Over the years in which I have been writing about family law there have been occasions when what I have written has caused offence to those who consider that our family justice system is biased against fathers. One of the occasions that particularly sticks in the memory for the level of vitriol that it engendered was when I wrote a post about international child relocation.
Now, I can’t recall exactly when I wrote the post, but I think it was before the courts began to ‘back away’ from the leading case on the subject of international child relocation, Payne v Payne (for a summary of Payne v Payne, see this post, and for a look at one of the more recent cases, see this post). Payne v Payne became notorious amongst those who felt that the family justice system was biased against fathers, as it was seen as creating a presumption in favour of the parent who wished to relocate with the child to another country, with the assumption that that parent, as the carer of the child, was the mother.
I’m not going to get into arguments as to whether or not that was actually what Payne v Payne said. However, a decision of the High Court of Northern Ireland, decided a year ago but only recently published on Bailii, may go some small way towards satisfying the naysayers that the family courts are not, in fact, biased against fathers when it comes to international child relocation.
In E v L a father, despite, shall we say, less than optimal behaviour on his part, succeeded in an appeal against an order allowing his former wife to relocate with their child to the United States.
The father came from County Armagh and the mother was, as you might expect, American. They met in 2005 when the father was working in the United States. He returned to Northern Ireland in 2007 and the mother followed him there shortly afterwards. They were married in 2009 and their child, S, was born in late 2012. Unfortunately the marriage broke down shortly after that, and in June 2013 the mother left the matrimonial home, taking S with her. (It should be said here that the mother was not above judicial criticism for the manner in which she handled the separation). S still lives with the mother, although the father has regular contact with him.
The mother applied to the court for permission to take S to the United States, where her family still live. The application was heard in May 2014. The judge found that S had not formed a strong father/son relationship, and granted the application.
The father appealed against that decision, claiming that it is in S’s best interests to be raised in Northern Ireland where, despite their divorce, he and the mother can both care for S and share the responsibilities of parenthood between them. The fact that this would require the mother to stay in Northern Ireland against her wishes was secondary to what was best for S.
Crucially, and for reasons that are not explained in the judgment, there was a considerable delay before the hearing of the appeal, during which time the circumstances of both families had changed. In the light of this the judge who dealt with the appeal, O’Hara J, took the unusual step of hearing the appeal by way of a rehearing.
O’Hara J had considerable reservations about the father’s past conduct. For example, he had a drinking problem, despite the fact that he was aware that he became incontinent after more than about three drinks. He also on one occasion threatened not to allow the mother to take S to the United States for a holiday. Further to this, the mother also gave evidence of controlling and other behaviour on the part of the father, such as unilaterally making arrangements for S. O’Hara J also found that the father twisted events, for example claiming that an illness suffered by the maternal grandmother in the United States was part of a plot to get S there.
Despite all of this, however, the Judge came to the conclusion that S’s welfare would be best served by him being cared for by both parents, in Northern Ireland. The primary reason for this was that over the last year or so the father’s behaviour had improved and he had developed a significant connection with S. O’Hara J therefore felt that it was not in S’s best interests to have his relationship with his father weakened, as it inevitably would be by moving to the United States. In other words, that relationship was one which, in the best interests of S, should be given priority over the mother’s desire to relocate.
Accordingly he allowed the appeal and refused the mother’s application to remove the child from the United Kingdom.
It should be said that O’Hara did end his judgment with a warning to the father that the mother’s application had been decided by a very narrow margin, and that if the father’s conduct deteriorated again or if he proved to be difficult about S visiting the United States with his mother, then the outcome of a further relocation application by the mother might be different.
The full report of E v L can be read here.