Heed Mostyn's Warning To Litigants-in-Person

There's been much discussion on Sir Nicholas Mostyn's recent warning in the judgment Bakir v Downe [2014] EWHC 3318 (Fam) to litigants-in-person, that the onus is on them to understand court rules, and it's not the role of judiciary to give legal advice.

Some felt it an arrogant thing for Mostyn to do, and in the way he did it. "Why couldn't his clerk simply explain court procedure rather than the litigant-in-person being brought back to court, and the judgment made public to humiliate him?" In fairness, it seems Mostyn's clerk had repeatedly answered emails from the litigant, and Mostyn decided enough was enough when the litigant became 'shirty'. He also makes a more subtle point that litigants should heed. Tread warily!

Mostyn's warning is important, and to my mind, necessary and unsurprising. A friend, in discussion made the point "when in a pen with a bull, if you poke it with a stick, expect to get trampled." After repeatedly breaking court procedure, and being in a position to seek legal advice but choosing not to, the litigant then poked Mostyn by asking his clerk for a copy of the judicial complaints procedure. My friend's view was it was a "dumbassed thing to do" (colourful language, but he is American, so I forgive him).

If the court order was wrong, the litigant might have applied for an amendment under the slip rule. He might have sought a further hearing for amendment. He might have raised an appeal. Repeatedly emailing the judge... no.

Is the judgment arrogant? I don't think so. Mostyn is no fool, nor unable to look at realities for the people who walk into his court. He's outspoken. He knows he has this tendency. Mostyn, when he first became a judge had a piece of paper in front of him saying "shut up" because he has a natural tendency (from years of being perhaps the UK's top divorce lawyer) of speaking his mind. On this occasion, he's turned that piece of paper around and placed it under the litigant's nose.

Legal Aid Cuts and Alternatives
Mostyn also points out that the courts are having to deal with the fallout of the Government's legal aid cuts, with fewer resources than they had before. I don't doubt his clerk's frustration at this, and believe that sense of irritation is shared across the board. It's the arrogance of Government, the lack of thought for a safety net, the appallingly inadequate thought given to how litigants can be helped in absence of legal advice where blame needs to land. Not on this judge, or his clerk. Myself, I walked out of a meeting at Westminster on LAPSO, legal aid cuts, and there being no solution other than "something needs to be done by the next Parliament" and a belief by politicians that the horse was still in the stable when they smashed the stable door months before. 45,000 cases had legal aid before... and now don't. The services which were struggling before legal aid was withdrawn have had their funding, staffing and resources cut. Little wonder there are quite significant advice vacuums and the courts can't fill this void no matter how much people wish they would.

I think it foolish to take a view that this judgment doesn't recognise the difficulties faced by litigants-in-person. I take from the judgment that Mostyn understands the hardship enforced on litigants through the Government's withdrawal of legal aid. I don't doubt matters would have been handled differently had the litigant not had the ability to afford legal advice. From the judgment, it appears clear that on a number of occasions, Mostyn's clerk had explained matters, but Mostyn decided enough was enough.

It was and is unrealistic to expect the judiciary and their support staff to carry the weight of giving legal advice due to cuts, just as it is unrealistic to expect the third sector to adequately fill the void when their funding was also cut to the bone. Lord McNally actually laughed at these cuts in a LAPSO meeting I was at. Doing more, with fewer resources, is a pathetically unrealistic goal. A car crash was bound to happen, but the drunk driver behind the wheel was the Government. Drunk? Stoned off their box would be more accurate, and ne'er having had a driving lesson. Don't blame the judge for frustration at the traffic delay, nor pointing out the problems, and that sadly litigants now have to cope with understanding what at times is an overwhelming number of rules, procedures and process.

Mostyn's judgment makes several points:

• The judiciary don't have the resources or time to act as an advice bureau... true;
• If you're in a position to seek legal advice, do;
• If you're not in a position to pay for legal advice, the onus is on you to research what you need to do, and how to go about it. A large part of what the Custody Minefield does is provide you with information to help (there's still more information we're working on, we offer the most detailed guides out there in a combined format, aimed at helping litigants-in-person, but our resources are limited too). We foresaw the Government was going to fail spectacularly in providing a safety net following legal aid cuts, and have done more to fill this gap than they did, with all their resources;
• The difficulties experienced today by litigants-in-person now is due to the Government enacting changes with no preparation or consideration as to the practical difficulties it causes;
• If you want the court to do something, you need to make a formal application according to court rules;
• Don't treat the courts like a call centre, nor treat judges and their clerks like call centre staff;
• Not all judges will be as patient or understanding as Mostyn;
• Don't poke judges with a stick unless you're very, very, very sure of what you're doing, and that the judge is plainly wrong (and even then, take advice and think twice about whether the battle is worth it);
• If you don't understand the rules (and even if you do), deference is a wise path to tread. Those who don't feel why, in this modern world, they should be respectful to what is 'just another human being' tend to get quite bruised.

The judgment is repeated below.

Let's abolish the Family Justice Council

I wanted to share with you excerpts from the Children in Families Committee (part of the Family Justice Council) written contribution to the Family Justice Review. It is a little old news, but I had missed it, and upon reading it, am somewhat scandalized at the content. I imagine most of you missed it too, as such  things tend to be buried on Government websites. Be prepared for a range of emotions, from surprise, to humour, to shock and perhaps anger. Perhaps their biggest insult was to the judiciary themselves. Read on...

Would you expect 'The Committee' (seemingly of professionals) to be seeking to subvert the principles of judicial discretion, when their basis for doing so is subjective opinion? Consider this...

The Committee feels that some healthy skepticism about the appropriateness of shared residence orders is required to counteract an apparent growing judicial willingness to make such orders in circumstances where they may not be appropriate.1

Have we got this right. The 'Committee' do not trust our judiciary? Surely there must be robust grounds for this? In the same paper, they admit there is no research as to the extent or outcome of shared residence orders being made by the courts. Shouldn't research come before the Family Justice Council (FJC) seeks to subvert judicial discretion?

What was the child welfare research to support such a finding?

The child mental health specialist member of the Children in Families Committee expressed a very firm view, based on her clinical experience, that shared residence orders are rarely in the best interests of children but are much more about meeting the needs and interests of their parents.

Her clinical experience. A single person's experience on the impact on child mental health. The fact that 'her experience' is contradicted by a wide body of educational, psychological and sociological research would have escaped the Committee, as it appears such decisions are made over a cup of tea and a rich tea biscuit rather than the analysis of impartial empirical research. Is this what our laws are based on?

You would hope that the author of the report would question this point him or herself. You would hope that, when advising the Family Justice Review, they would have a regard to accuracy, impartiality, and objectivity. Not at all. The authors dig a hole, and keep going. Consider the ignorance in what they go on to say about shared residence and its application in relocation cases (their words in italics, my criticisms come after):

Current case law means that in practice a parent who has a sole residence order will get leave to relocate to another jurisdiction with the children. Really? Doesn't the outcome turn on the individual facts of the case and arguments presented? What about motive? What about whether plans are reasonable? This seems, at best, a prejudicial opinion not in any way linked to the needs of the child in each individual case and at worst, justifies the view that many have that the courts rubber stamp relocation applications with scant regard to the impact on the individual child. Such prejudicial attitudes resulted in Moore-Bick LJ (the Deputy Head of Civil Justice) being parachuted into the family courts to clear up the mess left by 10 years' rigid adherence to Payne v Payne and Thorpe's beloved 'distress argument' (a review, I might add, that the then President of the Family Courts had declared would not happen in the Court of Appeal... oops!).2 Moving on, the author kept wielding their shovel. In a case where there is an international dimension, obtaining a shared residence order means that the parent who opposes a relocation application will have at least some prospect of succeeding in preventing leave to remove being granted. Are they suggesting that a parent should gain shared residence as a strategy to defeat a future leave to remove application? Ah, the chicken and egg stratagem! Nonsense. Any legal adviser with half an ounce of sense or experience knows that the legal status of 'shared residence' is unimportant, compared to the quantum of care (and the facts of the case!). Perhaps someone should comment to the author of the report that shared residence is not an automatic bar to relocation being granted (but let's not cite more authorities [common law] and rub it in)?3  The lawyer members of the Committee therefore believe shared residence orders may have a place in such cases at least where such an order reflects the involvement of the parents in their children’s life. Ahha... let us look at an actual fact...

The quantum of care time between mothers and father in intact families in society is near identical... differing, on average by only 15 minutes a day. My opinion? Not at all, as some of use do look at research before writing.4 Could there be a correlation between this statistic, and Mostyn J's assertion that shared residence orders were becoming the norm (again, sadly, a view which lacks the statistics to support it).

Again, had the Committee a basic knowledge of case law, they would know it was established in 2002 in Re A (Children) (Shared Residence) [2002] EWCA Civ 1343 that shared residence orders should be made if they reflect the reality on the ground. There are a long line of authorities since.

So if the lawyer committee members are right, that shared residence orders have a place in cases where the order reflects the involvement of the parents in their children's lives, the Family Justice Council should keep their ill informed noses out of the matter, and ideally be put out to pasture.

Still think I'm being harsh? Oh there are more priceless inconsistencies spewed out by this shovel wielding incompetent who seems to have an axe to grind against Sir Nicholas Mostyn (one of our more capable high court judges). Mostyn was Paul McCartney's brief. He was editor of Jordan's International Law. He's undoubtedly intelligent and widely respected by his peers, but his judgment, given in the cited case cast criticism on the thinking of the Court of Appeal, and indirectly, the recently retired Head of International Family Law.5 For a High Court judge to criticise guidance given in the Court of Appeal was rare, and likely unwelcome [could I understate this more?]. As many believe, the thinking of Mostyn was right, and as one of the most respected lawyers in the country before becoming a High Court judge, delivered beautifully (and we suspect, with some personal satisfaction, having had that same Head of International Family Law throw out his appeal only two years earlier).6

As justification for opposing shared residence, the Committee attempts to savage one of the reasons Mostyn views shared residence with favour (and a powerful one, based on a child's human right to family life). In judgment, he had declared:

"If one were to draw up a hierarchy of human rights protected by the ECHR [European Court of Human Rights], near the top would be the right of a child, while or he she is growing up, to have a meaningful participation by both of his parents in his upbringing;...”.

Note the words 'meaningful participation' rather than mere 'involvement' which became the diluted sop in the Children and Families Bill in response to years of outrage by the public at bias in the courts. How did the Family Justice Council seek to confront such a cogent argument? Read on... their inconsistency isn't hard to spot.

Whilst few would disagree with Mostyn J’s statement that a child has a ‘right’, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing, [but you know they want to] this is not a ‘right’ which children have ever been able to enforce against unwilling parents [shouldn't that be a role for the courts then, and our laws]. Rather, it reflects a moral and potentially legal obligation on the parent with care to facilitate a relationship where the non residential parent wants this [shouldn't our laws support moral and legal obligations]. Consequently, the Children in Families Committee of the Family Justice Council (“CIFC”) questions the implicit assumption that in order to achieve such meaningful participation in a child’s life, his or her parents must have the benefit of a shared residence order made by the court [such orders are sought when parents fail to uphold this human right for their child].

Bravo to the Committee's author on a fine example of cognitive dissonance in practice!

So consider... and let me repeat the where the Family Justice Council got it right... 'few would disagree that a child has a right to a meaningful participation by both of his parents in his upbringing.'

What might strengthen and uphold that right in family law... that a child has the right to shared parenting. Why then, did our Family Justice Council argue so vociferously against it? Why now do we see shared parenting or shared care removed from the Children and Families Bill? Why has the word 'meaningful' been removed and diluted to 'involvement' (which could be anything). Shouldn't our laws reflect societal norms? Shouldn't they be based, one would hope, on child welfare research? It's a little moth eaten now, but we published details of  a wide number of findings some years ago. There's lots more on our website.

http://www.thecustodyminefield.com/SharedCareResearch.html

What of the Committee's conclusion and recommendation in relation to shared residence orders... and this will shock you. They said they wanted to all but abolish shared residence.

The Committee would prefer to see them made only in exceptional circumstances, those where there is potential for relocation or where one parent is resolutely denying the existence of the other’s PR [parental responsibility] and a shared residence order is used to make it clear that either parent could, in the view of the court, provide a home for the child (the implicit threat being that if the recalcitrant parent does not mend his or her ways, a full residence order may be made in favour of the other parent). 

Far from wanting to see a child's right to the meaningful participation of both parents upheld in law, it seems the Family Justice Council wants to all but abolish it, ignoring the authorities which cite the appropriateness of shared parenting (developed over 20 years, and since Butler-Sloss was forced to overturn her own guidance to the courts which limited shared residence orders to exceptional circumstances).7 I suspected the FJC didn't want change. I didn't realise they sought to overturn 20 years of judicial progress!

Another reason why Parliament needs to introduce a presumption of shared parenting in law, because those who influence our judiciary are ignorant of research, ignorant of modern parenting in this century, and seek to impede the development of law even at the expense of judicial discretion.

When we see how the Children and Families Bill has been diluted, it is little wonder when such powerful groups have lobbied the Government (in the guise of 'experts').

Rather than abolishing shared residence, isn't it time we abolished the Family Justice Council, if they lack the dignity to resign.

Notes
 1. Annex 2. The Use of Shared Residence Orders. A Discussion Paper Prepared by the Children In Families Committee of the Family Justice Council as Part of the Family Justice Review (undated).
2. K (Children) [2011] EWCA Civ 793.
3. If you want us to rub it in, it was Re T (A Child) [2009] EWCA Civ 20.
4. Equal Opportunities Commission [2008].
5. AR (A Child: Relocation) [2010] EWHC 1346 (Fam).
6. G (Children) [2007] EWCA Civ 1497.
7. Re A (Children) (Shared Residence) [2002] EWCA Civ 1343

Judicial Opposition to Shared Parenting - Who sets social policy?

Rumours are circulating of retired judges, now incumbent in the House of Lords, raising opposition to the Government's proposed shared parenting legislation. No doubt we shall hear other grumbles of discontent in the coming months.1

The Government is seeking to introduce a presumption of shared parenting in law. Where there are case specific reasons why shared parenting is inappropriate and may expose children to harm, each judge will still be able to decide whether shared parenting is appropriate. So what is the problem?

Laws should reflect societal norm, and be subject to democratic process. Parliament, democratically elected, decides what our laws should be. Once set, one would expect the judiciary to adhere to both the letter and spirit of the law, but on the subject of shared parenting, historically, the judiciary have opposed Parliament's intentions. I raised this matter once with Sir Nicholas Wall, current President of the Family Division of the Courts, who replied that 'the judiciary do not read Hansard.' A fair reply, but one would have thought that once aware of Parliament's intentions, there would be guidance from the President to his judiciary.

So why is a presumption needed in Children Act statute? This is where the discussion gets uncomfortable for the senior members of the judiciary... because the courts are too inconsistent... because outcomes in the courts do not reflect societal norm... because outcomes from the courts likely contribute to mental health, delinquency, low academic attainment and other social and developmental problems for children... because the judiciary believe that they (as experts in law) have a better understanding of child psychology than the experts, and Government. From this, the judiciary have shaped social policy for the past 20 years, in opposition to the intentions of Government. 

An outrageous claim? Let's look at some 'real' evidence, but be mindful that if the senior judiciary accept our evidence, they also accept that their defense of judicial discretion has been at the expense of child welfare... but onto some of the evidence:

What is the norm in society? There has been extensive research done by the Equal Opportunities Commission, with studies done in both 2003 and 2007 on the division of parental care time. These studies found that in intact families, the amount of care time parents devoted to children differed by only 16 minutes a day (between mums and dads). Women work now. Parents share care. That's not a desire, to be shaped by Government policy, but a reality which should be reflected in law.2

What outcomes are commonly granted by the courts when parents separate? Arrangements for children are markedly different. We were surprised when the research came out.

On average, staying contact is only granted in 60% of cases, but it is the variation between the courts which on one level is shocking, but on another, is no surprise at all!3

There are some excellent judges. Modern, with an understanding of current parenting trends... but there are also dinosaurs whose ideas of family life remain in the 1970s. What we get from the courts is an inconsistent outcome. A lottery... and a presumption may help iron out some of that inconsistency by reminding judges of what society is today, and of what is known today about securing child well being.

What difference between two courts...In one... staying contact granted in 73% of cases.. in another just 28%. In one... all parents permitted some form of contact. In another, just two thirds. 

We help people with many court cases, and a common question asked is 'what are my chances'. There are so many variables outside of the facts of the case... and these are the individual opinions of CAFCASS Officers and members of the judiciary. So much depends upon the judge you get, and frankly, who you get is pot luck. 

Child Welfare and Shared Parenting

Is there a link between shared parenting and positive outcomes for children. Yes... and the benefits are seen in their educational, psychological and sociological development. They are 40% less likely to suffer mental health problems. Less likely to experience drug addiction, teenage pregnancy, and delinquency. Their IQ is likely to be several points higher. Wild claims? Not at all... read the research findings here.4

Have there been attempts to introduce shared parenting before? Yes... when the Children Act 1989 was introduced. Parliament's view, over 20 years ago was that if shared parenting was practicable, there was no reason to discourage it. Read the words for yourself...

"It is intended that another difference between residence and custody orders is that the new order should be flexible enough to accommodate a much wider range of situations.

In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it.

More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."5

Parliament intended that the new act would see shared parenting and shared residence become the common outcome for children affected by parental separation. Parliament’s thinking was ahead of its time, and has been upheld by a wide body of research in subsequent years, and we detail much of that research in our publications.

The more progressive members of the judiciary are well aware of the advantages of shared parenting, and Parliament's intentions. As expressed by Mr Justice Mostyn:

There is very good reason why such orders (shared residence) should be normative for they avoid the psychological baggage of right, power and control that attends a sole residence order, which was the one of the reasons that we were ridden of the notions of custody and care and control by the Act of 1989.6

Again the problem is, that opinion is not universal, so outcomes are inconsistent. The matter of shared residence could have been settled some 23 years ago, but for the wrongful interpretation by the then President of the Family Division of the Courts, Dame Elizabeth Butler-Sloss. Following the introduction of the Children Act 1989, Dame Elizabeth issued guidance which went counter to the intentions of Parliament. She informed the judiciary that:

‘shared residence orders should only be made in exceptional circumstances’7

10 years later, this position was reversed to some extent in common law, when the need for exceptional circumstances was removed, but still, shared residence remained uncommon, and now is common in some courts, but rare in others.8

Dame Butler-Sloss is now President of the Grandparents Association, an organisation which we have worked with closely in the past on various legal reform proposals and which has historically supported shared parenting. It will be interesting to see whether Dame Elizabeth represents the wishes of her charity or those of the Law Society, when the debate on shared parenting legislation comes before the House of Lords.

Does the Law Society represent the views of all the legal profession? No. We know many solicitors and barristers who have privately told us of their support for shared parenting. Perhaps the most articulate expression of support was given in the High Court by Sir Nicholas Mostyn, when he discussed the UN Convention on the Rights of the Child in relation to relocation cases: 

"...If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases."9

Had Dame Elizabeth read Hansard reports, this matter may have been resolved two decades ago. If the Law Society became experts not just in law, but in child welfare, they might have supported shared parenting many years ago. The research evidence is there, but plainly, they remain unaware as they claim it doesn't exist. 

So put simply... why should there be a presumption of shared parenting in law... to help correct the inconsistency of outcome in family court proceedings and better safeguard the interests of children.

We hope the new President of the Family Division of the Court, once appointed, will issue new guidance and be a champion of this reform. Social policy should be set by elected members of Parliament...

End Notes
1. Read the proposed amendments here http://www.thecustodyminefield.com/download/sharedparentingamendment.pdf
2. Working Fathers, Earning and Caring’, Equal Opportunities Commission 2003 & ‘Completing the Revolution: The Leading Indications’, Equal Opportunities Commission 2007, London.
3. Tables are taken from 'Outcomes of applications to court for contact orders after parental separation or divorce.' Joan Hunt and Alison Macleod. Oxford Centre for Family Law and Policy. Department of Social Policy and Social Work University of Oxford. Family Law and Justice Division. September 2008
4. http://www.thecustodyminefield.com/Factsheets/TCM-ResearchSupportingSharedCare.pdf

5. The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989)

6. AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at paragraph 52

7.The Children Act 1989 Guidance and Regulations, Volume 1, Court Orders

8.  D v D (Shared Residence Order) (2001) 1 FLR 495

9. AR (A Child: Relocation) [2010] EWHC 1346 (Fam) at paragraph 53

Heavens, it's Mostyn again

With some measure of trepidation, I find myself applauding Mr Justice Mostyn for the second time in as many days.

It is not a fear of being seen to be a fan of Mostyn that worries me, or praising a member of the judiciary, or for that matter having to answer allegations that I might have 'gone native'. There is almost a compulsion to parody the chants from a 1990s chat show, and stand outside his court cheering 'Go Nicky, Go Nicky'. I'm sure he shudders at the thought almost as much as I do.

Simply, Mr Justice Mostyn has produced yet another judgment where he cuts through the 'fluff' (in this case being 179 allegations and a bundle of 1,600 pages), and does so fulfilling his inquisitorial role, and with a large degree of pragmatism. The trial had become a circus, costing the father £120,000 and the state a similar amount on behalf of the mother. Appeal and retrial were sought, despite shared care now existing between the parties. The case had become a post separation litigation fuelled show rather than being centered on the best arrangements for the children. Mostyn, without red nose or painted tears, sends the circus packing.

I find I am now anticipating a 'Mostyn judgment' in much the same way as some of my contemporaries await an England victory at the World Cup. Does the High Court allow vuvuzelas in the public gallery?

http://www.bailii.org/ew/cases/EWHC/Fam/2010/1282.html

http://www.bailii.org/ew/cases/EWHC/Fam/2010/1282.html

Mr Justice Mostyn - A new judge in old shoes?

In an already noteworthy career and at only 50 years old, Mr Justice Mostyn QC had carved a reputation as the top divorce lawyer in the country, one half of the dream team who represented Paul McCartney; intelligent, widely respected, and a barrister who made his opponents tremble.

Only appointed to the High Court on 20th April, in less than 2 months, the Honourable Mr Justice Mostyn has given a landmark judgment which makes extraordinary reading.

On June 10th 2010, Mostyn gave his judgment in a leave to remove case. I have read many judgments, but none like this. This was remarkable.

Those who have followed my work will know I have been campaigning against the current application of legal precedent in leave to remove cases. The architect of that current 'binding' precedent is Lord Justice Thorpe. I believe Thorpe's reasoning in Payne to be ill-considered, unscientific, lacking in substance, and counter to the principles of the Children Act. I believe it has caused harm to thousands of British children. Sir Bob Geldof, who wrote the foreword in my Parliamentary Briefing Report on Relocation had the same opinion, and went further:

“The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children.”

You might expect the newly appointed Mr Justice Mostyn to be conservative in his opinions. You might expect him to be a traditionalist, reserved, not wishing to rock the boat. You would be wrong. His judgment, his opinion on Thorpe's guiding precedent in relocation cases was nothing short of ruthless. His reasoning cuts through the social guff and mumbo-jumbo that has beset leave to remove judgments under Thorpe’s guidance.

In 2008 as a QC, Mostyn came before Lord Justice Thorpe in a relocation case arguing against Thorpe’s own precedent with, in his own words ‘no little personal conviction’. The arguments were firmly repelled by Thorpe, and the orthodoxy of Payne v Payne reaffirmed. As any who have come up against Thorpe in a leave to remove case will know, Thatcher-like, the man ‘is not for turning’.

Two years on, with an international convention of judges having met in Washington in March and confirmed a child centred approach to deciding relocation cases, Mr Justice Mostyn went for the jugular. He clearly reasons out why the ideology in Payne v Payne is wrong. He cites the urgent need for the ideology in Payne v Payne to be reviewed in the Supreme Court. He turns the tables on 40 years of precedent, bringing child welfare back to the fore. In a single judgment, a herd of misguided sacred cows are slain. He reaffirms the desirability of shared parenting, questions the need for supervised contact where there is no evidence of risk, he reminds us of the child's Convention Right to Family Life, he reaffirms the paramountcy principle.

With such public criticism by the High Court of the Court of Appeal’s guidance, and that criticism having been so intelligently reasoned through, an urgent review by the Supreme Court has become a necessity.

Popular and controversial, Lord Denning was perhaps the last great judge, prepared to overturn what he considered to be ‘bad law’ in the pursuit of justice. It may be that Denning’s long vacant shoes have a new owner.

Download the full judgment here

Landmark Judgment in Leave to Remove Case

High Court Judgment calls for an urgent review of precedent in international family law by the Supreme Court

In December 2009, The Custody Minefield launched a campaign challenging legal precedent in relocation related family law which had existed for 40 years. Sir Bob Geldof wrote the foreword to our report backing our arguments. He condemned outcomes in the family courts as being barbaric and damaging to children. 58 Members of Parliament signed Early Day Motion 373 calling for better protection of child welfare in relocation cases (where one parent seeks to emigrate with the children following separation).

In January 2010, The Custody Minefield assisted the father in writing his submission which went before Lord Justice Wall in the Royal Courts of Justice. LJ Wall accepted the arguments put forward as compelling but that a delay caused by a retrial would not be in that family’s best interests. Lord Justice Wall, now President of the Family Courts, said:

There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.

On June 10^th 2010 in a landmark case in the Royal Courts of Justice:

The Honourable Mr Justice Mostyn accepted that the weighing of evidence in relocation cases is questionable, leads to too great an emphasis being placed on the disappointment of the relocating parent should their application for the children to emigrate be refused, and affords insufficient weight to the comparative importance of a child’s Convention Right to Family Life.

He further stated that it was his opinion that the that there was an urgent need for a review in the Supreme Court of the ideology set out in the existing legal precedent.

That the current ideology of the courts in international family law leads to selfless and virtuous parents being punished, and the selfish being rewarded.

Michael Robinson, who heads the relocation campaign said ‘I welcome this progressive judgment which recognises the importance of shared parenting and the current flaws in common law. Judicial decisions must be supported by contemporary child welfare related research rather than being based on out-dated precedent and unsubstantiated ideology. Research confirms that children face emotional, psychological and developmental harm when separated from a parent’s loving care.”

In Sir Bob Geldof’s words, in his foreword to our report last year “The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children and their families.”

The January and June 2010 case law and our briefing report can be downloaded by selecting the following links:

http://www.thecustodyminefield.com/Factsheets/AR_(A_Child_Relocation).pdf

Judgment given by Mr Justice Mostyn on 10^th June 2010

http://www.thecustodyminefield.com/Factsheets/D_Children_2010_EWCA_Civ_50.pdf

Judgment given by Lord Justice Wall in January 2010

http://www.thecustodyminefield.com/Factsheets/TCM-LTR-ParliamentaryBriefingReport.pdf

The Custody Minefield Parliamentary Briefing Report on Relocation, Foreword by Sir Bob Geldof

michael.robinson@thecustodyminefield.com www.thecustodyminefield.com

The Custody Minefield is the most visited site on the internet on matters related to international family law and has led the campaign in recent years to reform the law in this area. This month, we received our 100,000^th unique visit to our website.

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