New Case Law: Leave to Remove

H v F (Relocation) [2014] EWFC 11 does not provide new points of law, but is worth discussing none the less, and carries an important message.

The court was faced with a stark choice, a very young child relocating to New Zealand or remaining in the UK. Either situation would result in one or other parent having contact over some considerable distance and have an impact on their relationship with their child, and their child's relationship with them. Both parents were fully involved in the child´s care before separation, and both capable of providing adequate care. The mother had no support network in the UK.

The father had a visa to work in New Zealand so the parties were not on an equal footing in terms of their immigration status.

The maternal grandparents had maintained a non-combative stance, something which the paternal grandmother had failed to achieve. Additionally, the father had made allegations about the mother, and the court had formed an opinion that the father was highly critical of the mother, and if he became the parent with whom the child lived in the UK, the court was uncertain whether he would fairly represent the mother to the child.

Allegations by the father, including that the mother was a habitual drug user, were found to be untrue.

Litigants should note the risks of what may be viewed as an unreasonably combative stance, or in making allegations without evidence to support them.

An important factor in leave to remove cases are the parent´s willingness to promote contact and support contact.

Parents often forget that an important aspect of cases is credibility, how they present in court, and the approach they, not just related to proceedings, but to their ex-partner in general. When dramatic changes to one's life are being considered, it's understandable that parents become stressed, anxious and fearful. It's commonplace, and especially in leave to remove/relocation cases. At times, that emotional reaction lends itself to taking too combative an approach, which risks undermining their case. 

If both parents are at each others' throats, the court may decide the child needs to be removed from the conflict, so leave to remove may be granted. If one parent is combative, in terms of allegations and their presentation in court, and the other is not, the combative parent risks the court forming the view that the other parent is more child focused and more likely to support and promote contact.

In terms of allegations, it's important to raise the question as to whether something is a risk, or a real risk.

I don't view this case as representing a re-emergence of the distress argument in leave to remove cases as a dominant factor, as some may fear. There are a number of mitigating factors for leave to remove being granted. That said, there is an important lesson in the judgment, in that every course of action carries potential risks and rewards. To my mind, and in my experience, the combative approach is a high risk strategy and often unwise, and an approach best avoided unless there is very clear and compelling evidence to support that anxiety is justified, and that risks are very real. Not just a 'tactic' for court, but for life after.

 

W Children [2012] EWCA Civ 1307

Father applying for residence... mother appealing on the basis that the court is refusing a finding of fact on issues related to domestic violence. Appeal rejected. Mothers allegations grew as the nature of the case changed, and mother did not object to contact. W (Children) [2012] EWCA Civ 1307 (for full text)

 Paragrah 10 of the judgment holds the core:

 10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

"My client's position is this. That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress."

And she then set out how that would happen. Counsel told the judge: 

"She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad's conduct towards the children specifically." 

And I omit further words: 

"She is very clear she wants the children to enjoy their relationship with their father." 

I omit more passages:

"Your Honour, as I say, my client does understand that this will be drawing a line under her allegations. She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend."

 ...and paragraph 26 explains the judges' refusal of the mother's appeal:

26.Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong. In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother's allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father's care unsupervised and unsupported for weekends and over holiday periods. She consented to all of those orders. She was aware of the effect of the compromise in August when she agreed those orders. She did not then complain. She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care.