Saturday, 27 August 2011

Demographics, Leave to Remove and the Courts: The Ticking Time Bomb

A few years ago, leave to remove applications were comparitively rare when compared to other types of family law case (anecdotally, circa 1000 cases a year).

As reported in a number of broadsheet papers this week, the number of births in Britain to immigrant mothers is fast approaching 25% of all births. In London, it is already over 50%. In some boroughs, 75%.

You do not need to be a seer to realise that cases involving international relocation and abduction abroad are certain to increase and could overwhelm the courts and Foreign Office.

At the Custody Minefield, we're receiving more and more enquiries from parents seeking to prevent a leave to remove application. Already in 2011, we've experienced a 50% increase in our guides being viewed, compared to page views in all of 2010. A couple of years ago, emails about relocation cases mainly involved ones where emigration was a lifestyle choice. From what we're seeing in 2010, they more commonly involve a parent seeking to return to their country of birth, with cases involving returns to Europe, Eastern Europe, the USA, Canada, New Zealand, Australia and South America, but most commonly Poland and Pakistan. In all of these cases, the children had been born in the UK and had lived all their lives here.

About these latest birth statistics, shadow home secretary Dominic Grieve said: 'With births to foreign mothers becoming such a large driver of population growth, it is vital that immigration levels are set taking into account the ability of our schools, hospitals and other local services to cope.'

Have the Government or courts considered the impact on leave to remove applications and unlawful abductions abroad in the years which will follow?

The Family Justice Review Panel have specifically said that it is not within their remit to consider this area of law despite even senior members of the judiciary accepting the controversy that exists over the handling of these cases.

The Family Courts did review Payne v Payne earlier this year, which until that point was held to be both leading and binding case law in international child relocation cases. The review happened in the case K (Children) [2011] EWCA Civ 793, but was contradictory and inconclusive. The review followed much criticism that the courts paid too much attention to adult, rather than child welfare.

The review saw the courts slightly pull back somewhat from the adult centric guidance which had been followed since the Payne case. The Lord Justices of Appeal did not agree on which guidance should apply (depending on the particulars of the case), with Thorpe (Head of International Family Law) and Moore-Bick (Deputy Head of Civil Justice) holding that the guidance in Payne v Payne should not be a consideration where parents share care, while Lady Justice Black felt it should. All agreed that despite the controversy and criticism that the judge made guidance conflicts with Parliamentary statute, the guidance would still apply to cases where there was a primary carer.

Moore-Bick led us to believe that the only point of law ever to come from Payne v Payne was that child welfare must be the court's paramount consideration. Every family law case includes this point of law... so why was Payne considered binding precedent (as said to us by all preceeding Presidents of the Family Courts)? Why was it necessary to have this raised as a point in law, when that principle was laid out in statute? As a vanishing act, it wasn't particularly convincing, and rather than a white rabbit, the furry creature which Moore-Bick sought to make disappear was the judiciary having held adult welfare above child welfare in relocation cases which contravened the existing statute. The basis upon which relocation cases had been judged in the preceeding decade had 'contaminated the purity of the paramountcy principle' and due to the confused and contradictory ruling in K (Children), will continue to do so.

The main review point from the K (Children) judgment was that the wide ambit of judicial discretion should be unfettered, although this was muddied by the Lord Justices also saying that the guidance from Payne should be considered where there is a primary carer, and Lady Justice Black going further when she said it was useful in all external relocation cases. As a magic act, we were assured the rabbit had disappeared, but the head was clearly poking out of the magician's coat.

We are now seeing firms of solicitors asking for a £30,000 deposit from a parent needing representation in a case involving an international element, and their advising the parent that total costs could top £100,000. Why so much? The lack of detailed, child centric guidance and the inconsistency caused by the wide ambit of judicial discretion in considering these cases leads to lengthier and thus more expensive litigation.

This is compounded by the adversarial rather than inquisitorial nature of our family law system which leads to success being as much dependent on the skills of advocates and legal advisors as the facts of the case.

We believe the welfare checklist within the Children Act 1989 is too open to interpretation, and due to this, all family law cases concerning children become more uncertain, causing more lengthy litigation. Outcomes are inconsistent from court to court due to individual judicial discretion. We can only hope that at some point, the Government wakes up and considers the proposals that we and Families Need Fathers put forward to the Family Justice Review.

We are also seeing an increase in enquiries for information concerning unlawful child removals. Pakistan presents a particular problem in these circumstances. While an agreement exists between the UK and Pakistan courts setting out a protocol as to how these cases should be covered, the protocol was not ratified under Islamic law. One senior member of the legal profession in Pakistan commented that the UK/Pakistan Protocol was not worth the paper it was written on. Pakistan is not a signatory county to the Hague Convention on the Civil Aspects of International Child Abduction, and consequently, there is little practical help available to parents in the UK whose children are unlawfully removed to Pakistan.

Statistics from the Foreign and Commonwealth Office confirm that in the last year, the instances of one parent abducting their children abroad have increased by 10% and believe more cases go unreported.

Their response? A campaign to warn parents of the risks and prevention steps, and an admission that the assistance they can give is limited once the children have left the country. The reason being they cannot interfere with the law in foreign countries (not even when the unlawfully abducted child is a British national?).

The clock is ticking, and harm being done while the Ministry of Justice sleeps. Sadly, it is probably only the explosion in cases that will wake them, and by then, it will be too late.