In a Court of Appeal hearing earlier this week, a Spanish father lost an appeal against an judgment granting his former partner permission to take their child back to Spain.
It is a thought-provoking case, and one which I suspect will be long quoted in future relocation proceedings.
The case concerned a Spanish couple with a son, referred to as P in the court documents. Five years after he was born the family moved to the UK for the father’s job and their intention was to stay in the UK for several years.
Unfortunately the parents’ relationship came to an end – it entered a dramatic-sounding “terminal crisis” to quote the appeal judgement – and the mother retained to Spain in August of last year. The boy P remained in the UK with his father.
Interestingly, the decision to leave their son with his father represented a reversal of the existing situation in which the mother had been the acknowledged “primary carer”. However, it was a decision that may not have been entirely amicable, as following the mother’s return to Spain, she applied for her son to return to her on the basis of the Hague Convention on Child Abduction. The application was dismissed as the court held that this country was the boy’s home by that point – he was “habitually resident” in the UK to use the legal term: an interesting finding given subsequent events.
Eventually the case came before Judge Marston in Portsmouth County Court this July. By this point, the parents were proposing shared residency. The judge granted a shared residency order but also gave the mother permission take P out of the UK.
He was influenced in his decision by the mother’s evidence:
“What came out of the mother’s evidence was that her proposal involved a return to P’s roots, to the school that he was familiar with, to friends that he was familiar with and to an environment that he was familiar with. She further put forward the advantage that she would actually have more time available because of her working hours and school times inSpainto look after P.”
Her holiday schedule would allow the father time with his son and P would more contact with his relatives in Spain. In relation to P’s father the mother: “…expressed her respect for the father as a gentleman and as a figure in P’s life.”
The unhappy father appealed. His argument was that Judge Marston had:
“… approached the case with a presumption in favour of the mother. He should, on the contrary, have recognised the father’s claims as the primary carer, given due respect to the father’s wishes and plans, in particular his reasonable wish to remain living in this country, and not imposed unreasonable constraints on his choice of residence.
However, sitting in the Court of Appeal with the Lords Justice Pill and Toulson, Lord Justice Munby rejected this argument.
“[Judge Marston] carefully took into account P’s current circumstances in this country, the quality of his father’s care of him and the father’s own plans, wishes and feelings….A reading of his judgment demonstrates that Judge Marston took into account and gave appropriate weight to each of the factors to which the father has drawn attention. He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo. He gave appropriate weight to both points, whilst correctly appreciating that neither could be decisive.”
No doubt some will see this case as another example of supposed institutional bias of the legal establishment against fathers. To them I would simply quote Lord Justice Munby’s observation in his judgement that:
“There is nothing which begins to suggest that [Judge Marston] started off with any presumption in favour of the mother’s claim. And if the complaint is that he did not recognise the presumptive weight of the father’s claim, the short answer, as explained by Black LJ in K v K, is that he would have erred in law had he done so.”
In the international custody case referred to as K v K, which came before the courts last year, Lady Justice Black said: “…I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”
The Rt Hon Lady Justice Black’s entire judgement the K v K case is very illuminating and well worth a read. She could a strong contender to replace Sir Nicholas Wall when he retires as president of the Family Division in December.
Meanwhile, Lord Justice Munby included a postscript in his judgement on the case of P, which in my view is the real crux of the case. It makes some interesting points about the correct legal approach to child residency cases. Discussing the ways in which the case did not fit previous precedents, he said:
“Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided. The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount.”
This is a beautifully stated call for all family lawyers not to become so focused on dry legal arguments that they lose sight of the human beings before them. I would say this is perhaps a lesson for all legal professionals but a focus on human beings, in all their messy variety, is especially important in family law, which must reflect the complexities of human nature. Strict inflexible policy cannot operate fairly balanced against the welfare test. Thus despite all the criticism directed at our courts, they consistently show that they always do act on the basis of the welfare test – and no other. Its a pity that courts in other jurisdictions do not always do likewise.