Sunday, 1 June 2008

Leave to Remove, case law, and missing children

Leave to Remove (LTR) is perhaps the worst application of case law that exists in family law. LTR is usually a request to the Court made by a resident parent (or parent with shared residence but having the majority of care) to emigrate with the children.

You would imagine that the courts would count heavily the implications of the children's removal from school, their social network and extended family, familiar homes, native culture, and their day to day relationship with their non resident parent (or parent with shared residence). Also the problems in maintaining contact once the child is removed from the Court's jurisdiction. Sadly this is rarely the case although the welfare checklist lists a variety of factors which should weigh heavily against LTR being granted. It is estimated that 90% of LTR cases go ahead with the main reason being that to refuse it would upset the resident parent and that this would (in theory) adversely impact on the child's welfare. This decision is rooted in the case law Payne v Payne from 2001 which has caused misery to many in the years that have followed and the separation of child from parent and grandparents.

In one case, I've heard a Judge comment that removal to Australia would be a wonderful adventure for the child. In the summing up was a nod of sympathy in the direction of the paternal grandparents and to the father who was devastated. As to how the child would react, there was no qualified consideration. CAFCASS had not even met the child concerned. Prior to LTR having been granted, the father had provided care for more than a third of the child's time. This was deemed to be less important than the mother's right for a lifestyle change... an adventure.

How can you assess the impact on the child prior to the emigration having happened? It isn't possible and the Court makes these decisions blindly. There is no ‘come back’ since the child, once out of the Court’s jurisdiction, is no longer the Court’s problem. There is no research which assesses how children have been affected in the long term by such decisions. There is, however, plenty of research that shows that when a child is deprived of a father they will be more likely to suffer mental health problems, addiction problems, teenage pregnancy and attain a lower academic achievement than their peer group. Sadly, the definitive case law predates this research, and the Courts haven’t yet caught up.

An article in family law week discusses LTR and the current thought processes of the Court in relation to parents seeking to remove their children abroad. This article is essential reading for those who are interested in LTR.

Leave to Remove. A lawyer's all too personal view.

There is a solution, that emigration with the children be prohibited until the youngest child is 16 should their removal from the UK result in the children being substantially deprived of their other parent and extended family. There could not be disappointment since resident parents would be aware of these restrictions at the point of separation and determining the children's living arrangements. The children's Article 8 'Human Right to family life' would be protected. It seems a little strange that the Children Act 1989 only allows a resident parent to holiday abroad with the children for a month at a time, but a request to the Court to emigrate permanently is rubber stamped on 90% of occasions.

In the UK Courts, a parent's desire for a lifestyle change and their inability to put children's needs first outweigh:

· the loss of substantive care from the other parent;

· the loss of relationships with the extended family;

· the financial and logistical impracticalities of making contact work. A parent’s ability to maintain contact is based on their income rather than the children’s need for contact;

· the disruption to the children's emotional development. It cannot be argued that such a drastic change in the status quo does not significantly impact on the child;

· the loss of the children’s peer relationships and social network impacting on the children's social development;

· the impact of removal from school, the children’s needing to adjust to different teaching styles, different teaching methods and syllabi, and the inevitable disruption on a child's educational development.

Within the Children Act 1989, the Welfare Checklist (s 1(3)) sets out the criteria that the Court must consider when making judgments that affect a child’s life. Nowhere does it list ‘not upsetting the resident parent’ or that ‘the resident parent’s wishes outweigh the needs of the child’. Leave to Remove case law and its application goes against the key legislative principal set down by Parliament that a child’s welfare must be the Court’s paramount consideration. The vast majority of Leave to Remove judgments are fundamentally incompatible with the Human Rights Act 1998.

In a recent case, it was suggested by CAFCASS that the father would maintain a 'connection' with his child by reading a bedtime story via webcam. The CAFCASS Officer hadn't realised that time zone differences meant that the father was at work when the child was going to bed. Bedtime in Australia was 9.30am in the morning in the UK.

I wholeheartedly support Steven Moseley and his family in their campaign to find Savanah-Jade, and urge you to do the same. Please spend the time visiting his website for Savanah, and join his Facebook campaign to demonstrate your support.