It’s about the child, not the parents

Family Law|June 18th 2015

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

Author: Stowe Family Law

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Comments(4)

  1. Dr Nigel Miles says:

    Naturally it’s about the best interest of the child but possessing and privatising a child by what one patents assumes is their rights is not parental responsibilities. You have said it enough times in your blog that you were practising family law since 1949? A lot had changedd since then and John have you ever been a primary care for a minor child during the time you were a carer? How many male judges have had this privilege? Female judges hormonally and pheromonally understand and empathise with female Court applicants et al. Male judges in the main have no idea of this. Then there is both experience and biological bias in some way even though they want to believe what is in a child’s best interest.

    When a child bids with a parent then it beholds both parents to realise this. If they don’t they cannot have singular custody for they’re not doing what is in the best interest of their child.

    Only those parents who experience this understand empirically the meaning by knowing what is in the child’s best interest. Ethological science is now proving this. Again the reality is being lost. Only when the basis of responsibe parity in parenting is morally and legally accepted will this nonsense of parental rights to dispossess a child from one of its parent end. When are you and your anachronistic attitudes going to end?

    This change is inevitable John and you can argue anachronism for change as much as you want but change because of empirical evidence will ensue.

  2. Nordic says:

    John,
    Anybody who has any real experience of being a child in a divorce will know that maintaining meaningful relationships with both parents is the number one priority, closely followed by not seeing them fight each other. Everything else pails into insignificance by comparison. This is the overriding interest of any child caught up in a divorce in the vast majority of cases. Ask me, ask my kids, ask anyone with real experience (so in general don’t bother with family law professionals or judges). Yet,
    these basic principles are nowhere to be found in our archaic family law.
    .
    The Payne v Payne precedent on international relocation is a national disgrace, which appears to have been followed in the Angola case you quote. I don’t know the details, but I strongly suspect the judge in this case failed to understand what was in that child’s best long term interest. What he did do, however, was to reinforce that abducting your kid has no consequence provided you are a mum.
    .
    In the Minnock case, the judge showed courage and one must hope this mother, who comes across as a narcissistic and self-absorbed person, does not gain from her abduction stunt. Sure, the level of contact should not be used as means of penalising parents. Instead, Ms Minnock should face criminal charges for having kidnapped the child (anybody else would in similar circumstances, including the dad no doubt).
    .
    If abduction has no consequence, then It is de facto encouraged. That was clearly not in the best interest of the children in either of the cases you mentioned, nor is it in the best interest of the kids who in the future will suffer a similar experience because our courts de facto condone such behaviour.
    .
    Just because a judge says he is acting in the best interest of children, does not make it so. The children’s Act of 89 is hopelessly vague and the old men and women who dominate our senior courts are desperately in need of guidance and help.

  3. Bolchedik says:

    If children could see what the authorities, judges, barristers and other so-called professionals do to their parents and their family life, they would undoubtedly grow up with the most profound hatred for all of these people. These people rest secure in the knowledge of a self-regulating system though. What keeps all these children in the dark, of course, is simply the natural inclination of a parent to protect their children, in this case to protect them from the knowledge of the suffering that the authorities caused to them by turning their family life into a battleground rather than a surgery. I suspect that by the time children become of age to understand certain things, it is all regarded as water under the bridge. And those children, becoming parents themselves, become the new prey for this pathological industry.

  4. Dr. Nigel Miles says:

    Well spoken.

    This is why we need a responsible parity in parenting enacted as soon as possible

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