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.

LJ Thorpe on Radio4 - FNF/TCM Joint Press Release

An end to Payne?

Families Need Fathers calls for action to displace Payne v Payne [2001] 1 FLR 1052 by the Supreme Court, as the guiding case on relocation as a matter of urgency.

Relocation is a major cause of distress for the child and the parent left behind and it is likely to result in a complete loss of contact between the “non-resident parent” and their children. The leading authority in relocation cases is still Payne. The premise behind Payne v Payne is that not allowing the primary carer to take their child to live in another country will have an effect on the primary carer’s psychological wellbeing and hence the child's.

There is a growing consensus among Judges, notably the President of the Family Division (Re D (Children) [2010] EWCA Civ 50) and most recently Mr Justice Mostyn (F v M [2010] EWHC 1346) that a review of Payne v Payne is needed. Mr Justice Mostyn has argued that Payne rewards “selfishness and uncontrolled emotions". Family Law professionals also agree that its time is up.

Lord Justice Thorpe, who delivered the leading opinion in Payne, told the BBC Radio 4 Today programme yesterday (30 June 2010) that there is a need to “re-evaluate”.

Becky Jarvis, Policy Officer says “we know of cases where children as a result of Payne v Payne have been removed from one of their parents, their wider family, their school and their friends. It is our experience that the hard line taken in Payne v Payne has been followed, albeit with misgivings, by judges up and down the country. We see too many children separated from parents. If the consensus among judges is that, at best, Payne v Payne is out of date then this needs to be revisited as a matter of urgency. Even the judge who made that judgement thinks it is time to look at it again”.

“We understand that, after separation, life has to move on but we know that there are cases in which the primary carer decided to move thousands of miles away with the explicit aim of making a relationship with the other parent impossible. Neither parent should have a veto on the life choices of the other, but it is our strong view that the court needs to investigate the real motives behind relocations and act to protect the best interests of the children and their right to meaningful relationships with both parents and their wider families.”

Michael Robinson of the Custody Minefield commented “LJ Thorpe talks of the need for uniformity and convention, and that is the problem. He misses that the criticism of his guidance in Payne v Payne does not centre on the Family Division of the Courts being out of step with other commonwealth courts (which it is), but on its continued failing to take into account a compelling and overwhelming body of child welfare related research which directly contradicts his guidance.”

The Court of Appeal drops a clanger

In the judgment S (A Child) [2010] EWCA Civ 705, Thorpe wrongly cites Ward LJ’s finding in an earlier Court of Appeal case:

9. As Ward LJ observed in paragraph 9 of his judgment in the case of Re B (A Child) [2001] EWCA Civ 1968, necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person.

This is not what Ward LJ said, and he himself clarified this point in a case before the appeal court in G (A Child) [2008] EWCA Civ 1468. In that case, the trial judge had made a residence order in favour of the mother, and the appeal by the father came before Ward, who granted the appeal and revoked the residence order, leaving the contact order in place. So... unequivocably... you can have a contact order without a residence order.

The Red Book states:

"In this Act... 'a contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other; .... 'a residence order' means an order settling the arrangements to be made as to the person with whom a child is to live"

Ward’s actual comments in Re B, were:

9. It seems to me to follow that one cannot have a contact order without having first determined who the person is with whom a child lives because it is that person who has to allow the child to visit or stay with the applicant for the contact order.

This is not the same as him saying a residence order must be in force.

It is worth noting the Children Act Advisory Committee CAAC Report from 1992/1993, P25 guidance:

'Expressed concern that applications were still being made (and presumably granted) so as to provide the parent with care with the security of an order even though there is no dispute about the child's residence'.

If where the child residence is not contested, the ‘no order principle’ should apply. A residence order need only be made if residence is contested, or if there is a 'real' reason to make one. NOT just because there needs to be a contact order made.

Arguing that Thorpe's findings in Re S (regarding the making of residence orders) were made 'per incurium' (without due care) should present little difficulty, but we're already seeing Re S being cited in the family courts, and counsel suggesting that a contact order cannot be made without a residence order... but you know different, and so do we.