02 July 2010

Payneful Decisions

There has been considerable debate concerning leave to remove (LTR) cases following the comments made by Lord Justice Wall and Mr Justice Mostyn in Re D (Children) [2010] EWCA Civ 50 and Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam) respectively.

Relocation disputes are invariably the most hotly contested of all applications given the life changing consequences involved. But would adoption of the Washington Declaration (WD) improve decision making and outcomes for families?

If adopted, the WD provides that LTR decision making should be based on the best interests of the child which should be the paramount primary consideration, without any presumptions for or against relocation. It recommends that judicial discretion be exercised by weighing a number of factors in the balance.

Many practitioners consider it fair for parties to begin proceedings on a level playing field. Removing the presumption in favour of the relocating parent is however unlikely to make reaching a decision in LTR cases any easier - that is even if it is possible to escape presumptions being made.

The starting point in private law contact and residence cases (subject to a few narrow exceptions) is that it is in a child's best interests to maintain full relationships with both parents following family breakdown. Applying this principle to LTR cases, may inadvertently create an automatic presumption against relocation at the outset. Indeed the WD refers to the "right of the child separated from one parent to maintain ... direct contact with both parents ...". This in turn may result in an increased number of parental child abduction cases, due to frustrated resident parents taking the law into their own hands.

Even if presumptions are capable of being removed from the decision making process (which I am unconvinced about), the courts discretion under the WD will be exercised by reference to a number of factors, one of which is the views of the child subject to age and maturity. How then is the court to reconcile the tension between a child whose wishes and feelings are obviously contrary to their best interests? Which factor will take precedence?

This question arose albeit in the context of a residence dispute in Re A (A Child) [2007] EWCA Civ 899. Here residence was transferred to the father against the 8-year-old child's wishes. It was held that the short term disruption to the child was outweighed by the long term harm which would arise from the child having no relationship with his father if he remained in his mother's care. However 2 years after the Court of Appeal judgment, the father consented to a residence order in the mothers favour. The child had threatened to self harm if returned to the father's care and it was found that the decision to change residence had irreparably harmed him.

It is crucial that outcomes such as these are not replicated in LTR cases. Perhaps the answer is to remove LTR disputes from the Court arena altogether. The WD recommends promoting agreement through mediation. At first glance such a suggestion may appear unrealistic and inappropriate in such highly contested disputes. Court initiated mediation was however successful in resolving years of protracted litigation which included child abduction in the most unlikely of cases (see Al-Khatib v Masry [2004] EWCA Civ 1353, [2005] 1 FLR 381).

It remains to be seen whether the WD will be adopted and if so, whether it improves outcomes for families. One thing is however certain and that is that there is no pain free solution in LTR decisions.

Amandeep Gill is a Professional Training PSL at Jordan Publishing.

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