PRESS RELEASE
ON BEHALF OF THE RELOCATION CAMPAIGN
IN REPLY TO SIR NICHOLAS WALL’S SPEECH MADE ON 19th SEPTEMBER 2010
The Relocation Campaign is supported by Sir Bob Geldof, and has recently been joined by the charity Grandparents As Parents and the Equal Parenting Alliance.
The Custody Minefield, on behalf of the campaign to reform private family law in relation to child relocation, is disappointed by the comments made by Sir Nicholas Wall, President of the Family Division of the Courts.
As held by many in the legal profession, Members of Parliament, charities and members of the judiciary themselves, the need for the reform of guidance for the courts in this area is long overdue. While waiting for this reform, thousands of British children face a risk of harm.
In December last year, we published a Parliamentary Briefing Report setting out how children were likely to face emotional, developmental, and psychological harm caused by removal from one parent, their extended family, friends, culture and school. This is the common outcome in such cases. Our arguments made reference to 15 national and international studies on matters related to child welfare, to which the courts fail to afford sufficient weight.
As Sir Nicholas himself said in January 2010 in respect of the leading guidance ‘there is a perfectly respectable argument for the proposition that Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent.’
We have seen a number of cases this year where the Court of Appeal has prevented cases from being transferred to the Supreme Court. The Supreme Court can overturn the Court of Appeal’s guidance, yet for this step to happen, the Court of Appeal must grant permission for its own guidance to be reviewed.
Sir Nicholas commented that ‘relocation cases are usually highly fact specific. The English Court of Appeal nearly always defers to the lower court on questions of fact, and usually only departs from what the lower court has found if there was no proper basis for the judge to make the findings he or she did.’
The reality is that relocation cases are invariably not fact specific. Judicial decisions are based upon a much criticised judicial belief that ‘refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.’ This single factor commonly outweighs all other evidence before the judge. In 2005, the Court of Appeal went further when it declared that no expert evidence was required to support this one argument which invariably trumps all others in relocation cases. In 40 years, no research has been published which supports the courts’ key belief in this matter.
How can this be? There is a legal principle called ‘judicial notice’, where the judiciary may decide that, where a belief is commonly held, there is no need for evidence to be produced to support it.
In reality relocation cases are heavily influenced by two factors, the first being a judge’s observation of the parents in court. The parents’ character is judged in the unnatural and stressful setting of court, made worse by the burden of uncertainty as to their child’s future relationship with them. Their demeanour in such exceptional circumstances is assumed to reflect on their character in day to day life. Conversely, the relocating parent simply has to say they will be distressed if the judge refuses their application. On two key psychological considerations which will likely have a lifelong impact on the child, no evidence or expert opinion from a qualified psychological professional is required.
In our opinion, and as explained in this release, Sir Nicholas having stated that such cases are ‘fact specific’ is unacceptable and misleading, and does not assist in there being an informed debate.
Sir Nicholas stated that it was up to the Supreme Court or Parliament to change this judge made law.
In Sir Bob Geldof’s own words: ‘How much longer must we put up with the state sanctioned kidnap of our most vulnerable? Because in effect that’s what “Leave to Remove” amounts to. How much longer do we tolerate the vested interest intransigence of the appalling U.K. Family Justice system? How long before just one of them admit they have got it ALL wrong and apologise to their myriad victims?’
We feel it briefly worth commenting about Sir Nicholas’s allegation that it is intelligent parents who get involved in protracted litigation. The counter argument to this is that the intelligent parent often sees the flaws in our family justice system, and is unprepared to accept an outcome which is manifestly unjust, based on flawed logic and which fails to consider the best interests of their children. The poorer parent simply cannot afford legal representation, and some simply lack the ability to articulate these arguments to protect their children’s relationships. In relocation cases, you can almost guarantee it. It is little wonder that Sir Nicholas sees poor parents less often. The poor ones cannot afford the costs of appeal.
*ENDS
The Relocation Campaign is managed by The Custody Minefield, the leading internet based information provider on relocation related family law and shared residence. In 2010 alone, we have provided information to 50,000 parents.
www.relocationcampaign.co.uk
ON BEHALF OF THE RELOCATION CAMPAIGN
IN REPLY TO SIR NICHOLAS WALL’S SPEECH MADE ON 19th SEPTEMBER 2010
The Relocation Campaign is supported by Sir Bob Geldof, and has recently been joined by the charity Grandparents As Parents and the Equal Parenting Alliance.
The Custody Minefield, on behalf of the campaign to reform private family law in relation to child relocation, is disappointed by the comments made by Sir Nicholas Wall, President of the Family Division of the Courts.
As held by many in the legal profession, Members of Parliament, charities and members of the judiciary themselves, the need for the reform of guidance for the courts in this area is long overdue. While waiting for this reform, thousands of British children face a risk of harm.
In December last year, we published a Parliamentary Briefing Report setting out how children were likely to face emotional, developmental, and psychological harm caused by removal from one parent, their extended family, friends, culture and school. This is the common outcome in such cases. Our arguments made reference to 15 national and international studies on matters related to child welfare, to which the courts fail to afford sufficient weight.
As Sir Nicholas himself said in January 2010 in respect of the leading guidance ‘there is a perfectly respectable argument for the proposition that Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent.’
We have seen a number of cases this year where the Court of Appeal has prevented cases from being transferred to the Supreme Court. The Supreme Court can overturn the Court of Appeal’s guidance, yet for this step to happen, the Court of Appeal must grant permission for its own guidance to be reviewed.
Sir Nicholas commented that ‘relocation cases are usually highly fact specific. The English Court of Appeal nearly always defers to the lower court on questions of fact, and usually only departs from what the lower court has found if there was no proper basis for the judge to make the findings he or she did.’
The reality is that relocation cases are invariably not fact specific. Judicial decisions are based upon a much criticised judicial belief that ‘refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children.’ This single factor commonly outweighs all other evidence before the judge. In 2005, the Court of Appeal went further when it declared that no expert evidence was required to support this one argument which invariably trumps all others in relocation cases. In 40 years, no research has been published which supports the courts’ key belief in this matter.
How can this be? There is a legal principle called ‘judicial notice’, where the judiciary may decide that, where a belief is commonly held, there is no need for evidence to be produced to support it.
In reality relocation cases are heavily influenced by two factors, the first being a judge’s observation of the parents in court. The parents’ character is judged in the unnatural and stressful setting of court, made worse by the burden of uncertainty as to their child’s future relationship with them. Their demeanour in such exceptional circumstances is assumed to reflect on their character in day to day life. Conversely, the relocating parent simply has to say they will be distressed if the judge refuses their application. On two key psychological considerations which will likely have a lifelong impact on the child, no evidence or expert opinion from a qualified psychological professional is required.
In our opinion, and as explained in this release, Sir Nicholas having stated that such cases are ‘fact specific’ is unacceptable and misleading, and does not assist in there being an informed debate.
Sir Nicholas stated that it was up to the Supreme Court or Parliament to change this judge made law.
In Sir Bob Geldof’s own words: ‘How much longer must we put up with the state sanctioned kidnap of our most vulnerable? Because in effect that’s what “Leave to Remove” amounts to. How much longer do we tolerate the vested interest intransigence of the appalling U.K. Family Justice system? How long before just one of them admit they have got it ALL wrong and apologise to their myriad victims?’
We feel it briefly worth commenting about Sir Nicholas’s allegation that it is intelligent parents who get involved in protracted litigation. The counter argument to this is that the intelligent parent often sees the flaws in our family justice system, and is unprepared to accept an outcome which is manifestly unjust, based on flawed logic and which fails to consider the best interests of their children. The poorer parent simply cannot afford legal representation, and some simply lack the ability to articulate these arguments to protect their children’s relationships. In relocation cases, you can almost guarantee it. It is little wonder that Sir Nicholas sees poor parents less often. The poor ones cannot afford the costs of appeal.
*ENDS
The Relocation Campaign is managed by The Custody Minefield, the leading internet based information provider on relocation related family law and shared residence. In 2010 alone, we have provided information to 50,000 parents.
www.relocationcampaign.co.uk
