The sentiment expressed in the title to this post is repeated so often that, to family lawyers at least, it has almost become trite. However, there are still many parents who do not understand the point, or perhaps don’t want to understand it, that it still merits further regular repetition.
Every family lawyer must frequently come across clients who speak in terms of their ‘rights’ when it comes to arrangements for their children. This is despite the fact that it is now some twenty-six years since the Children Act 1989 changed the terminology used in children disputes, in an attempt to concentrate on parental responsibilities rather than rights, as I mentioned here in my post on Monday. All too often we still hear parents who seek to enforce their right to have their children spend time with them. But it is not about their rights at all.
It is also not about the actions of the parents. Even when those actions have been patently wrong, the court must still proceed on the basis of what is best for the child, rather than on the basis of punishing the wrongdoer.
The Minnock case, which was played out so publicly over the last week or so, was a demonstration of the supremacy of the rights of the child when it comes to decisions about arrangements for children. Despite the appalling actions of the mother, including wilful disregard of an order of the court, His Honour Judge Wildblood QC has still made it quite clear that he will be doing everything possible to ensure that the child has an effective relationship with both of his parents. This might be seen by some to be rewarding the mother, and it is probably true that in most other areas of the law such a breach of an order of the court would be likely to end any possibility that that party would achieve anything from the proceedings, but that is to miss the point: it is not about the parent, it is about the child.
Another stark example of this principle in action arose in the case RC (Mother) v AB (Father), decided by Mr Justice Cobb in the High Court on Tuesday. The case concerned a mother’s application for permission to remove her son from this country, to live permanently in Angola. The unusual aspect of the case, however, was that the mother had already previously taken the child to Angola without permission, in 2013, only returning him to England in April this year, after being ordered to do so by the court.
The mother had claimed that the 2013 removal was not planned; that she had gone to Angola to visit her grandmother who was said to be critically ill, and only decided to stay there after she was ‘head-hunted’ out of the blue for high-paid work. The father, on the other hand, was sure that it had been planned, and Mr Justice Cobb preferred his evidence.
Mr Justice Cobb also found that, whilst she was in Angola, the mother had failed the child in not facilitating good contact between him and his father. Further, he agreed with the father when he said that he had a “very big trust issue right now” with the mother.
Notwithstanding all of these things, Mr Justice Cobb granted the mother permission to relocate the child with her permanently in Angola. He did so, of course, because he considered that such an order was in the child’s best interests. Indeed, he said in his judgment: “I am conscious that neither the mother nor particularly the father should view my decision as rewarding the mother for her wholly improper conduct in removing [the child] to Angola nearly two years ago. My decision should only be understood as reflecting what I regard to be the best outcome for [the child] having regard to his welfare now.”
It’s about the child, not the parents.
Photo by Spirit-Fire via Flickr