal profession).

    I have never suggested all applications should be refused, just that the basis for making decisions in the courts should be on child welfare grounds and according to evidence (rather than unsupported opinion).

    The problem is that rigidity does exist in our current legal system. That rigidity comes from ‘binding precedent’, which the lower courts have no choice but to follow, and Thorpe’s out-of-date view of the family, and patronising view of mothers as emotionally inferior to men.

    Michael Robinson

  16. MIchael Robinson says:

    Marilyn – typos removed :o),

    Can we not call them simply children, rather than trans-national children. They’re children with two parents. Nothing is stopping them holidaying abroad and visiting more distant family members, and both parents sharing their culture. Foreign foods can be cooked, languages learned, and vacations taken. I have not suggested that a child should not know both cultures, just that they do not need to be permanently removed from the UK to achieve this.

    My apologies, but your argument also suggests that any parent who does not relocate back to a country of birth is inflicting harm on their child by not relocating? It doesn’t stack up.

    Similarly, is it not likely that the children will also bitterly resent the mother’s for removing them to another part of the world? They’ve not just had their relationship with their father/paternal (and sometimes) maternal grandparents severed or diminished, but lost friends and the other half of that culture with which they were most familiar. It’s a balancing exercise, and I cannot see you presenting any part of the other argument which concerns me a little. Isn’t it a parent’s role to protect the children from such antipathy towards the other parent? As adults, shouldn’t we manage our emotions, rather than inflict them on children?

    In answer to the question you pose, the importance of the father child relationship in welfare terms has significantly increased as the level of father involvement in childcare has grown. In early 1970, I might have agreed with you. The greater the level of involvement and bond, the higher the risks of psychological harm when the child is removed from that parent. In the 1970s, the level of father involvement in day-to-day care was small. In this century, it has increased nine-fold to be only (on average) 15 minutes less per day than mother involvement (source Equal Opportunities Commission, 2008).

    Your arguments rely on the child needing to be more robust than the parent, and the courts hold to a supposition that women are so emotionally fragile that the entire gender are guaranteed to suffer such disappointment at refusal of an application that it will cause their inability to be an adequate parent. Many women I know find this quite patronising (including within the legal profession).

    I have never suggested all applications should be refused, just that the basis for making decisions in the courts should be on child welfare grounds and according to evidence (rather than unsupported opinion).

    The problem is that rigidity does exist in our current legal system. That rigidity comes from ‘binding precedent’, which the lower courts have no choice but to follow, and Thorpe’s out-of-date view of the family, and patronising view of mothers as emotionally inferior to men.

    Michael Robinson

  17. Reader says:

    Every family situation is indeed different. In the family mentioned in the first story, there were extenuating substances to the relocation fail, which were omitted for reasons of privacy and simplicity. The first father had acceded to the move, also believing that the new location would be a safer place for the children to live.

    The movement to promote shared parenting as a legal presumption is spearheaded by high-profile men (successful globetrotters, for instance), who often misspent their pre-activism family life and only launched themselves into a children-need-fathers campaign once the mother became fed up with the lack of support and left the relationship. It is only then that they summon the frightening spectre of a fatherless child, to ensure the mother’s life remains slaved to their own whims. Surely that conduct of the parents which contributed to the breakup in the first place should be taken into account, to ensure that what constitutes mere expedience in a parent’s sense of responsibility is not rewarded by the courts, in the mistaken belief that shared parenting status quo setups are always the best for the children.
    http://www.nccps.org.au/shared_parenting_docs/shared_parenting-the_myth.html

    There are many pressure groups out there such as Mr. Robinson’s which, if they fail to identify themselves outright as fathers’ rights groups, purport to be shared parenting information resources. Being on the receiving end of their admirably persistent argumentation, and reading comments left on blogs by their members, will yield a crystal-clear picture of their ideology and motivations.

  18. Michael Robinson says:

    Just to correct Reader’s assumption.

    I do not head a father’s rights group. Most of my work is involved in providing family law information to parents. The main website received over 50,000 visits in the first the months of 2011.

    There is a clearly acknowledged problem with relocation law, with members of the judiciary, legal profession and MPs sharing my views. The issue is one of child welfare.

    I have never said that shared residence is always in children’s best interests. There will be times when sole residence is more appropriate when there are issues of proven risk.

    Were fathers rights held above child welfare, I would campaign on that issue. If there was bias in the system in favour of fathers, to the detriment of children, I would be vocally opposed to it.

    My arguments are supported by a substantial body of research (and quite a lot of it published by women). Two of the high profile members of the legal profession who have criticised the guidance in Payne are also women. The MP who hosted the event of Relocation at Westminster last year who invited me to talk was also a woman. Female MPs signed EDM373 in 2009 calling for the better protection of child welfare in relocation cases. No doubt some of the experts from 50 countries who came up with more child focused guidance were also women too.

    Similarly, the main proponents of the guidance in Payne are currently male – Wall, Thorpe and Wilson.

    No-one is suggesting they are patsies to a feminist lobby group. Simply that their thinking is based on an out-of-date view of family life which fails to take into account societal change and expert thinking. Times have changed, and the law needs to develop to reflect societal change. I believe Thorpe himself once said this.

    It is hard to comment further given your own anonymity Reader, but I am sure your own motives are genuine.

    Michael Robinson

  19. Mr BD says:

    Dear Reader
    I would urge you to consider the child welfare arguments purely on their own merit, rather than through the potentially distorting lens of any suppositions you may have concerning the characters and motivations of the people presenting the arguments.
    Thank you
    Mr BD

  20. JamesB says:

    I agree with Michael and Marilyn. In an ideal world the parents should work together to do the best they can. However, when this is not possible, then there is little scope for compromise. Judges I think should consider 1, where the children go to school, and 2, what happens with their holidays, and enforce their bits of paper.

    As for precidents, I do think payne v payne is outdated and not useful. Wish I had something more positive. Seems to be every case is judged on its merits. Seems to be, the one who can spend the most on lawyers wins.

    If Cafcass (or the CWO) were better and more professional, then that might be a way ahead. As has been said many times though, you have failed as a parent if you end up going to court on the children or the divorce. Some people do it better than others though, and I am grateful that my ex did respect the children and me enough not to relocate to Australia where her Mum and sister are.

  21. Mr BD says:

    An open letter from the litigant-in-person father of Re D (Children) [2010] EWCA Civ 50

    In the “postscript” of Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall, President for the Division of the Family, made reference to my case, Re D (Children) [2010] EWCA Civ 50, as follows:

    128. I fear that too much weight may have been given to some words of mine spoken in a judgment which I gave in an application to this court for permission to appeal in a relocation case. Whilst I do not resile from most of what I have said, I am of the clear view that undue prominence has been accorded to Re D, in which I refused a litigant in person permission to appeal against a relocation order, and in which I went out of my way to explain in detail to him why, in my judgment, his application had to be refused.. During the course of my judgment, I said: – “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.”

    May I respectfully remind Sir Nicholas of paragraph 2 of his judgment in Re D:

    2. I heard oral argument from the applicant in person (assisted by his McKenzie friend) on 20 January 2010. The applicant read to me a detailed submission which he had prepared, and produced a substantial bundle of documents which, in the time available to me, I had not had the opportunity to read. I therefore decided that the fairest way of dealing with the application was to reserve judgment, both in order to reflect carefully on the case and to give myself time to read all the material which the applicant had provided. This I have now done.

    Sir Nicholas eventually pronounced judgment in Re D on 9 February 2010. He gave himself three weeks in order to “reflect carefully” on the arguments, and to read the extensive and detailed body of scientific child-welfare evidence and research which I had exhibited at my final hearing in September 2009 (most of which subsequently appeared in The Custody Minefield’s Relocation Reports). Re D was not an immediate, ‘ex tempore’ judgment. Plainly, these were not merely “some words of mine spoken in a judgment”, as Sir Nicholas now puts it. They were carefully considered words, and Sir Nicholas specifically released Re D into the public domain in order that the legal profession could take due note of his proclamations.

    Sir Nicholas went on to give a public interview in August 2010, in which the following question was posited:

    “In light of a) your comments in Re D, b) the Washington Declaration c) the new research from Dr Marilyn Freeman and Professor Parkinson and now d) the comments of Mostyn J in Re AR, where are we now on international child relocation? Is it still a question of finding a rich or tenacious (or both) litigant to push the right case to the Supreme Court before any effective review of Payne v Payne can take place?”

    Sir Nicholas answered as follows:

    “As I said recently in Re D [2010] EWCA Civ 50 (which I am delighted to see that you have all read) there is a perfectly respectable argument for the proposition that
    Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent. However, all relocation cases are (1) very difficult; and (2) highly fact specific. Re D was plainly not the case upon which to base a re-appraisal of Payne. Furthermore, as I also made clear in Re D, we operate a doctrine of precedent and it will be either for the government to change the law or for the Supreme Court to reconsider the issue in a suitable case. I do not think that a litigant would necessarily have to be either rich or tenacious to get to the Supreme Court…”

    In August 2010, therefore, Sir Nicholas was “delighted” with the attention, weight and prominence being accorded to his pronouncements in Re D.

    However, a mere eight months later, he now says that “too much weight” and “undue prominence” have been accorded.

    What is his explanation for this obvious change in opinion? Is Sir Nicholas attempting to down-play the significance of his criticism of Payne v Payne in Re D and, if so, why?

    Subsequent paragraphs in Re D read as follows:

    34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard…

    35. In my judgment, this case is not the right case for a challenge to Payne v Payne. In the first place, on the facts, the respondent makes a powerful case for relocation. Secondly, there is currently no legislation requiring a different approach in place, with the consequence that were this case to go the Supreme Court it is probable that – were the Supreme Court to take the view that insufficient consideration had been given to the harm likely to be suffered by the children by relocation and alteration of their current way of life – the Supreme Court would order a re-trial, rather than saying that the judge, in the exercise of her discretion, was plainly wrong. In my judgment, it is contrary to the interests of the children to impose a fourth hearing on this family.

    It is therefore very plain that – in February of last year, at least – Sir Nicholas was firmly of the mind – and had “no doubt” – that there was a “compelling reason” for a review of Payne to be heard by the Supreme Court. The only obstacle appeared to be the need for him to find what he referred to as the “right case”. The plain conclusion to be drawn from Re D is that, if Wall had been presented with a suitable case, he would indeed have given the necessary permission for it to progress to the Supreme Court. The Court of Appeal is the only route to the Supreme Court, as Sir Nicholas himself made very clear in Re D. To date, no such permission has been given to any Relocation case.

    Sir Nicholas has never given any indication as to what he would consider to be a ‘suitable’ case, although it is fair to surmise that the factor of delay is pivotal. Indeed, this was a major reason given by Sir Nicholas for refusing to grant permission to appeal in Re D (see Paragraph 35 above).

    In addition, quoting Sir Nicholas in Re W:

    11. … in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.

    However, significant delay is, of course, an inevitable consequence for any case to progress to the Supreme Court (to say nothing of the associated Dickensian costs, which are beyond the means of all but the wealthiest of litigants). On the ground of delay alone, therefore, it seems highly improbable that the Court of Appeal would permit any Relocation case to progress to that higher court. The deleterious consequences for hundreds of children as a result of this ludicrous situation ought to be obvious to everyone.

    The afore-mentioned conclusion regarding Re D is re-iterated by Lord McNally, (Minister of State at the Ministry of Justice) in his letter to me (via my MP), dated 22 December 2010. I quote:

    “The President of the Family Division has indeed signalled that if a suitable… case were to be appealed to the Supreme Court this might well result in a reappraisal of the principles set out in Payne v Payne.”

    In the same letter, Lord McNally refers to Sir Nicholas’s criticism of Payne in a second eponymous Relocation case (not to be mistaken with my own case) Re D (A Child) [2010] EWCA Civ 593 as follows:

    “The President acknowledged that…Payne v Payne…places too great an emphasis on the wishes and feelings of the relocating parent (Paragraph 4):

    4. “…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.

    In this second judgment, Sir Nicholas describes the case against Payne as being “powerful”. Would Sir Nicholas now have us believe that “too much weight” may also be erroneously accorded to this second judgment, and is he fearful that “undue prominence” may also now be ascribed to it?

    Or is it, instead, the case that, contrary to his claim, Sir Nicholas is indeed now seeking to “resile” from his carefully considered criticism of Payne v Payne (as expressed by him in at least two of his judgments in 2010)? And, if so, what are the reasons for such a volte-face?

    In his most recent judgment, Re W, Sir Nicholas supports the call from the researcher, Prof Freeman, for yet more research (see paragraph 129 below). Remarkably, Sir Nicholas now appears to deny the very existence of the extensive and irrefragable scientific evidence and research, which had been presented to him in full in Re D. Evidence which he had read over the course of three weeks; evidence which he had described as being “compelling”; evidence which had led him to make his public critique of Payne v Payne in two judgments; evidence which now appears to be no longer of any importance to him.

    Does Sir Nicholas really need to wait for yet more research, when the existing research has been so “compelling” for over a year? How much evidence does he need?

    Interestingly, Sir Nicholas is very able and willing to make what are essentially psychological and sociological determinations in the complete absence of any scientific evidence or research. Where is the scientific evidence, for example, to support his assertion in Re W that a meaningful, wholesome and loving parent/child relationship can be facilitated by means of Skype?

    There appears to be a profound illogicality in Sir Nicholas’s treatment of scientific evidence and research.

    The beauty of Science is that if a theory is falsified by evidence it is immediately cast out by the scientific community. The ugliness of Law is that if a law is undermined, discredited and highly criticised (even by the President himself), it nevertheless remains fully in place, wreaking harm to hundreds of children.

    In the same judgment, Re W, Sir Nicholas appears to abdicate responsibility for his judge-made relocation law (Payne v Payne) and ‘passes the buck’ to Parliament. I quote:

    129. “It further occurs to me that unless and until we have the research identified by Professor Freeman, and unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Payne v Payne.”

    In contrast, however, the view of the Ministry of Justice concerning Relocation law is clearly set out by Lord McNally in his letter to me of December, as follows:

    “The Children Act 1989 already provides statutory protection to safeguard the welfare of children in cases of Relocation…the Act clearly requires the court to make the welfare of the child its paramount consideration…”

    In other words, Lord McNally places responsibility for Relocation law firmly in the lap of the judiciary. Lord McNally also stated that it was for David Norgrove of the Family Justice Review to make recommendations regarding Relocation law (and he kindly confirmed to me that the latest Custody Minefield Report had been passed to the FJR panel). However, as we are all aware, Mr Norgrove declined to make any recommendations whatsoever concerning Relocation law in his recent Interim Report.

    So we have gone full circle. No one person in a position of power appears able or willing to act. Each passes responsibility to another. Meanwhile, hundreds of children continue to be removed from their fathers, their extended families, their schools, their friends, their cultural environment and their general way of life. Children are expected to exhibit steely resilience in the face of such tremendous upheaval. In contrast, adult mothers are not expected to have any such resilience were their applications for LTR to be refused. These expectations are scientifically, morally and socially groundless.

    The gravamen of the case against Payne v Payne is actually very simple to articulate. In determining the ‘paramount interests’ of the child, should the judiciary base its judgments upon readily-available, extensive, irrefragable, independent and corroborating contemporary scientific evidence and research, or, instead, upon un-scientific and plainly out-of-date 1970’s ‘common sense’ assumptions concerning the emotional fragility of the ‘weaker sex’, and the un-importance of a father in the development of a child? The colloquial term, ‘no-brainer’ springs immediately to mind!

    Furthermore, it cannot be enough for a judge simply to declare that he has considered the ‘paramount interests’ of a child. If so, a judge would be quite at liberty to order that a child be flogged prior to its being removed to Australia as long as he remembered to ‘tick the box’ and declare in his judgment that he had carefully considered the child’s ‘paramount interests’, in accordance with the Children Act.

    When considering a child’s paramount interests – in other words, its psychological, developmental and educational well-being – the judiciary must be made to give full weight and consideration to the plethora of contemporary psychological and sociological scientific evidence and research.

    To quote Sir Nicholas Mostyn of the High Court, Relocation law must “bring into full account” the “emerging body of significant research in various jurisdictions” (Re AR (A Child: Relocation) [2010] EWHC 1346). Can anyone reasonably argue against Sir Nicholas Mostyn’s recommendation? That urgent recommendation was made in June 2010. It appears to have fallen on deaf ears. Any further delay in a reappraisal of Relocation law would be an abominable indictment, both of our Government and particularly of our judiciary.

    Yours most sincerely
    Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)

  22. Marilyn Stowe says:

    Thank you very much for what you have written. I am so grateful and deeply appreciative that you and Stuck Mum and all the other commentators have taken the time to write so powerfully, and persuasively from all your respective positions.
    When the series began I hoped it would attract a serious, meaningful debate and it has, exceeding all expectations.
    Thank you to everyone,
    Marilyn

  23. Nick Langford says:

    This is indeed a fascinating debate, to which I have come rather late. I am particularly moved by the posts from Mr BD which must have been difficult for him to write. They give rare insight into the system from within; Wall’s notorious U-turn has yet to be explained. I am also impressed by the views of Michael Robinson, for whom I have always had great respect. I agree with him that we should speak of children rather than trans-national children – surely they only become trans-national once leave to remove has been granted?

    I shall offend the anonymous Reader by declaring that, unlike Michael, I am a representative of what is commonly called a fathers’ rights group; we would prefer to call ourselves a civil rights group, and I would note merely that we give help and support to many women as well as men. Like Michael, I have written a handbook for LIPs, and I hope that it can be of use to anyone, regardless of gender. It seems to me more valuable that a debate like this should engage with facts and evidence rather than preconceptions.

    What strikes me, as a non-lawyer, is that – perhaps more than in any other area of family law – the slavish observance of Payne has come to be more important than the welfare of the child. To any non-lawyer, the obvious question about Payne is, ‘what happened?’ What was the outcome of the case; did Thorpe’s decision protect the child’s best interests? Unusually – because the courts don’t care to record outcomes – we know what happened in Payne. We know from Philip Cayford, the father’s barrister, that the unfortunate girl lost all contact with her father: Thorpe failed to protect her best interests, his judgement was the wrong one. As a non-lawyer, the continuing use of Payne as a precedent of what to do in such cases is utterly perverse; it should rather be held up as a warning of what can go wrong.

    This raises a wider question: is the court’s paramount concern to observe precedent, or to protect the best interests of the child? Such a naïve question, I know, can only be asked by someone who isn’t a lawyer.

  24. Marilyn Stowe says:

    Thanks Nick.
    I don’t agree with you and no doubt you would expect that. I think our Judiciary in these cases have the toughest of jobs and they do what they believe is in the best interests of the child. They are however damned if they do and damned if they don’t. The judiciary can never win. But I don’t believe for one moment they are acting in anything other than the best interests of the child having heard all the evidence.
    Marilyn

  25. Mr BD says:

    A summary of the arguments against Payne v Payne (currently before the ECtHR)

    The application of the principles, suppositions and ideology of Payne v Payne, both by the judge of first instance and by the Court of Appeal (it also being bound by its own precedent):

    a) Affords too great a weight to the wishes and feelings of the applicant parent, notwithstanding the sincerity and ‘genuineness’ of his/her motives (mercy killers have sincere and genuine motives)

    b) Affords too great a weight to the well-researched plans of the relocating parent

    c) Relegates the harm done to the child due to a permanent breach of its ‘meaningful’ relationship with the left-behind parent

    d) Fails to afford sufficient weight to the child’s wishes and feelings

    e) Fails to afford appropriate credence or weight to abundant and irrefragable scientific research and evidence demonstrating the deleterious psychological, developmental and educational consequences a child is likely to experience in the absence of a ‘meaningful’ relationship with both its parents

    f) Fails to give appropriate credence or weight to the scientific evidence demonstrating that a ‘meaningful’ and wholesome relationship cannot be adequately maintained on the basis of infrequent contact in motel rooms or via electronic media such as Skype

    g) Affords too great a weight to the un-scientific and un-proven supposition – pontificated upon in the case of Poel in 1970, but still remaining the legal bedrock of relocation law – that a parent’s disappointment and frustration at a refusal of his/her application would impact upon him/her so as to cause the child significant medium to long-term harm. There remains no evidence whatsoever for this 40-year-old supposition

    h) Fails to consider that the happiness and well-being exhibited by a child as a direct consequence of its remaining in a meaningful relationship with both parents and in its familiar environment will, in and of itself, likely generate considerable happiness and contentment in the so-called ‘primary carer’ (happy child, happy parent)

    i) Fails to consider that, if a primary carer, initially wishing to relocate, is then made fully aware of the scientific evidence which plainly demonstrates the long-term benefits to their child from its remaining in a meaningful relationship with both its parents, s/he would either withdraw the application, or would be far less disappointed or devastated by a refusal of the application, realising as s/he would that remaining in the UK would be serving the child’s best long-term interests (what good parent does not happily and proactively make numerous sacrifices for the benefit of their child?)

    j) Fails to acknowledge the benefit to a child of maintaining the stability and familiarity of its social, cultural and educational environment, particularly at a time when that child is faced with having to deal with the trauma of the separation of its parents

    k) Fails to take into proper account the major societal shifts in the organisational dynamics of modern family life which have undoubtedly occurred since 1970, in particular, the involvement and thus the importance of a father in the psychological, sociological and educational development of his children. In Payne, LJ Thorpe stated that he had no evidence to support this assertion. That evidence now exists

    l) Fails to consider that the medium to long-term harm to a child as a direct consequence of overseas removal is likely to be more significant than any short-term harm resulting as a consequence of the delay inherent in proceeding to the Supreme Court

    m) Fails to consider that a child’s human rights and ‘paramount interests’ cannot be best served by permitting a legally-untrained and emotionally-involved litigant-in-person father to formulate and present a legal case on its behalf. What adult (or judge!) would accept being legally represented in court by a layperson?

    n) Fails to appreciate that, in hearing Ancillary Relief matters separately and at a later date, little or no detailed consideration is given to the important issue of whether or not overseas contact orders are affordable and achievable in practice

    o) Places an unjustified emphasis upon the ‘facts’ of a case. This fails to appreciate that:

    i) The suppositions and ideology of Payne steer the judiciary towards particular ‘facts’ and away from other ‘facts’. In other words, they focus only on those ‘facts’ which seemed relevant when the case is viewed through the distorting ‘lens’ of Payne
    ii) It is usually only these particular ‘facts’ which appear with any prominence in judgments
    iii) The unwarranted weight and erroneous interpretation ascribed to these particular ‘facts’ by Payne ultimately determines the judgment

    For example, Relocation cases often contain numerous and detailed ‘facts’ pertaining to the appearance and demeanour of the applicant parent in the witness stand. These ‘facts’ are given great weight by Payne and the interpretation placed upon them by Payne is that the children will experience long-term harm as a result of the applicant parent’s disappointment. Judgments, therefore, are arrived at primarily as a consequence of the application of the principles and ideology of Payne, and not, as is constantly asserted by the Court of Appeal, as a consequence of the ‘facts’ per se.
    Other ‘facts’ are given little weight by Payne, and may not even be recorded in the judgment. For example, facts concerning the child’s anxieties about having to relocate overseas; its preference to remain in the UK and in contact with both parents, to remain at its school and in contact with friends; the applicant’s nexus of friends; the applicant’s general resourcefulness, work experience in the UK and so on. These and many other ‘facts’ are either absent from judgments or are given little weight precisely because the suppositions and ideology of Payne deemed them to be of little or no importance

    p) Completely fails to understand or appreciate that a judgment in favour of removal may very well be considered to be ‘powerful’ but ONLY if it is assessed using the 1970’s principles, directives and ideology of Payne.
    One might consider a judgment to imprison a black man for entering a ‘whites only’ establishment to be equally as ‘powerful’, if one makes ones assessment using the principles, directives and ideology of a 1970’s South African Apartheid Law!
    That is precisely the error being made by our Court of Appeal.
    It believes that it is acting in the ‘paramount interests’ of the child, just as South African Appeal judges probably believed that they were acting in the best interests of South African society.

    Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)

  26. Nick Langford says:

    Wouldn’t it be nice to see the establishment engage with each of these points intelligently and honestly, rather than say merely, I don’t agree? Most of these points can be applied more widely to other aspects of family law; they are well argued and aren’t going to go away. I would also add a point q that the courts do not look at the outcomes of granting leave to remove to see what happens to the children and their families as a result. Those findings should then be fed back into the decision making process.

    While Wall awaits further pronouncements from Marilyn Freeman, I’m reminded of Thorpe’s justification for his position by reference to Professor Nigel Lowe (another lawyer, not a child psychologist). But Lowe was himself referring to Thorpe’s earlier judgement in Payne – a very circular argument.

    The casual ‘damned if they do, damned if they don’t’ excuse is often wheeled out in these debates, usually to defend social workers. It seems to be a way of justifying doing nothing to improve the system, a way of saying, well, the system isn’t perfect, but we’re dealing with imperfect material (parents) and we do the best we can in the circumstances, so we can’t actually be bothered to look at ways of improving our performance, because whatever we do we’ll always be criticised. It’s also an excuse not to answer Mr BD’s points despite the time and effort he has put into preparing them (isn’t it ridiculous that I can’t even use his real name, despite the fact that we all here know it).

    The same approach governs the Family Justice Review Interim Report which doesn’t even look at LTR cases, and is happy to state other aspects of the system have universal approval, despite the fact that much of the evidence given to them, well researched and sensibly argued, flatly contradicts that.

    If the head-in-the-sand response is really the best we are likely to get from the family justice establishment, perhaps we’d better hope that the dire warnings of melt-down and collapse come to pass sooner rather than later.

  27. Mr BD says:

    Thnk you. Nick.

    All of the above arguments – with the exception of l), o) and p) – were put to Sir Nicholas in Re D. Points l), o) and p) sprang directly from the judgment.
    In addition, all of the contemporary scientific evidence and research (appearing in The Custody Minefield’s Relocation reports) was exhibited.

    In my view, Sir Nicholas’s response to these detailed arguments and scientific evidence should have appeared in his judgment.

    Your additional point q) is extremely valid. A statistically-significant assessment of outcomes would be very useful indeed. However, as Prof Freeman herself has pointed out, obtaining sufficient and accurate data is fraught with difficulty, and the search for it may keep her employed for years.

    In my view, the sad fact that the father in Payne eventually lost contact with his children does not, of itself, undermine Payne. A sample of one is not statistically significant.

    However, I would maintain that sufficient “compelling” evidence and research already exists. In Re D, Sir Nicholas agreed!

    His recent call for yet more evidence and research from Prof Freeman is, in my view, a delaying tactic and is in breach of the ‘precautionary principle’.

    What did the erudite professor of Law, Prof Freeman, herself make of Re D?

    In a speech to the University of Western Cape Conference on 18 March 2010, she said:
    “…Lord Justice Wall [has] added his qualified support for a review of Payne v Payne…”

    Of course, Sir Nicholas would now disagree with the professor’s assessment!

    Mr BD (litigant-in-person father in Re D)

    NB: the anonymity of my family and I should be fully maintained

  28. Mr BD says:

    District Judge Julie Exton, chairwoman of the Family Sub-Committee of the Association of Her Majesty’s District Judges, provides her analysis of the current debate on Relocation:

    http://www.lawgazette.co.uk/in-practice/benchmarks/parent-residence-orders-and-relocation

  29. Michael Robinson says:

    Marilyn,

    I can assure you, categorically, that the judiciary do not consider all the evidence related to child welfare in all cases, and have no problem being challenged on this point. I have seen a fair number of cases where the child welfare arguments are not commented on in judgment, but Payne v Payne and the distress argument is rigidly applied.

    The distress argument has no evidence in fact. It has gone unsupported by expert evidence for 40 years. The adverse welfare implications of separation from one parent has compelling evidence to support it, but routinely goes unconsidered and uncommented on in the balancing exercise. Wall has said that the guidance in Payne represents a binding precedent.

    I have heard it argued that Butler-Sloss’s list of guidance from Payne ‘squares everything off’ so child welfare is paramount. I have also seen cases where in judgment, the judge states quite clearly that the distress argument has been the central focus of proceedings.

    The distress argument only stands because it is a matter of judicial notice (e.g. the judiciary believe it to be fact, so it is treated as fact). Opinion should not outweigh evidence, but in these cases it does.

    Sorry, but I agree with Sir Nicholas Mostyn, that the application of Payne v Payne by the courts contaminates the purity of the paramountcy principle. In short, child welfare is not the courts paramount consideration… but an unsupported, unproven and out-of-date ideology that has no basis in fact, and is rather condescending towards women.

    I would also like to add my thanks for your allowing this debate to be had on your site, and the way in which the debate has been conducted and chaired.

    Michael

  30. Marilyn Stowe says:

    Michael thank you. You are very kind.
    I am extremely grateful for these posts, and thank everyone who has participated. To anyone who ever feels the need, please feel free to continue to contribute.
    For me what has come overall from readers posts, has been their sadness. The heartache has been graphically, awfully, illustrated.
    I was thinking about some of the posts just this morning as I was writing a birthday card for my son who I wont see on his birthday shortly, as we’re in two different places. He is an adult now, he has grown up in a flash. I dont know where the time has gone. But he is and always will be, my child.
    Its knowing this, that makes me so deeply grateful to all those who, despite their own circumstances, have contributed to these posts in such a decent and exemplary manner.
    Marilyn.

  31. Mr BD says:

    The issue of Payne v Payne (2001) is currently being discussed by barristers at:

    http://ukhumanrightsblog.com/2011/05/22/should-journalists-attend-court-part-2/comment-page-1/#comment-5397

    The more open and rational debate, the better.

    Thank you

    Mr BD

  32. Mr BD says:

    The latest developments in Relocation Law – including the position of Lord McNally, Minister of State at the Ministry of Justice, and of Sir David Norgrove of the Government’s Family Justice Review – can be found at http://thecustodyminefield.blogspot.com/2011/06/leave-to-remove-news.html

    Thank you

    Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)

  33. Lukey says:

    “Mr BD”, I read your link, and it is extraordinary as you say, Sir Nicholas Wall disagrees with his own views !

    The question has to be asked, is he the right sort of person to be judging anything ?

    It seems to me it would better if Sir Nicholas Wall found himself alternative employment….

  34. Mr BD says:

    Thank you, Lukey.

    Of course, it is not so unusual for one person – Sir Nicholas Wall, in this case – to make a mistake. Errare humanum est.

    What is truly shocking, however, is that the legal profession are so in awe of their President, so deferential to his authority (and, perhaps, so afraid of courting his displeasure) than very few of them are prepared to put their head above the parapet and speak out in support of child welfare in Relocation cases.

    For example, see the barristers’ sycophantic comments in support of Sir Nicholas (UK human rights link above), and Judge Exton (see law gazzette link above) stating that Sir Nicholas had “conceded” that too much attention had been paid to his comments in Re D! …”Conceded”!!! A more appropriate adjective would have been “claimed”!!!

    It goes to show that there is very little genuine honesty in the law!

    My open letter also features at:

    http://www.equalparentingalliance.org/2011/06/leave-to-remove-law-who-is-pulling-the-strings.html

    http://www.relocationcampaign.co.uk/11.html

    http://news.realfathersforjustice.org/index.php?itemid=537

    I have, of course, also sent it to “legal” family law blogs, but none of them has had the inclination to publish it. After all, Sir Nicholas Wall is a very powerful man and, perhaps, anyone wanting to ascend the greasy pole of the legal profession would be well advised not to upset him!

    Mr BD

  35. Marilyn Stowe says:

    Well Mr BD, as you know, I am one of the recipients of your open letter and declined to publish it. Let me explain why.

    First it added nothing further to what you have already stated.

    Second it coincidentally arrived at exactly the same time as ‘Stuck Mum’ sent me her update, which update is in direct contrast to the views expressed by you, and which you will also note has not appeared here either.

    You have both amply had your say and there is no point repeating your opinions. This blog is intended to stimulate fresh debates. There is no way the two of you will ever agree.

    Now please let me also add this. I don’t like your comments about lawyers or the Judiciary and in particular the President, who I believe to be a fair, decent and compassionate man. I have permitted these comments so far to remain because I support free speech and on this blog there are frequently opinions expressed that I disagree with and publish nevertheless.

    But there are limits, and I won’t hesitate to step in if the debate descends further into offensive insults, which are particularly inappropriate in dealing with such serious issues.

    I am a strong supporter of our Judiciary and I have not applied to climb any greasy pole, as you put it. I speak as I find. I know you don’t agree with me, but purely from reading this blog you will know if I don’t agree with an opinion, I will say so.

    I welcome constructive comments, but that’s as far as we are ever going down this path, no matter how badly done by you feel.

    Insulting the Judiciary on my blog is a no no. As is insulting anyone.

    Marilyn

  36. Mr BD says:

    Thank you for your reply, Marilyn.

    I’m very sorry indeed if anything I have written has upset you.

    For my part, any feelings I have concerning my own case are quite irrelevant to the open and rational debate concerning Relocation Law – and whether or not it relegates the harm done to children – and to the tenability or otherwise of the stance of your President.

    My most recent letter does indeed add new information to the debate, including the position of Lord McNally, the Government Minister responsible for Relocation Law, and of Sir David Norgrove, the Chairman of the Family Justice Review.

    Of course, I respect your right to declare your strong respect for Sir Nicholas Wall. That is a fundamental tenet of democratic free speech.

    I hope you respect my right to express my view concerning his contradictory decrees on Payne v Payne, and my view as to why ‘legal’ blogs are reticent to publish anything which might challenge his authority.

    If you can provide any other possible explanation as to why legal blogs are not prepared to air my letter, I am very willing to consider them.

    My motivation is, and always has been, to see a thorough reappraisal of Relocation Law by the Supreme Court, which takes into full account contemporary scientific child welfare research and 21st century shared parenting realities, in order to best serve the paramount interests of children.

    I hope you will agreed that that motivation is a good one. If, in the process, I upset Sir Nicholas, or any of his ardent supporters, then that is to be regretted.

    Thank you for permitting this open and rational debate.

    Best regards
    Mr BD

  37. louise says:

    Mr. BD,

    I have read your letters as posted here and fully understand why any legal blog or reputable site would decline to publish them.
    They are poorly written and disingenuous to say the least. LJ Wall has not contradicted himself or executed a U-turn. Furthermore,your derogatory comments about members of the legal profession are misguided and will do you no favours anywhere.
    I have seen the postings on the UK Human rights blog and it seems to me that several posters (who I assume would be members of the legal profession) explained to you in some detail where you were mistaken. It seems that you have taken little on board.
    Lastly, many in the legal profession have aired their views on relocation and fought these cases in the courts.
    Your approach can only do damage to any cause you espouse.

  38. Mr BD says:

    Hello Louise

    I do respect your personal views – and your absolute right to voice them – although I do find myself agreeing with them.

    The attitude of Mr BD – and whether or not he courts favour – would not play any part whatsoever in the rational analysis of Relocation law by the judiciary and by the Government! …it is not about the personalities and feelings of the people putting forward the arguments…it is about the arguments themselves.

    I would, therefore, urge you to address the arguments which I have put forward.

    I hope we can agree on one thing: that the welfare of children in relocation cases would be best served if the Supreme Court were to thoroughly review Relocation law. Remember, this was Sir Nicholas Wall’s original suggestion in Re D.

    Best wishes
    Bruno

  39. Mr BD says:

    Apologies…

    “I do NOT [sic] find myself agreeing with them…”

  40. louise says:

    Mr.BD,

    I think the owner of this blog has, in common with others, already afforded you considerable latitude. It seems that you go from one forum to another saying the same thing over and over again. When others point out where you are wrong, you move somewhere else, making derogatory remarks about those who have had the patience elsewhere to respond- “sycophantic,” “greasy pole” etc, etc.
    I would suggest that you read and consider the responses you received on the UK Human Rights blog, although I suspect you have simlarly dismissed those posters in what appears to be a pattern of insulting those who highlight the flaws in your approach.
    I note you refer to “legal” blogs and can only assume that the inverted commas are a further slight on the owners and members of the legal profession in general.
    It has been explained to you (repeatedly, it seems) how a review of Payne in the Supreme Court might come about and how it would affect only a minority of cases. It has also been pointed out to you that LJ Wall has not “executed a U-turn” or anything of the sort. You have also been told why your arguments were totally inappropriate in the C.O.A.
    At any point have you considered the position of the primary carer wishing, upon separation, to relocate to her own country and family? I have no doubt that Marylin has good reason not to allow the post from “stuck mother” but think it unfortunate that we have not heard that side of the story.
    It seems that you will listen to no voice of reason and will continue to insult those who are not prey to your folly.
    Lastly, it seems rather suspicious that you are using various forums and “open letters” to advertise what appears to be a commercial site and I am inclined to wonder if that is the real motivation for posting the same flawed arguments (and derogatory remarks) anywhere they will be tolerated.

  41. Marilyn Stowe says:

    Please see the post of 11th April 2011, which was given over to Stuck Mum.

  42. Mr BD says:

    Hello Louise

    I think that perhaps you’re getting a little too personal, and a little too focused on me. Please, bear in mind that it’s not about me! I really don’t think that my character – and what I may have got up to – will be of any interest whatsoever to the readers of this site.

    Please try to remain focused on the arguments, and on the position of those who do have genuine power to shape the future: namely, Sir Nicholas Wall, Lord McNally and Sir David Norgrove. An analysis of their respective positions on Relocation law appear in my letter, including quoted text from their letters. Do you have any views regarding what Lord McNally has written?

    You rightly point out that there was a useful and vigorous debate on the issues of Relocation law on the UK Human Rights blog. People disagreed – that’s the very essence of debate. It’s quite healthy! But it was conducted politely and respectfully. You say that I was “told” that I was wrong – does that mean that the people doing the “telling” are always right?

    Let’s focus on the psychological, developmental and educational welfare of the hundreds of British children who are rountinely removed from their father, their extended family, their friends, their teachers, schools, friends, and from the stability and familiarity of their home country. Why? Because of the over-riding weight given by Payne to the wishes of the relocation mother, who, quoting Sir Nicholas, “invariably tells the court that she will be devastated if she is not allowed to go”.

    We surely ought to focus on what is best for the children, rather than on their parents’ wishes. What are your views on the 15 scientific research papers detailing the harm that befalls children when they are denied a meaningful relationship with both of their parents? What are your views on the analysis of Sir Nicholas Mostyn n Re AR, or of the conclusions reached by Professor Marilyn Freeman?

    The CEO of Families Need Fathers, a very respected Government-funded charity, released the following Press Release today, 29 June 2011:

    ————

    Rise in Child Abductions to Non-Hague Convention Countries Indicative of Wider Failures of the Family Justice System Concerning Relocation

    HAGUE CONVENTION DOES NOT GUARANTEE RETURN: REFORM REQUIRED TO PREVENT MORE CHILDREN LOSING CONTACT WITH THEIR PARENTS

    Families Need Fathers was saddened to see that the number of abductions to countries who have not ratified the 1980 Hague Convention on International Child Abduction has risen from 146 to 161 between 2009/10 and 2010/11. However, it would be wrong to think that the Hague Convention ensures that children can be returned quickly to their home country.

    The approach of the family justice system to abduction and relocation cases is in need of an urgent overhaul if it is to protect the rights of children to maintain meaningful relationships with both parents. Ken Sanderson, CEO of Families Need Fathers, commented, “Child abduction destroys lives. Children are denied the love and support of a parent, and the parent left behind is placed in the intolerable position of not knowing where their children are, whether they are safe or when, if ever, they will see them again. Such abductions cause irreparable harm to individuals, families and their communities.

    Of course, the international community needs to work hard to encourage more countries to sign the Hague Convention and address international child abduction with the urgency it deserves. We would be doing these families a disservice though if we were to consider the current implementation of the Convention amongst states that have ratified the treaty as a panacea to these problems. Relocation cases currently take far too long to be processed, during which time irreparable damage can be done to the parent-child relationship. Additionally, the costs of recovering abducted children are prohibitively expensive for most ordinary people to pursue, particularly where cases are dragged out over months, or even years. Access to justice must be open to all, and not simply those who can afford it.”

    Ken Sanderson continued, “Our own legal system’s approach is in drastic need of an overhaul to prevent the continuing damage of child relocation. This issue goes beyond the Hague Convention. Payne V Payne, the case law which determines the courts’ decisions on relocation cases, gives undue weight to the desire of the parent wishing to move over that of the right of the child to maintain a meaningful relationship with both parents, in breach of the United Nations Convention on the Right of the Child. Indeed, even Lord Justice Wall has stated there is a “perfectly respectable argument” for this proposition. Our approach to relocation is outdated, ill-conceived, and will continue to do significant harm to family life until it is reformed.”

    Michael Robinson of The Custody Minefield said “International parental child abduction is a growing problem. Our experience is that international treaties meant to ensure a child’s return are fine in theory, but in practice, often fail to see a child returned.

    The government is well aware of the harmful impact on children of forced removal abroad, yet fails to address this in the current Family Justice Review. Despite assurances to me from Sir Tom McNally, Minister of State for Justice, that the review would look at this area of law, David Norgrove, the panel’s chair has affirmed in writing that this is not within their remit. The government must stop ignoring significant and identified risks to child welfare from international relocation.

    Whether unlawful child abduction or court approved relocation, the effects on the child are the same. A dramatic change in living arrangements, the loss of contact with one parent and their wider family, change in school and loss of friends are likely to impact on a child’s psychological, emotional and educational development. We presented scientific evidence for this at Westminster last November. The government still does nothing but prevaricate.”

  43. louise says:

    Marylin,

    Thanks for the pointer to “stuck mum’s” post.

    Mr.BD,

    You have said nothing that has not already been addressed (and repeatedly) by others. I will, however comment on the last paragraph of what you have posted as it highlights the flawed reasoning presented in such posts.

    “Whether unlawful child abduction or court approved relocation, the effects on the child are the same.”

    This is a ridiculous assertion. Where court approved relocation takes place, there will be (other than in exceptional circumstances) orders made for contact.
    The relocating parent will frequently be bringing the children to their home country and one half of their extended family.
    The two scenarios cannot be compared in such a desultory fashion and the entire document appears muddled as a result.
    Lastly, there is not any “scientific” research on the issue and despite what you and others assert, you did not present any at Westminister- although you may believe that you did so by a process of extrapolation from other more general research, taken out of context. Nor indeed is there likely to be any as it would need to be examined in relation to other research into the wellbeing of children from similar backgrounds whose primary carer was refused permission to relocate.
    I fear that your understanding of the principles of research is as flawed as your view of the law and its practitioners is blinkered and prejudiced.
    I believe LJ Wall has indicated that such genuinely relevant research would be of interest.

  44. Mr BD says:

    Thank you for your personal views, Louise, which, of course, I must respect.
    Thank you, too, for showing due respect for my views and for those of the CEO of FNF.

    In summary, the arguments, both for and against Payne v Payne, are in the public domain, and independent readers may arrive at their own conclusions, as to whether the continued implementation of Payne “relegates the harm done to children”.

    Also in the public domain (as quoted in my June letter) are the positions of Lord McNally (Justice Minister responsible for Relocation Law) and Sir David Norgrove.

    If and when I receive a response to my June letter from Lord McNally, I shall, of course, publicise it, as I am sure that his position will be of interest to our readers.

    Mr BD (litigant-in-person father in Re D)

  45. Michael Robinson says:

    Louise,

    I believe you’ve accused me of making ‘ridiculous assertions’. Too many leave to remove cases include what turns out to have been a naive belief that contact will continue after relocation. The reality is it often breaks down, and quite rapidly. This is my experience, having had many parents contact me, and also having had a reasonable level of involvement in a good number of leave to remove cases.

    Payne v Payne gave us the current binding precedent, yet as attested by Mr Cayford (counsel in that case) in a recent article in Family Law Week, in that guiding case, the belief that contact would continue was misplaced, and in hindsight, misjudged.

    I appreciate not all within the legal profession are happy with criticism directed at our legal system. That said, many senior members of the legal profession, with extensive experience in leave to remove cases do accept the arguments put forward by me.

    The managing partner of the International Family Law Group cited the ‘scientific evidence’ in my report three times in her speech at Westminster. Your opinion is not universally shared.

    The research points to the impact on children of a diminishing relationship with one parent. It is genuinely accepted that relocation is at the severe end of the spectrum.

    To imply the research findings are irrelevant is comparable to implying that despite it being proven by experts that a child suffers harm from being beaten with a stick, it is unproven that the same child would experience harm by being beaten with a baseball bat.

    To say there is no support at Westminster for a review of the precedent is somewhat inaccurate. I would point you to Early Day Motion 373, tabled last year by David Maclean, then Conservative Chief Whip, my Member of Parliament. I can also assure you that other MPs are supportive of a review.

    Your assertion that Mr BD’s arguments were held in some way as inappropriate in the court of appeal is inaccurate, and not reflected at all by the judgment from that case. Wall accepted the arguments as compelling in the right case. He accepted the argument as perfectly respectable.
    The grounds given for refusal of appeal were simply that a review by the Supreme Court and possible retrial would cause further delay to the relocation, which was held not to be in the family’s best interest. The appeal did not fail on the grounds that the arguments had no merit, rather that because they had merit, a retrial and delay was a possibility.

    I would ask you to consider one further matter. In 2001, Lord Justice Thorpe upheld the distress argument, his view being that the distress caused to a primary carer from having a relocation refused would be so great as to cause the child harm. My view is that the child’s paramount interests should come first before either parents’, and be based on evidence. That said, I would be sympathetic to the primary carer whose plans were affected were her application refused. I wonder if you can find a similar generosity of spirit to consider the position of a left behind parent, and the devastation caused to them by their children being removed abroad. Perhaps a little compassion would not go amiss either. Perhaps Mr BD has a fair right to be critical of common law which is criticised by many who have the benefit of unadulterated objectivity.

    I will let pass the suggestion that Mr BD is simply motivated to advertise a commercial site, and would only comment that the vast majority of information on my site is free. I find it unnecessary that such a suggestion is cast in either his or my direction. Are you suggesting that those in the legal profession or Westminster who cite my report are in somehow part of an advertising team? I do not imply solicitors who express an opinion are motivated by financial gain.

    Michael Robinson

  46. Chambers says:

    There is an unspoken prevailing view in the judiciary, Children’s Services, CAFCASS etc – That by supporting the mother one is supporting the child.

    Payne v Payne is a continuation of this discredited approach to children’s needs.

    Baby P.; Karen Matthews and a long list of other high profile failings with Social Services and other authorities show these agencies were more interested in supporting the mothers rather than the children.

    P v P is about supporting the primary carer (the mother), rather than the child.

    Until the judiciary put children first and foremost, rather than just talking about it. Children’s needs and welfare will continue to be secondary to mothers.

    Leave to remove and internal relocation being prime examples of how ‘actions’ by the Courts are about supporting mothers and ’empty words’ are all that is left regarding the welfare of children.

  47. Chambers says:

    Typo sorry:

    Until the judiciary put children first and foremost, rather than just talking about it. Children’s needs and welfare will continue to be secondary to mothers ‘wishes’.

  48. louise says:

    Michael Robinson,

    One further point where I believe you are clearly mistaken:

    You state that relocation is at “the extreme end of the spectrum.” This is yet another rather wild assertion. I know of parents who have substantive contact with their children, even though the primary carer has relocated.
    In contrast, I know of parents (of both genders) who, despite fighting through the courts for contact, have none even though their children are a short drive away. I would be more inclined to regard those cases as the extreme end.
    If relocation were indeed at “the extreme end of the spectrum,” one might similarly extrapolate validation for the distress argument from, for example, the Sturge-Glaser report.
    The rest of your post is merely repetition of issues addressed elsewhere and again, I can see no reason for this other than self publicity and free advertising.
    I am not unsympathetic to fathers’ rights activists but feel that you are somehow blind to the realities of the decisions judges are forced to make in these cases.

  49. Chambers says:

    Louise,

    Its disturbing that mother’s rights activists like yourself always dismiss any concerns for children’s welfare as secondary to mothers wishes, even when the evidence in peer-reviewed research is available showing the real harm to children.

    Children’s rights activists like myself want to see children’s needs put before mother or fathers, which simply does not happen generally.

    I know of many cases where a mother (a few fathers) has gained the blessing of the Court based on the flimsiest of proposals and a history of hostility towards the children/s contact with another parent, to relocate abroad or within England & Wales.

    The result more often than not is the children/s relationship with their other parent is diminished quickly and eventually terminated due to the mothers (generally) continuing hostility and unassailable position as primary carer.

    I am sure if fathers were in the same privileged position as mothers are, children would suffer similarly at the wholesale loss of mothers in their lives under the present system. In fact historically that happened when fathers were automatically the guardians.

    Only a move to putting children’s needs to have meaningful relationships with both their parents above a parents whims is going to stop many children losing a parent, extended families and being dragged from pillar to post by a selfish and generally bitter non-child focussed parents.

    The present situation with Payne v Payne is appalling and puts children’s needs and emotional well being a poor second to the primary carer’s wishes.

  50. facing the challenge says:

    I am about to embarke on this process and cannot describe the levels of anxiety I am experiencing. My ex has only written contact on the grounds they are a convicted sex offender. My new partner has been granted PR to the children.
    That my ex has the right to interfere with my life is incomprehensible. The suggestion they are acting in the interests of the children is ridiculous as their offences were aginst children. Can someone please explain to me why I have to endure the distress of this process having already endured the distress of my ex being a coonvicted child sex offender!

  51. louise says:

    Chambers,

    Firstly, I am not an “activist” on behalf of either gender. Secondly, the paramountcy principle is the bedrock of the C.A. ’89. You may feel that it is not appropriately interpreted or applied; my view, for what it is worth, is that family court judges generally do the best they can.
    As for “In fact historically that happened when fathers were automatically the guardians,”
    This may or may not be the case but I am not aware of any evidence or figures from whatever historical period you refer to. Perhaps you will produce something of substance to support the assertion.
    The emotional wellbeing of the primary carer is inextricably linked with the welfare of the child and balancing that with the benefits of contact with both parents (where appropriate, of course) is the difficult task faced by trial judges in relocation cases.
    Regardless of Payne, I suspect that most reasonable applications by a primary carer to relocate would be granted anyway on those perfectly logical and humane grounds.

  52. Mr BD says:

    Dear ‘Facing the Challenge’

    The court process is indeed an extremely stressful ordeal for ALL parties involved, not least because of its adversarial ‘winner takes all’ nature. An inquisitorial system, focused entirely on the children’s needs, would be a far better system, as I told Sir Nicholas Wall in a 2009 hearing.

    In my own case, the matter dragged on for four years, and there were a total of 11 judgments. It still hasn’t ended. Despite having been found to be a good father and despite having been ‘awarded’ shared residence and monthly ‘contact’, I haven’t seen my children since Christmas, as my ex has decided to prevent contact. Enforcing the British contact order through Brussels II Revised is proving extremely difficult.

    We must bear up to the stress, and remain focused on the welfare of our children. I wish you well in those objectives.

    Child welfare is NOT always served by having contact with both parents. There are, sadly, numerous cases where contact needs to be restricted in order to prevent harm.

    However, the Relocation Campaign is focused on serving the best interests of children with two good, caring and loving parents. There is an irrefragable body of psychological and sociological evidence which shows that children fare significantly better – psychologically, developmentally and edicationally – when they are permitted to remain in a close, frequent, regular and meaningful relationship with both parents, including alternate weekends and weekly mid-week over-night contact. That evidence is solid.

    With parents living in different countries, or on opposite sides of the world, it is generally difficult to keep up the level of contact required to serve the best interests of the children. Of course, there may well be some cases where parents are able to fly overseas each and every week, but they are in the minority. Furthermore, trying to conduct a normal parent/child relationship in a motel room is extremely difficult, as I have experienced. Living in different locations in the UK is bad enough. But overseas separation is, logically, at the most extreme end of the spectrum of parent/child separation, and I would challenge any loving parent to conduct a proper meaningful relationship with their child in such circumstances.

    In conclusion, in the absence of proven abuse of neglect, children ought to be placed first, and ought to be permitted to remain in a meaningful relationship with both of their parents. The notion that one parent can effectively be excluded, at the wish of the other, is barbaric. Having a child is a life-long sacrifice, and every good parent should always place their childs needs ahead of their own wishes or preferences.

    Mr BD

  53. Michael Robinson says:

    FacingtheChallenge,

    No-one I am aware of believes there should be a blanket ban on relocation. It should only be allowed, in my opinion, if shown to be in the child’s best interests.

    If your ex is a convicted sex offender, I cannot see the court ruling in their favour. Your ex has no right to interfere in your life, but does have a right to be considered in so far as the children are concerned. Again, where there is a risk of harm to the children, the court will rightfully consider that.

    Where a parent (mother or father) presents a real and proven risk of harm to the children, this will (and should) count heavily against them. No right minded person would think otherwise.

    I think your anxiety is unnecessary.

    Michael

  54. Facing The Challenge says:

    Dear Mr BD,

    I do feel for your circumstances but our situations are entirely different. Despite the nature of my ex partners offences I have not and would not interfere with their right to the written contact agreed, in fact I have kept every letter written for their future reference and encourage them to discuss the absent parent in a positive manner. I have been told I am the exeption to the rule though.

    Michael,

    Your reassurances are very kind but I am not naive enough to believe anything is a certainty in this life. I am obviously confident that I have a strong case. Today is just a bad day……

    Throughout the whole process my only concern has been and will conrinue to be providing a stable and loving environment for my children and unsurprisingly I do believe I know what is best for them as I am the primary care giver. I am certainly not an advocate of parents removing children on a whim and fully appreciate the importance of having two stable parents having been brought up within a strong stable family unit. I echo the comments that this is a highly emotive topic and each case should be considered on it’s own merits. I do not think it inappropriate that due consideration should be given to the primary care giver be they mother or father, in equal weight to the welfare of the child as the two are inextricably entwined.

    I wish everyone the best.

    Facing thr Challenge

  55. Chambers says:

    Louise,

    I’m sorry I called you a mothers rights activist, I’m not sure what on earth gave me the impression you were.

    The paramountcy principle is as I have previously posted undermined by the judiciary’s and others belief that by supporting mothers they support children.

    I’m afraid I have not got time to give you a history lesson but suffice to say that in the 19th century (MCA 1857) on divorce the children were made the property of the father. All we have progressed to in 150 years or so is to make children the property of mothers but its never described that way of course.

    We must move forward from both of these positions that make children the property of mothers or fathers and put children first by putting them at the centre of family law and their relationships with both of their parents the highest priority (not just talk).

    Relocation is not a treatment for depression or anxiety as Professor Berelowitz (psychiatrist) stated to the law society in a debate on this subject. There is no evidence either that stopping a mother relocating across the world has any effect on that mother medically, let alone any adverse effect on the children.

    It is simply a made up, crack pot psuedo-science to support the family law systems belief that supporting mother supports the child’s needs. How fitting that this whacky theory is
    so revered by practitioners in family law.

    There is a host of peer reviewed research which does show that removing a parent from a child’s life has enormous adverse effects generally on children. However, this is ignored by the pseudo-science followers because it does not fit into the mother first theory which is the real paramountcy principle in the family law system.

    There is no such thing as a reasonable application to relocate children away from a parent, extended family, school and friends etc – If the parents are loving and caring reasonable parents then they will put their children first and not drag them across the world or this country because its their selfish desire.

    Time for mothers to be treated as grown ups and children to be protected by the Courts and their needs put first above all others.

  56. louise says:

    Chambers,

    “I’m sorry I called you a mothers rights activist, I’m not sure what on earth gave me the impression you were.”

    This is pretty poor and I will ignore the sarcasm to which you and others resort when you are challenged or corrected on your flawed reasoning and poor understanding of the law. I suspect it will fall on wilfully deaf ears again but I will take the time to respond to your paragraphs.

    “The paramountcy principle is as I have previously posted undermined by the judiciary’s and others belief that by supporting mothers they support children.”

    By supporting the primary carer, the children are supported.

    “I’m afraid I have not got time to give you a history lesson but suffice to say that in the 19th century (MCA 1857) on divorce the children were made the property of the father. All we have progressed to in 150 years or so is to make children the property of mothers but its never described that way of course.”

    Sarcasm notwithstanding,suffice nothing; I asked you for something of substance to support your assertion. Pointing out that fathers were the guardians in times gone by is not enough to support the assertion that children similarly suffered by being deprived of their mothers. The suggestion that we have made children the property of mothers is another ridiculous assertion. It is never described that way because it is not the case and you clearly are ignorant of the C.A. legislation.

    “We must move forward from both of these positions that make children the property of mothers or fathers and put children first by putting them at the centre of family law and their relationships with both of their parents the highest priority (not just talk).”

    Children are at the centre of family law; it is called the paramountcy principle.

    “Relocation is not a treatment for depression or anxiety as Professor Berelowitz (psychiatrist) stated to the law society in a debate on this subject. There is no evidence either that stopping a mother relocating across the world has any effect on that mother medically, let alone any adverse effect on the children.
    It is simply a made up, crack pot psuedo-science to support the family law systems belief that supporting mother supports the child’s needs. How fitting that this whacky theory is
    so revered by practitioners in family law.”

    Now you are simply talking nonsense and resorting to derogatory comments about the legal profession. Professor Berelowitz may have said that there was no evidence to support the proposition (unless studies had been conducted on parents after relocation, he could say no more than that) but that is not the same thing. This is another example of how an untrained an undisciplined mind (similar to that of Michael Robinson and Mr.BD) arrives at a fallacious conclusion.

    “There is a host of peer reviewed research which does show that removing a parent from a child’s life has enormous adverse effects generally on children. However, this is ignored by the pseudo-science followers because it does not fit into the mother first theory which is the real paramountcy principle in the family law system.”

    As above.

    “There is no such thing as a reasonable application to relocate children away from a parent, extended family, school and friends etc – If the parents are loving and caring reasonable parents then they will put their children first and not drag them across the world or this country because its their selfish desire.”

    You are entirely wrong and if you had dealt with any number of such applications through the courts you would understand that. It is inevitable with the increasingly international nature of personal relationships that such reasonable applications will increase upon divorce/separation.

    I fear that in common with Michael Robinson and Mr.BD, you will continue in this vein and little I or anyone else can point out will deter you. Fortunately for children the law requires considerably more intellectual rigour and the reasoned voice of the Bench will always prevail over the unhinged rants of the soapbox.

  57. Mr BD says:

    Dear Louise

    I fear that you will continue in this vein, and little I or anyone else can point out will deter you. Perhaps we should simply and politely agree to disagree?

    Fortunately for children, Sir Nicholas Wall, after having considered the matter “carefully” over the course of three weeks, declared that he had “no doubt” that there was a “perfectly reasonable”, “powerful” and “compelling” argument that Payne v Payne relegated the harm done to children.

    Exactly what was it that persuaded Sir Nicholas to arrive at this conclusion?
    Answer: the reasoned arguments and scientific evidence presented in Re D, all of which can be found at the Relocation Campaign website.

    I sincerely hope that you, and other supporters of Payne, would not challenge the authority, the “intellectual rigour and the reasoned voice of the Bench”…

    Thank you
    Mr BD

  58. Mr BD says:

    Very strangely, Anna’s post of 30 June was not visible on this blog, when I posted this morning!!! Perhaps I missed it…

    In any case, Anna, let me respectfully suggest that you have stumbled into the error as had Louise. You are making the issue of Relocation Law very personal.
    I repeat, the merits of the arguments have absolutely nothing whatsoever to do with the characters of the protagonists putting forward the arguments. Please focus entirely on the arguments themselves, and state, for example, whether or not you agree with Sir Nicholas Wall’s criticism of Payne (in two separate judgments, as detailed in my letter).

    If Mr Mussolini told you that two plus two equalled four, would you similarly discount his argument based upon your view of his character? I would hope not!

    It really doesn’t help the discussion if you keep going on about ME.
    I can assure you that no one reading this forum is interested in me (apart from you and Louise, it would seem!).

    Your points are all addressed in my letter of 19 June (see link above). It would be good to see you or Louise actually addressing the other important points raised in my letter.

    With regards to abduction and relocation, and your assertion that they are not related to each other, it was Lord Justice Thorpe who said that they are “two sides of the same coin”. Do you disagree with the Head of International Family Law?

    Best wishes
    Mr BD

  59. Mr JW says:

    Anna posts “So that we may assess the effectiveness of the court in Mr BD’s case can he please tell us if contact with his child has taken place as ordered.”

    Well, in my own circumstances Leave to Remove was granted and my children were taken away to the mother’s country. It was galling, especially as the supposedly independant expert admitted in Court to deciding to help write the mother’s case as she “thought I was more organised and that the mother needed some extra help”.

    Anyway, the Order has since been flouted with impunity. The children are allowed to see or speak to thier father as and when the mother determines she feels like and the Court Order is totally ignored. As a result I get to speak to my children once every three months.

    International Orders are worth less than toilet paper. They cannot be enforced and the Judiciary is niave to think that they can.

    Mr JW

  60. Chambers says:

    Louise,

    it appears there is no risk of having you budge one inch from your entrenched position of the paramountcy principle is best served by supporting mothers.

    It’s sad that you resort to sarcasm and bitter remarks against those who disagree with you and yet are unable to come up with any real argument except that the judges get it right and the law is the law.

    Whether you want to call yourself a mothers rights activist or not, it’s clear by this thread that you put mothers above all else including the needs of the children.

    I took a look at your earlier posts which prompted me to try to discuss with you your views and they are as I recalled, disparaging and rather nasty about others on this thread who don’t agree with your fixed views.

    I’m not sure why you feel the need to be so disrespectful to others who have contributed to this thread but have different views, it is a rather unhealthy situation perhaps.

    Please consider rereading your earlier posts prior to me trying to debate with you and I think you might find it quite shocking how unhelpful they are as posts and are merely meant to be attacks.

    I wish you well but I think I will leave you to continue as you are or perhaps modify your approach to be more reasonable.

    louise June 29, 2011 at 12:55 pm
    louise June 29, 2011 at 5:07 pm
    louise June 29, 2011 at 6:58 pm
    louise June 30, 2011 at 9:43 am

  61. louise says:

    Chambers,

    “it appears there is no risk of having you budge one inch from your entrenched position of the paramountcy principle is best served by supporting mothers.”

    If, as you claim, you have read my posts, you will be aware that this is not what I have said.

    “It’s sad that you resort to sarcasm and bitter remarks against those who disagree with you and yet are unable to come up with any real argument except that the judges get it right and the law is the law.”

    I have said that I believe that judges generally do the best they can. You cannot engage in a debate by deliberately twisting what someone says and expecting them to respond. I have made clear points and done so without misreporting what others have said.
    And that is the difference: In responding to my posts, you like Mr.BD, distort what was said and try to advance arguments based on comments taken out of context from whatever source. Can you not understand how this “smoke and mirrors” approach is doomed to failure in the courts.
    Lastly, the sarcasm, derogatory remarks etc that I have noted have come from you and Mr.BD to the extent that (in the case of the latter) the owner of the blog has had to intervene.
    Unless you can advance something- anything of substance that ammounts to more than “the law just favours mothers” (complete and utter tosh) I will not respond any further to you.

  62. Chambers says:

    http://www.guardian.co.uk/society/2004/apr/02/childrensservices.uknews

    Lord Justice Munby – 2004

    Judge backs angry fathers over contact with children – Call for sweeping changes to family justice system after ‘shameful’ court failures

    A high court judge yesterday launched an extraordinary attack on the family justice system for failing separated fathers and their children.

    Mr Justice Munby, a respected judge of the Family Division, said he was going public with a judgment following a private hearing, while keeping the parties anonymous, because judges needed to “face up honestly” to the failings of the system so as not to forfeit public confidence.

    He called for sweeping changes to the system after a father had to abandon his five-year battle for contact with his seven-year-old daughter following 43 court hearings in front of 16 judges. The “wholly deserving father”, who last saw his daughter in December 2001, had left court “in tears, having been driven to abandon his battle for contact”.

    The delays in the case were scandalous, added the judge, who said he felt desperately sorry for the father, whose case was “far from unique”.

    http://business.timesonline.co.uk/tol/business/law/article3850658.ece

    Lord Justice Ward – 2008

    Vengeful mothers leave good fathers powerless to see child, says judge

    A senior judge spoke out against child access law yesterday, saying that the courts were powerless to help decent fathers to see their children if vengeful mothers stood in the way.

    “The father complains bitterly, passionately and with every justification that the law is sterile, impotent and utterly useless – we have to acknowledge there is a degree of force in what he says,” the judge told the Court of Appeal Civil Division.

    “But the question is what can this court do? The answer is nothing. This is a truly distressing case. It may not be untypical of many, but in some ways it borders on the scandalous. It certainly is tragic.”

  63. Mr JW says:

    Louise, you say “Unless you can advance something- anything of substance that ammounts to more than “the law just favours mothers” (complete and utter tosh) I will not respond any further to you.”

    Fair enough. Can you comment on this please? My own hearing was in the High Court. The Judge said, and I have this on the official transcript, that “Orders are only guidance for Mothers but Fathers have to follow them exactly”. Is this gender neutral or is there an overt bias towards the mother?

    I’ll quite happily accept that the CA1989 is gender neutral. It is not the law I feel is the issue – rather the lack of professionalism, objectivity and understanding of the law that sadly pervades in many of those working in the Family Courts.

    Mr JW

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