Father’s appeal against child relocation succeeds despite behaviour

Family Law|April 7th 2016

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.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. The Devil's Advocate says:

    John we all have to be careful about the nature of bonding relationship of parents with their children. So serious an issue as this cannot be made insuprable by legislation particularly if those using it do so to “pervert” the nature of justice when in the bonding of a child with a parent is in that child’s best interest unless either or a member of the first and second filial family generation have been convicted of a criminal offence against a minor. The UN identify this reality and therefore so should all in our country including our judiciary.

  2. JamesB says:

    John, that you and the Judges concerned make fun of the father and his (not bad) behaviour rather than that of the mother illustrates that the bias which you say doesn’t exist actually does in droves and usually. That this case is newsworthy for a court denying a move to a mother also illustrates that. If the fathers behaviour were really bad then you may have a point rather than as it is you do not. That courts put fancy statements about everyday life doesn’t mean much to most people.

    Its like the defence trying to paint a father as bad for alledgedly having porn on his laptop. That’s the bad behaviour. Like my ex’s solicitor trying to paint me as a bad father for leaving an 18 dvd in the dvd player, or drinking vitamin c around my children I could go on with loads of these but I think the point is made, often allegations are made which don’t really amount to much even if they are spoken loudly passionate and over a long period of time by an expensive lawyer, that other lawyers often fall for them or value style over substance is a real issue in addition to the other parts of the bad law including attitude of family courts to men. With re to vitriol, I am not sure what that means either, perhaps it is another word for wibble.

  3. JamesB says:

    I think I know what vitriol is and I think its harsh that you criticise fathers who’ve often been through difficulties with family law that they have with that and in the way you do and think you at least partly contribute to such tone if it does exist which I haven’t been able to find from spending 5 minutes on your links above for locating am now out of time.

  4. JamesB says:

    I think I may have fallen for John’s provocative writing to get a rise again must try not to.

  5. Luke says:

    “…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.
    Actually it won’t – and your use of the pejorative term ‘naysayers’ in the article John also shows your lack of objectivity on the subject.
    According to your own article the child has never lived in the USA and was not born there, the mother left the family home but the father still has regular contact with his son. The father had a drinking problem in the past – but other than that there don’t seem to be any substantiated indiscretions of any note against either parent.
    The fact that the father was very much against her taking their son to the USA is not a strike against him – and the Judge is quite unreasonable for thinking it – parents taking their child “on holiday” and then turning that effectively into unilateral relocation is hardly unheard of and the English courts have an extremely patchy record when it comes to forcing their return. I think any rational non-resident parent would have similar reservations.
    So the fact that the Judge found it a marginal call to prevent relocation and effectively ending the father’s hands-on relationship with his son is quite disgraceful – and does anybody seriously think the Judge would make similar threats to the mother over past indiscretions ?

  6. Gary Martin says:

    Having had a decision stating my daughter can move to spain with her mother, I am appalled that at no time was I notified of a 3 week appeal deadline, neither from HMCTS or my solicitor. Any views?

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