The Custody Minefield

New Content

2012-01-14T14:17:00.000-08:00

As part of our 2012 plans to continue to make family law more accessible, we're building key legislation into a smartphone format to enable parents, grandparents and lay advisors to access family law information wherever they are.

Now available:

The Children Act 1989 Part I
The Children Act 1989 Part II
The Hague Convention on the Civil Aspects of International Child Abduction
The Brussels II Revised Regulations
The UK/Pakistan Protocol

...more will be coming as we continue in our plans to build a comprehensive family law information hub. Next on the list is completing publishing of the remaining parts of the Children Act 1989 in a smartphone format. Parts I and II were our priority as these are the sections which are of particular relevance to private family law proceedings.

New guides have also been added:

Recovery Orders
Emergency Hearings
Tips when attending Court
The First Hearing and Dispute Resolution Appointment

...currently being written is a guide on Finding of Fact and Split Hearings

Opening our New Support Forum

2012-01-03T10:02:00.000-08:00

At The Custody Minefield, we get many enquiries by phone and email, on a wide range of topics related to family law.

Some six months ago, I considered setting up support forums at The Custody Minefield. A call on Christmas Eve from a desperate parent and the offers of support by a highly experienced team led me to decide the time was right now as the development work on the forum had been carried out in the Autumn.

Our Team
The offers of support have come from highly experienced advisors, who collectively have answered more than 10,000 posts on other family law advice forums. Myself, I was a moderator and advisor on one of the UK's leading charity's forum for 4 years. We know what we're letting ourselves in for, and have the experience to provide the support which people need, but we'll be doing things a little differently.

Other forums often fulfill a number of roles. Discussion about the organisation and its objectives and administration, general chat, self-help, debate, lobbying and campaigning. We want to provide a forum with one single purpose... providing support in a timely and targeted manner.

Our Service Standards
The forum has been designed in such a way that the support team instantly get taken to new posts, so that no question gets left unanswered. We have a system of 'traffic lights' which instantly draw attention to new posts. Users can find their own questions with ease to check on answers, and our intention is that every question gets answered within 24 hours. Whether we will achieve this goal is dependent on demand, but we'll constantly review our performance, and will increase the size of the support team if needed. The support team, as well as having substantial experience of forum management and administration are all experienced McKenzie Friends with experience of all levels of court.

Something New
We're not seeking to compete with other organisations, simply that The Custody Minefield's guides were viewed more than 275,000 times last year and we want to increase the level of support to our visitors. We already answer many questions by email, and by creating forums, we can provide a more structured support service. There's a need, which we intend to meet.

Structure
Having experience of forum advice, and with the opportunity to build the forum from scratch, we've had the opportunity to consider a design and structure which we believe to be ideal.

The forum has been divided up into specialist areas, and against each are guides so that as well as posting questions, the forum users have instant access to information. We'll be adding more guides over the coming year and several are in production now.

Forum users' anonymity will be protected, and users are encouraged to use pseudonyms and not post information which may identify their children. We'll also ensure that all users are treated with respect.

For the New Forum User
Not everyone has experience of forums, and we appreciate some people are technophobes. To help, we have two guides to help, the first being a Guide to Registration, and the second being a Getting Started Guide. More will be created based on what our forum users tell us they need.

Beliefs
Our team all ascribe to the belief that no child should be denied a meaningful relationship with both parents so long as there is no risk of significant harm. Assisting parents and the wider family to secure arrangements which secure the children's welfare is a primary goal.

We care. This was the reason why The Custody Minefield was set up 6 years ago. With the Government's intention that legal aid will be withdrawn from the majority of cases, there is need for more support. According to the Government's own impact assessment, it's likely some 53,000 cases will lose legal aid. A safety net is needed, which we want to provide.

We're known for having ambitious goals, whether it be on lobbying, or getting support information out to many thousands of parents. We're also known for innovating.

Opening Date
The forums are open for registration from 6th January 2012. After registration, accounts will be activated within 24 hours.

Testing
Please bear with us during the beta-testing phase. The forums have already been extensively tested, but as with any new software, we expect the odd bug. There's an area on the forums where users can report any bugs they find, and where we can let you know that they're fixed.

Registration Fees
Initially, the forums will be free during the beta-testing phase. Depending on usage and demand, it may be necessary to charge a fee in the future, but this will be a modest amount sufficient to cover costs and ensure we have the right people behind the scenes to deliver the service that you'd expect from us. If we do decide to charge a fee, we'll give at least 7 days notice to all existing users, and publicly on both this blog and on the main website.

Where to find our forums
We recommend you visit www.thecustodyminefield.com/forum.html where you'll find the guides on registering and getting started.

2011 Review and some of our 2012 Plans

2011-12-31T18:13:00.000-08:00

It's been another busy year! Our guides were viewed 276,588 times in 2011... up 255% on 2010.

2011 - What We've Achieved - Completed Projects

10 New Smartphone Guides

3 New Smartphone Based Case Law Summaries

2 New Kindle Based Case Law Reference Books

Leave to Remove Case Law (full text of 7 judgments)
Internal Relocation Case Law (full text of 11 judgments)

2 New forms in Word Format

Form FM1 - For Mediation
Brussels II - Section 41 Certificate - where parents wish to make UK made contact orders enforceable in other European countries (excluding Denmark)

2011 - Updated Content

We had the new court forms up quicker than HMCTS
We've updated our Leave to Remove guides and case law sections following the review of Payne v Payne
We produced new guides taking into account new processes for mediation

2011 - Work in Progress

A new, updated kindle book on Leave to Remove
A new, updated kindle book on Internal Relocation
Support Forums - fully built... entering beta test phase on January 6th 2012
A new smartphone guide on Appeals

2011 - Lobbying Successes

After almost 2 years of lobbying, speaking at Westminster, our report to Parliament supported by Sir Bob Geldof, and two Early Day Motions... in June 2011, Payne v Payne was finally reviewed by the Court of Appeal. Payne v Payne is now viewed as 'useful guidance' rather than binding precedent, and not applicable where parents share care.

2011 - Family Justice Review Consultation Responses

We submitted our own initial response to the Family Justice Review's consultation, then teamed up with the charity Families Need Fathers in response to the Review's interim report.

2012 - Plans (so far)

Completing the 4, ongoing projects - launching the two new book titles, publishing our Smartphone based Appeals Guide
Support Forums going fully live
New case law resources
A new and updated guide to Shared Residence - moving to kindle format
Quick Guides - Applying to Court
Webinars for the charity Families Need Fathers
Additional smartphone based guides on various aspects of the legal process in family law.

We've a couple of other surprises too for later in the year... keep up-to-date with new content, updates and releases, follow us on twitter @TCMFamilyLaw and visit www.thecustodyminefield.com

According to the Government's own impact assessment, 53,000 cases are likely to lose legal aid if their plans go ahead. We'll be ready to fill the information void.

Judicial Modernisation - Ryder's in the Storm

2011-12-29T21:58:00.001-08:00

In November 2011, and following the Family Justice Review announcing their recommendations, Sir Nicholas Wall, President of the Family Division of the Courts announced that Mr Justice Ryder was to be appointed to oversee judicial modernisation "in recognition of the importance of judicial leadership in relation to making the court process more efficient while ensuring all parties' rights are properly protected".

Mr Justice Ryder is highly capable. The Northern Circuit's presiding judge, he described himself to an associate of mine as 'not the youngest ever high court judge, but the second youngest'. Undoubtedly a rising star, and intelligent.

The Family Justice Review had proposed the creation of a Family Justice Service, sponsored by the Ministry of Justice, to tackle 'shocking' delays in family court proceedings and to improve inter-agency collaboration. It should not come as a surprise that the judiciary are opposed to this. Sir Nicholas has put forward an alternative proposal that there be a Family Business Authority headed by the judiciary:

The authority is the operational decision-making part of the HMCTS Board for family justice issues. “Its terms of reference and makeup reflect the constitutional guarantee that the Framework Agreement (between the Lord Chancellor and the Lord Chief Justice) provides for judicial independence.”

The judge said he acknowledged that judicial independence was “something of a war horse which is often wheeled out inappropriately….. but here it is a matter of very significant constitutional importance”.

The creation of a Family Justice Service would see the management of cases move from an independent judiciary to a Government Department. The Family Business Authority would see the judiciary retain control, and is the option favoured by Mr Justice Ryder and the Judicial Studies Board.

In the 1989 Children Act, the Government made clear that delays in deciding arrangements for children were harmful. More than 20 years later, the Family Justice Review acknowledged that shocking delays exist and that inter-agency working is inefficient. The judiciary have attempted to manage inter-agency working via local Family Justice Councils which are chaired by the judiciary. Why is modernisation required? The Family Justice Councils and judiciary have failed to ensure that our system of family justice adequately safeguards child welfare.

The Family Justice Council was established in 2004 with the aim of stimulating better and quicker outcomes for families and in the family court service. The council's key roles are to:

Promote an inter-disciplinary approach to family justice
monitor how effectively the system delivers the service the Government and the public need and,
advise on reforms necessary for continuous improvement

Sir Nicholas Wall is protective of the Family Justice Council. “We should also, in my view, be wary of creating additional discussion forums in family justice. There have been too many to count, not all of which have added any value despite the cost of their creation and operation. The exception which proves the rule is the Family Justice Council.” We agree that for there to be improvements, another committee or quango is unlikely to be of assistance when the system requires a centralised, top down management structure which has control of all resources required to fulfill its objectives.

Can Mr Justice Ryder succeed where the Family Justice Councils and his predecessors have failed? We believe he faces a task made impossible by the constitutional structure and self-interest of our family justice system. Why? Four reasons:

Judicial independence and the fiercely protected individual judge's wide ambit of discretion in how cases are determined. Ryder has previously proposed there be more central guidance. This in itself defeats the judiciary's argument that judicial independence is sacrosanct. You cannot straddle two boats sailing in opposite directions. We agree with Ryder that there needs to be greater consistency, but doubt this can happen when each judge is 'king in their own court' which we believe to be a fundamental reason for the inconsistencies we currently see. In what 'Business Authority' does every individual member of staff have automonomy in their day to day work. In what business can middle to senior management only be sacked if voted out by both Houses of Parliament.
A Family Business Authority has nothing to do with business and cannot be an authority when it does not control budgets, resources, and where there is little effective monitoring of performance. Any successful business also has independent auditors and direct accountability to shareholders who can hire and fire.
CAFCASS are accountable to the Department for Education. Her Majesty's Court Service is an agency of the Ministry of Justice. The Family Justice Council is an independent body sponsored by the Judicial Office. Judges carry out a mix of criminal, civil and family work, each of which has separate divisions and heads.
I doubt the Family Business Authority will objectively tackle resourcing. There are seemingly too few judges, their holidays are too long and salaries too high, with a District Judge in the Family Proceedings Court earning £102,921; a Circuit Judge earning from £128,296; a High Court Judge earning £172,753; and a Lord Justice of Appeal earning £196,707. Compare this with an MP who earns £65,738; a Minister who earns £134,565; and our Prime Minister who earns £142,500. Could there be more judges, on a lower salary?

Our High Courts don't open until 11th January, close on 5th April and re-open on 17th, are closed for another week in June, close again for 8 weeks in the summer and break up on 21st December.If Mr Justice Ryder wishes to create capacity in the courts, cut judicial holidays to 6 weeks a year. This alone would increase capacity in the High Court by 13%.

We need specialist and dedicated family judges focused on family work. The President of the Family Division of the Court appears unconvinced of this.

Sir Nicholas has said that he is doubtful about judges having an unvarying diet of family work and “My personal view is that for the circuit and district benches, a mixed diet of family with crime and/or civil is the best way of keeping sane, particularly with the enormous pressure of work under which the bench has to operate.” No doubt the CAFCASS Officer or Social Worker or Family Law Solicitor would like the same choice but most retain their sanity without the benefit of 13 weeks' holiday a year or a salary greater than David Cameron's or the variety of work that the judiciary seemingly need. Is a High Court Judge's work more demanding than that of the Minister of Defence with responsibility for our troops in Afghanistan and Iraq, or George Osbourne's in the current economic crisis?

Sir Nicholas says there needs to be cultural change, but his attitude to the needs of the judiciary is demonstrative of the problem. Who does our current structure serve... the public or the practitioners? If a structure doesn't work, and management fails, there needs to be a new structure and new management.

What is more sacrosanct, judicial independence, or succeeding in providing an efficient service which safeguards child welfare which should be the primary purpose of the family justice system before any consideration as to tradition, protectionism, or ivory towers. What is a constitution for?

Can Mr Justice Ryder modernise the judiciary and deliver us an efficient Family Business Authority? Perhaps the kindest way to answer is that the best man for the job was chosen, but without the necessary powers, and faced with the culture and protectionism of his peers, we can't see how he can.

Family Business Authority - What point without accountability?

2011-12-05T15:21:00.000-08:00

Sir Nicholas Wall, President of the Family Division of the Courts, has called for there to be a Family Business Authority lead by the judiciary to ensure better case management and judicial continuity. He admits that there will need to be a cultural change within the judiciary for this to be effective. Sir Nicholas has also said he does not believe that solicitors extend court proceedings.

On this latter point, perhaps the missing word is 'deliberately'. I've seen countless cases where solicitors are disorganised, fail to manage their clients in terms of filing statements, with statements being filed weeks, if not months late. There is rarely a comment from the judge. Deadlines pass, and I routinely get asked 'what should I do?' by the confused litigant who had assumed that a judge's directions carry some weight. The litigant-in-person panics about filing and serving a statement on time, only to find the 'professionally' represented 'other side' dragging their heels and the courts offering no sanction. Cafcass reports are late, and at times only appear on the day of a hearing, in clear breach of Family Proceedings Rules. Evidence gets dropped into the mix at a hearing without notice, court bundles are not agreed, and again, the amateur litigant-in-person sees the professional solicitor leave the production of the bundle to the last minute (so much for an equality in arms). Perhaps if Cafcass and the legal profession faced a daily fine for late filing, late production of bundles, late reporting etc, we might see the desired improvements in time and case management.

What is lacking is not a 'business head', but professionalism, organisation and accountability.

Should we trust this new Family Business Authority to deliver? Wall seeks to avoid interference by politicians in the running of the courts, but the reason why a new authority is required is because the court has failed. 22 years ago, Parliament gave responsibility for time management to the judiciary, and made this a statutory duty. The second principle set out in The Children Act 1989, after a child's welfare being the court's paramount consideration is:

"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

The judiciary has failed to safeguard child welfare through their failure to rigorously uphold this principle. A matter which could be resolved in days often takes months, if not years. We agree that a Family Justice Service mostly staffed by ex-Cafcass Reporters may not be the best organisation to deliver efficient case management... 40 weeks for a Cafcass Report... but the judiciary's track record is little better.

Giving the Bar Council’s Law Reform Committee lecture, Sir Nicholas Wall said that ‘active case management and judicial continuity are the two principal contributions which the judiciary can make to the problem of delay’.

Sir Nicholas, why, in 22 years, haven't you done this before, and why should we think you can deliver this now? Perhaps OfStEd should be brought in to monitor case management, and report back to Ministers, and you should be held accountable for missed targets. Perhaps 'the wide ambit of judicial discretion' needs to be curtailed to deliver a more consistent and less uncertain (if not haphazard) service. I can see no constitutional reason why we need a family court independent of Government. Perhaps if the judiciary were properly accountable, we might see the improvements that have been lacking in the past 22 years.

I might be mistaken, but these latest recommendations to 'improve' the system may simply be a late attempt to retain control after two decades of failure.

On one other point, Wall suggests that it is a bad thing for there to be more litigants-in-person when and if legal aid goes. One hopes that this is due to a belief in the need for justice and upholding the ancient right of an equality of arms. To further these noble aims, we await his issuing new practice guidance granting rights of audience for McKenzie Friends whenever the litigant requests this... surely it should be the litigant's right rather than the judiciary's reluctant gift.

2011-12-03T16:12:00.000-08:00

The number of times our guides and The Custody Minefield Website have been viewed in the year to the end of November.

We've eight new items of content uploaded this weekend.

The first is a Smartphone Guide on Courts and Judges.
The second is a Smartphone Guide on Section 91.14 Orders
Then we added a Smartphone Case Law Summary for Section 91.14 Orders
Within that Summary, are 5 pieces of case law which can be downloaded:

Stringer v Stringer [2006] EWCA Civ 1617
Re C-J (Section 91(14) Order) [2006] EWHC 1491 (Fam)
Re S (Children) EWCA Civ 1190
A (A Child) [2009] EWCA Civ 1548
C (A Child) [2009] EWCA Civ 674

No More Bedtime Stories from Dad in Broken Britain?

2011-11-24T14:36:00.000-08:00

Changes to Government housing policy and social services' meddling present new barriers to staying contact

When parents separate, there is rarely the equity to provide both with homes of a sufficient size for the children. If they are in social housing, one must move out, and try to find accommodation which can also house their children when they stay.

From January 2012, if you're under 35, not the 'primary carer', unemployed or on a low income, the Government may pull the rug (bed and bedroom) from under your children's feet. At the same time, the Government's talking of making it easier for employers to sack staff.

From 1st April 2011, the rates for Local Housing Allowance were reduced across the country making the situation even harder.

I've been contacted by a local father who has received notification from the council that his housing allowance will be cut from £350 a month to £210. The father was granted staying contact on the basis he could provide two bedroom accommodation so his child had their own bedroom. When receiving the larger allowance, he had been able to top up the allowance from his modest benefits.

He might get this condition relaxed (the number of bedrooms... not the cut in housing benefit), but life is made more complex as social services have said that if he shares a property, all other adults in the property must be CRB checked before the child can stay with him.

From January 2012, single people under the age of 35 will no longer receive housing benefit based on one bedroom, self contained accommodation. They will be expected to house share. How many children will then only see one parent for outings, and lose a critical aspect of their family life?

Would it be acceptable for children to be removed from a mother because a council were unable to house them?

At Christmas, it's part of a Dad's greatest role to sneak into the bedroom (on behalf of Santa of course) and leave presents at the bottom of the bed. Now it seems this will only happen if you can cram two beds into the one room, and once social services have checked that all other adults in the property aren't child molesters.

A father may have shared residence. He may have the children living with him 3 nights in 7. It seems he is to get no help with housing. He gets no child benefit. No working family tax credit. He pays 4 nights CSA despite also covering the costs for the additional 3 nights.

Broken Britain just crumbled a little bit more. It seems the Government is going to make it even harder to be a committed and loving parent, and what happened to the commitment to shared parenting? It needs more than words.

FJR - Failed Justice Review?

2011-11-02T16:17:00.001-07:00

The Family Justice Review (FJR) Final Report is released today. One part which may surprise readers is 'There was general agreement in the consultation that the legal framework is robust and that the welfare of children must be the paramount consideration in all decisions affecting them.' If you can hear me above the self congratulating applause, perhaps someone should remind the consultation body that the United Nations found the UK to have the unhappiest children in the developed world in 2007. David Cameron's aim to fix Broken Britain is not assisted by this report's recommendations.

We'll start with our own quick review. There is little if any trust in the family courts. National broadsheets have campaigned against the courts' secrecy; this year we've seen the courts backpeddle from their 40 year old untenable position in leave to remove cases; the application of the legal framework has been criticised by leading legal practitioners and even a few brave members of the judiciary themselves. CAFCASS has been deemed to be a failed service. Delays beset the service. Statutory contact enforcement measures in the Children and Adoption Act are only sporadically used. Wishes and feelings can be ignored, manipulated, or trump considerations as to children's needs. Parents' roles are undermined by unelected state bodies which are largely unaccountable and undemocratic. Even the relatively ineffective Office for Judicial Complaint is to go.

My own feeling is that the wide ambit of judicial discretion leads to many inconsistent outcomes and sees cases of identical nature can having very different results... all dependent on which judge hears them. Certain courts and judges are viewed with dread. Judicial continuity can be wonderful for some, but a nightmare for others. Family Justice remains a lottery in terms of outcome.

Within the FJR report, the President of the Family Division of the Courts is quoted as saying 'I…agree that the Children Act 1989 represents “the most comprehensive and far reaching reform of child law” and that it remains “the overarching legal framework for family law as it applies to children”. I welcome and agree with the Report’s positive attitude to the Act.'

This is somewhat at odds with the reality that the judiciary failed to acknowledge Parliament's intention behind the Children Act. By way of explanation, Sir Nicholas Wall, President of the Family Division said to me in 2010 that the judiciary do not read Hansard. Had he have done so, or had his two predecessors, they might have read Lord Kilbraken's prophetic concerns, and the hollow reassurances of the Lord Chancellor back in 1988. [Hansard Debate (19 December 1988, page 1217 to 1219)]

Lord Kilbracken: ".... As I said in debate, I always thought that was a very good arrangement, where both parents had a residence order and the children went to each of them in succession." ".... However it seems to me that when this definition arises we should emphasise that, by not having the word "person" in the singular in line 43, the residence order may apply in most cases to the father and the mother.

The Lord Chancellor: ".... As I explained earlier, by virtue of Section 6(c) of the Interpretation Act 1978: "Words in singular include the plural and words in the plural include the singular".

Lord Kilbracken: ".... I am very glad to know that will be on record, although of course what is said in your Lordships' committees on the record is in fact never brought up again in any court. But, all the same, I am satisfied by the noble and learned Lords assurance that the singular includes the plural. Therefore I wish to withdraw the amendment."

In essence, the concepts of custody and access were simply renamed residence and contact (which the FJR report seemingly accepts). The intention that shared residence should be commonplace was resisted (and indeed limited by the then President's 1991 guidance to her family court judges). The Children Act 1989 became what the judicary wanted, rather than what was democratically intended. I remain unconvinced that any review, or enacted reform, will be supported by the judiciary as a whole.

One can't help wondering with this current review how hard the judiciary have lobbied to see their preferred and somewhat antiquated social model maintained, and this despite the Prime Minister calling for 'meaningful' involvement of fathers in childcare, and his party's commitment to dispense with the need for grandparents to apply for contact. So much for our judiciary being defenders of democracy!

The review panel was appointed by Labour, whose model of social engineering, along with the judiciary's majority preference for a primary carer has led to what Ian Duncan Smith described as Broken Britain. The review was headed by an economist. The review was always going to be concerned more with cost cutting than child welfare.

A further question not addressed by the review is why we need an indepedent and unaccountable judiciary in the family courts? There are arguments for independence in the criminal and civil courts, but these don't held for determining arrangements for children. In what other system does each practitioner choose how to do their job and successfully both scrutiny and accountability. Would we accept each individual teacher having the right to choose how and what they teach our children? Why then is the judiciary's 'wide ambit of discretion' sacrosanct?

It is fact that single parenting, and reduced paternal involvement leads to higher levels of teenage pregnancy, higher levels of youth crime, more instances of poor adolescent mental health and lower levels of academic achievement. Despite this, the FJR, presumably influenced by those resistent to change, cite the Australian research which is not overwhelmingly anti shared parenting, and the majority of that research relies on low sample sizes (meaning the findings are neither definitive or robust). No mention by Norgrove that the three countries which have the happiest children in the developed world (in the UN 2007 report into child wellbeing) have a presumption of shared parenting.

We do not accept that a rebuttal presumption of shared parenting puts children at risk. Where there is proven violence or a risk of significant harm, the state has an obligation to protect child welfare. We do not see why the state interferes with a child's right to the meaningful involvement of their parents in their lives where there is no risk of significant harm. Perhaps next we will see parents require a license to conceive or courts granting parenting orders before parents can take a baby home from hospital.

While selectively citing parts of the United Nations Convention on the Rights of a Child in terms of recognition of wishes and feelings (which already exists), the FJR's recommendations fly in the face of the presumption of a child's right to both parent's meaningful involvement which is actually enshrined in the Convention and the UK is supposedly committed to. The FJR suggest that the term meaningful will lead to long court battles without a definition. We supplied a definition in our own response to the FJR. It's not rocket science.

In short, I do not believe that the FJR findings best protect child welfare, but instead maintain the status quo for a failed single parenting social engineering model which research has shown to be harmful to child welfare and less advantageous to child development. That model does not reflect society today in intact families, where father/mother childcare time is almost equal (on average, parental childcare time only differs by 15 minutes a day - 2007 Equal Opportunities Research Findings). A presumption of shared parenting exists for intact families without any state paranoia or welfare officer meddling, so why the extreme fear when parents separate and the FJR's refusal of a presumption of meaningful parental involvement post separation? Surely this is unreasonable state interference in family life? Primary carer models reflect last century parenting. A presumption of shared parenting with meaningful parenting time being defined would lead to shorter and reduced numbers of proceedings. Why battle when the outcome is less uncertain? Who benefits from the current adversarial and 'up for grabs' system... the lobbiests perhaps, the legal profession, the welfare officers, and the judiciary. Families lose out as an industry protects itself.

The report quite rightly recommends mediation, but renames Alternate Dispute Resolution as Dispute Resolution Services. We agree with the greater use of mediation, but this was introduced back in April 2011, as were parenting information programmes. In 2007, the Legal Services Commission found that only one third of legal aid solicitors mentioned the option of mediation to their clients. A shift in attitude is needed, and mediation takes business away from solicitors.

The FJR report would be better entitled the Family Justice Process Review, as much of it relates to recommended structural changes. A new Family Justice Service (FJS) to incorporate CAFCASS and other ancillary services related to proceedings. Indeed, the FJS will be largely staffed by ex-CAFCASS officers. Some view with horror the prospect that this failed service will see its powers and role increased. It was a Parliamentary Select Committee which found CAFCASS not to be fit for purpose.

There are proposals for a new computer system. The Government does not have the best track record for introducing new computer systems. The FJS would also bear responsibility for safeguarding checks at the commencement of court proceedings.

Judges will be responsible for managing a more structured judicial service, despite this not being their area of expertise (e.g. organisational/resource management). A single court with three levels of judges (magistrate, district and circuit) to hear cases dependent on complexity will make matters simpler. Fair enough that the High Court remains separate to hear the most complex cases and those with an international aspect.

The report recommends a Family Justice Board to promote greater inter-agency liasion. Wasn't this was Family Justice Councils were created for?

There will be a presumption of shared parental responsibility (PR). This is a fudge, as shared parental responsibility already exists in law for most parents and the Government has been working to re-educate teachers and doctors about what PR means. Despite the FJR's supposed commitment to shared parental responsibility, they recommend nothing to assist the declining number of fathers without PR. If Cameron wants more fathers involved, have all biological fathers automatically have PR, and apply this retrospectively. The FJR should have recommended this as part of their 'commitment'.

We agree with the Review Panel that the concepts of 'Residence' and 'Contact' should be repealed, and this was our own suggestion within our consultation response. We had recommended these unnecessarily divisive terms be replaced with parenting time, and arrangements be set out in a Parenting Time Order. The FJR preferred the name Child Arrangements Order... fair enough, and a better name. A step forwards was that this order would allow the parents to take the child abroad for up to 28 days (which will hopefully remove the need for Specific Issue applications in the future). It is recommended that Prohibited Steps Orders and Specific Issue Orders remain which was also our recommendation.

Mediation and 'Alternate Dispute Resolution' remain a primary focus, in keeping with the Government's own recent reforms. Rather than Alternate Dispute Resolution, the FJR recommends that this should be termed Dispute Resolution Services. There is a recommendation that breaches of orders within 12 months of an order having been made should not require a return to mediation, but involve judicial continuity and enforcement. Again, fair enough, but what happens will be down to the individual judge.

We were disappointed that the FJR is recommending that Grandparents must still apply for permission before making an application for contact or other orders. This seems to us an entirely retrograde step, as political parties had made manifesto commitments to remove this unnecessary hurdle.

In Summary
In summary, we view a number of the proposals to be simple rebranding; we do not believe the resources or funding exist to pay for the new systems or restructing that the FJR are calling for and we are not convinced that the skills exist within the existing bodies to effectively manage the structures that are proposed. The proposals fail to address the public's concern about the family justice system while a lack of transparency, little accountability and inconsistency in judicial decision making goes largely unaddressed. We do not believe the proposals adequately benefit child welfare or support the UK's commitment to the UN Convention on the Rights of the Child.

Download the report

200,000 hits so far in 2011

2011-10-11T17:52:00.001-07:00

We've passed 200,000 hits in 10 months!

Just to announce we've broken another milestone today. Page and guides on the Custody Minefield site have been viewed more than 200,000 times so far in 2011.

We aim to help parents in need, by providing information at a time when our legal system appears bewildering and confusing. We will continue to produce new and more accessible guides, information sheets, electronic books and resources, to help parents and the wider family be informed, and maintain and secure their relationships with the children of the family.

In the past two years, we've further inovated by producing one of the first electronic family law books, and the only one on shared residence. We've produced 40 guides for smartphones. The first kindle based case law reference guides. Guides on dyslexia and the courts. The only guide on emergency protection orders for the public. We were the first to provide template letters to help non-resident parents be involved in decisions about their children's schooling and medical matters. Again, we were the first to produce freely available MSWord based templates for a wide range of court documents including position statements, statements, scott schedules, bundle documents and more.

Sometimes it just helps to know someone cares. We do. We'll keep the information coming to you, just so long as we see the need.

Michael Robinson

Updated Content - Leave to Remove Case Law

2011-09-03T21:19:00.000-07:00

In the July 2011 judgment K (Children) [2011] EWCA Civ 793, there is mention of a case which at that time was unreported, and where leave to remove was refused in the High Court.

"139. Very recently Theis J in C v D [2011] EWHC 335 (Fam) took the same approach as Hedley J in a case in which the children spent 20 days with their mother/10 days with their father during term time and the holidays were split equally."

In C v D, heard in the High Court by Mrs Justice Theis DBE, it is worth noting her judgment based on considerations set out in the Welfare Checklist (section 1(3) of The Children Act 1989) and her finding that relocation was not in the children's best interests, despite accepting that her decision would be devastating to the mother who wished to emigrate with the children.

"65. Having carefully considered all the evidence and the welfare checklist I have come to the clear conclusion that the welfare of each of these children is met by the mother's application being refused. I recognise that this will be devastating for the mother but I have come to this conclusion primarily based on the evidence that the children are thriving under the regime the parents have devised in this jurisdiction and the adverse impact on their time and relationship with their father if they did move to south USA. For the reasons set out above I do not believe it can be effectively replicated if the children move to south USA and that any different regime will not meet the children's needs. With the welfare of these children as the lodestar by which I am guided I am satisfied that the move to south USA would not meet the welfare needs of these children, however disappointing that decision will be for the mother."

The case C v D is now added to our Case Law for Kindle - Leave to Remove Case Law Reference Book which includes the following cases:

K (Children) [2011] EWCA Civ 793
Re Y (Leave to Remove from Jurisdiction) [2004] FLR 330
Payne v Payne [2001] EWCA Civ 166
AR (A Child: Relocation) [2010] EWHC 1346 (Fam)
C v D [2011] EWHC 335 (Fam)
W (Children) [2009] EWCA Civ 160
Re F (Children) [2003] EWCA Civ 592

The Kindle reference book now includes URL addresses and hyperlinks so that the case law can be downloaded to a PC in PDF format, and printed.

Wall attacks Hemming: Who should resign?

2011-08-28T02:04:00.000-07:00

Sir Nicholas Wall, President of the Family Division of the Courts has called for John Hemming, the Liberal Democrat MP, to resign for having used Parliamentary privilege to criticise Doncaster Council for having sought to imprison a private investigator for having spoken about details of a case at a meeting in Westminster.

It's an interesting argument for a number of reasons.

The investigator had been libelling and slandering a father who was falsely accused of being a paedophile. Hemming has said that he spoke out, not about the rights or wrongs of the case, but on the issue of secrecy.

There can be no doubt that Hemming causes the judiciary considerable indigestion. He challenges court secrecy rules, speaks out about cases where he believes an injustice may have been done, and has caused considerable irritation by using Parliamentary privilege to break injunctions where celebrities have sought to stop details of their infidelity being made public.

I think Wall has taken the right step in releasing details of this case, which has enabled the father to clear his name. In some ways, his decision is somewhat peverse though. In defending the courts against Hemming's attacks concerning excessive court secrecy, he lifts that secrecy to defend both the court's reputation and the father's character.

There is a separate issue that the making of false allegations is very common in family court proceedings, and it is exceptionally rare to see the court be critical of those making the allegations. In our experience, this case was extraordinary in that the family court did act to address an injustice, libel and slander.

For some reason, the courts have a tendency to see false allegations in family proceedings as acceptable. I could give a great number of examples, but if I did, I would go to jail (due to the court's secrecy rules).

Hemming has also been a thorn in the side of Social Services, as he criticises them for being too quick to take children into care. We have seen judgments from cases where the judge found that social workers falsified evidence. Was any action taken about their having broken the law? No. Were their details and the circumstances of their seeking to pervert the course of justice kept secret? Yes. Could the father name them? No. Can I provide any more details? Yes. However, if I do, I could go to jail (due to court secrecy rules).

There are injustices. The test for considering evidence in the family courts is set low. A 'balance of probabilities' rather than 'beyond all reasonable doubt'.

While I have no issue with children not being named in judgments, and cases being anonymised, the excessive secrecy rules don't just protect the families, but at times dodgy social workers, suspect experts, and judges. Publishing judgments will never create the openness that Mr Hemming wants, since it is the detail of evidence that is needed for an informed decision as to whether the judge was right or wrong.

Did Hemming make an error in judgment in this case? Yes, if you follow Wall's reasoning that you can trust the courts to be unblemished in their reasoning. No, if you consider that due to court secrecy, Mr Hemming could only make a decision on the facts available to him, which were limited due to court secrecy.

Should John Hemming resign? Yes, but only if all judges who have had their judgments successfully appealed also resign.

Should Sir Nicholas Wall be calling for his resignation? Probably not if you consider the Guide to Judicial Conduct:

8.1.1 Judges should exercise their freedom to talk to the media, with ‘the greatest circumspection’. Lord Bingham has commented that ‘a habit of reticence makes for good judges’. A judge should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press. In his speech in the House of Lords on 21 May 2003, Lord Woolf CJ referred to “the very important convention that judges do not discuss individual cases”.

John Hemming's criticism was seemingly that it was wrong to jail people, without the details of the case being made public. It appears that Sir Nicholas, by making the details of the case public, has in some ways, proved his point.

We need checks and balances, and we need people like John Hemming. He may on occasions get things wrong, but at times, so does Sir Nicholas. Resignations aren't the answer, but rather, a sincere intention to address the public's declining faith in family law.

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

2011-08-27T03:38:00.000-07:00

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.

Riots and a lack of discipline... are the courts the solution, or part of the problem?

2011-08-11T17:24:00.000-07:00

I notice that David Cameron has commented recently on a lack of discipline and problems caused by the fatherless society and a wish to tackle 'Broken Britain'.

Depending on the research you go by, between 25% and 60% of non-resident parents lose contact with their children within two years of separation (the figure of 60% came from Dame Elizabeth Butler-Sloss when President of the Family Courts). In the past two years, I have answered more than 2,500 questions from non-resident parents on the forums for the UK's leading shared parenting charity, Families Need Fathers and see a common trend, an example of which is given below.

I had a case not too long ago where the child refused to see their father because the father wished to take the child to see their grandparents on a Sunday and the child wanted to play on their X-Box. Cafcass became involved, and the Cafcass Officer said that at 11, the child could make up its own mind. I suggested the father ask the Cafcass Officer if it would similarly be acceptable for an 11 year old child to 'decide' they didn't want to go to school. This apparently caused a degree of cognitive dissonance in the 'welfare professionals' involved.

Scenarios like this are not uncommon, and I see them far too often. The courts regularly fail to enforce orders if a resident parent refuses to comply. Minor disputes between a child and non-resident parent (often over matters related to normal discipline) become blown out of proportion.

The term 'parental alienation syndrome' is often incorrectly used. The problem isn't a syndrome, but one of too many resident parents failing to exercise parental control (often selfishly), their refusal to comply with court orders, and then the courts failing to enforce orders. A culture has grown up where a child's wishes and feelings are considered to the exclusions of their needs (part of which are accepting boundaries), and similarly, the resident parent knowing that the courts are unlikely to enforce orders. There is little to encourage a resident parent to comply (if they decide their life is made more simple with their ex-partner not having a role in the children's lives).

If Mr Cameron wants absent fathers more involved, and there are a large number who want to be but are excluded against their will, the Government needs to reinforce in statute that both parents have a meaningful role in their children's upbringing. The culture in Cafcass and the Family Courts needs to change. In 2006, Mr Justice Munby said that the courts were 'impotent' when it came to enforcing contact orders. While the Government brought in the Children and Adoption Act and new measures to enforce contact, these are often not applied (in my experience... having read the pleas for help from many non-resident parents - and my site now being visited some 140,000 times so far this year).

Worth reading is the research from Professor Kruk concerning the impact of fatherlessness - http://www.fira.ca/cms/documents/181/April7_Kruk.pdf (academic research supporting my view).The research comes from the University of British Columbia, and is the widest ranging study in this area. The full report is 101 pages, with over 100 pages of references. The 9 page executive summary is also available. The report highlights that: Sole maternal custody often leads to parental alienation and father absence, and father absence is associated with negative child outcomes, higher levels of delinquency, teen pregnancy, drug addiction etc... all the social ills that Mr Cameron hopes to defeat (yet perversely, comes as a result of normal outcomes from the family courts).

Rarely I meet a 'feckless father'. Most 'absent fathers' are disenfranchised, and failed by the courts, and not absent through choice. The main casualties are their children, and later, society, as we've seen this week.

There's a shared parenting bill coming before Parliament. Will Mr Cameron support it... and help redress the culture of fatherlessness that plays its part in our fractured society? Details of the bill can be found at http://services.parliament.uk/bills/2010-11/sharedparentingorders.html... mention it to your MP!

Family Law Week - Relocation Article

2011-08-11T10:17:00.000-07:00

Michael Robinson of The Custody Minefield and Relocation Campaign responds to the recent articles by Richard Gregorian and Gavin Emerson concerning leave to remove applications, Payne v Payne and post-Payne development.

Read the full article on Family Law Week

Case Law for Kindle - Internal Relocation

2011-08-02T05:08:00.000-07:00

NEW - Kindle Formatted Content - FREE - for McKenzie Friends and Litigants-in-Person
Now you can read judgments and other reference material on your kindle, ipad, iphone or tablet reader, using free kindle software and with content reformatted by The Custody Minefield.

You'll need to download Amazon's free Kindle software from here to be able to open and read our Kindle format reference guides.

Click on the image to download kindle format book, then copy it over to your preferred reading hardware and carry it with you to court, read it on the bus, in bed, or even on the loo!

Including the FULL TEXT of Leading Judgments related to Internal Relocation - 68,000 words reformatted - FREE
Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 CA,
Re S (A Child) [2001] EWCA Civ 847,
Re H (Children) (Residence Order: Condition) [2001] EWCA Civ 1338
Re F (Children) [2003] EWCA Civ 592
G (A Child) [2006] EWCA Civ 1507
G (Children) FC [2006] UKHL 43
Re B (A Child) [2007] EWCA Civ 1055
M v H [2008] EWCA 324 (Fam)
W (Children) [2009] EWCA Civ 160
Re T (A Child) [2009] EWCA Civ 20
F (Children) [2010] EWCA Civ 1428

Why Kindle... and new content added and coming!

2011-07-24T16:00:00.001-07:00

Tonight we've added a further piece of case law to our Leave to Remove Case Law for Kindle.

F (Children) [2003] EWCA Civ 592 confirmed that shared residence orders may be made, even when the parents' homes are separated by some considerable distance.

A question I've been asked is "why Kindle?"

We have also published a smartphone guide recently on Dyslexia and the Family Courts, and we want to make our own content more accessible in the coming months.

Kindle has a number of advantages. Firstly, if you have bought one of those slim, lightweight e-book readers, you will know that there is the option of 'text to speech' (when you can enjoy a slightly robotic voice reading to you). The screens are matt, solving the 'glare' problem that comes from pc screens and standard printed paper, which can pose a problem for people with dyslexia. The font is standardised and simple. We are cutting underlining and italics to a minimum, mindful that again, such things can make text harder to digest for someone with dyslexia.

Due to the simple formatting on kindle books, file sizes are kept to a minimum. This makes the format ideal for downloading and then storing large quantities of information. For McKenzie Friends and Litigants-in-Person heading into court, we want to provide information at your fingertips. Barristers are starting to take IPads into court. Not all of us can afford an IPad, but kindle books can also be read on smart phones, other tablet readers, pcs, macs, and of course, kindle readers, making the format accessible on a wide range of hardware.

Kindle content requires kindle software to be downloaded, but the ebook viewing software is free. With Amazon backing it, kindle books are already outselling paperbacks.

Visit The Custody Minefield to download the first of our kindle reference titles. You'll also find 38 free, simple html guides that can be viewed quickly on a smart phone.

Our goal for providing information for the coming year will be increasing accessibility (both in terms of format, and mindful of problems faced by parents and grandparents with specific learning difficulties or who are visually impaired). More content, and new guides will of course be coming, as well as the new formats for the existing guides and reference material.

Practice Guidance: McKenzie Friends - formatted for Kindle

2011-07-23T17:30:00.000-07:00

Following a discussion with a friend who is also a McKenzie Friend, we have published the court's Practice Guidance on McKenzie Friends in kindle format.

My friend had gone to court to support a litigant-in-person where the other party was represented by both a solicitor and barrister. The barrister objected to the presence of a McKenzie Friend (so much for the belief in an equality of arms!). The judge thankfully refused the barrister's request, but the McKenzie Friend mentioned that in future, he would always intend to have a copy of the Practice Guidance with him.

My friend noticed that the barrister had a IPad. He asked me if I'd format the Practice Guidance so he could have it permanently stored on his kindle.

To download the Practice Guidance, simply click on the picture. You can then copy it to your kindle, or to a smart phone or tablet device.

You'll need to download Amazon's free kindle software here to be able to open and read our Kindle format reference guides. More resources will be added to further assist McKenzie Friends and Litigants-in-Person.

Another first... Case Law for Kindle...FREE

2011-07-19T17:42:00.000-07:00

Now you can read judgments on your kindle, ipad, iphone or tablet reader, using free kindle software.

We've especially formatted the leading case law on international child relocation (leave to remove) for viewing on Kindle readers and on other hardware using Amazon's free kindle reading software.

You'll need to download Amazon's free kindle software here to be able to open and read our Kindle format reference guides.

Click on the image above to download the case law, then copy it over to your preferred reading hardware and carry it with you to court, read it on the bus, in bed, or even on the loo!

Includes the new Re K (Children) judgment, Payne v Payne, Re Y and AR (Children).

A very British Coup - Payne Reviewed?

2011-07-09T17:03:00.000-07:00

The following is of course a fictitious interpretation of what has recently happened in the Royal Courts of Justice, concerning the quite astonishing, and long overdue review (civil court rescue of its family court cousin?) concerning the binding precedent of Payne v Payne. We are of course not reviewing or interpreting or amending what was said in court. Our sincere respects to Lord Justice Moore-Bicke (would he mind staying a while!) and Lady Justice Black, and of course, to Lord Justice Matthew Thorpe, our Head of International Family Law.

MB
"Now look into my eyes...

Let me introduce myself. I'm a new boy to family law, so bear with me if I appear a little callow. Well yes, I may be Deputy Head of Civil Justice, but I'm only here by chance, just filling in for the day!

Let us remind ourselves that our President of the Family Courts said a review of Payne wasn't possible in the Court of Appeal, so of course, this isn’t what we’ll be doing in court today. Sir Nicholas was of course quite right that only the Supreme Court or Parliament could review binding precedent *mumble*... yes I'm aware that if Payne had been applied 'per incuriam' - without care - then of course the Court of Appeal could make corrections, but that's not why I've been parachuted in *cough*, I mean why I am here by chance today [and if it is held that I have reviewed Payne, I've covered myself quite nicely at paragraph 79... note well Lord Falconer, this is why judges should have an advocacy background and not come from the lesser ranks!].

So let me be quite clear, this judgment I am handing down today, in this case K (Children) does not include a review of Payne, oh no, not in the slightest. I've simply passed some comments on Payne, I'm not reviewing it at all, and I am not contradicting our President of the Family Courts.

Payne of course remains as precedent, but only in so far as it raised a single point of law (look into my eyes)..."that child welfare must be the court's paramount consideration" [which of course needed to be emphasised in 2001 as a point of law, given that some of my colleagues appear not to have understood what paramountcy means - looking at no-one in particular].

I am aware that some will say that I am rewriting the guidance in Payne (the Solicitors Journal), but they're quite mistaken... not at all what I'm doing, I'd just like you to consider that the entire family justice profession and judiciary, with the notable exceptions of Hedley J and Elias LJ, have misunderstood and misapplied Payne v Payne for the last 11 years [so glad I come from the civil courts!]

We'll avoid mentioning the thousands of British families affected. The children who
have subsequently lost contact with the parents left behind due the court's additional
naivety at blindly believing so many 'primary carers' that they will of course support
contact once beyond the UK court's grasp. No point mentioning the emotional, psychological and developmental harm which relocation risks inflicting on our children. We can't turn the clock back, and they're no longer within our jurisdiction, so they're not British children now, strictly speaking, or our responsibility.

Clearly, there is little point in apportioning blame, when the only way to sack those responsible would be to have both Houses of Parliament vote to remove them from office, and that has only happened once in 250 years. Parliament's attention is understandably focused elsewhere. [Could the timing of this judgment have been any better... thank heavens for the News of the World!]

Let us also avoid Matthew's quoting of statistics, and the fact that the Equalities Commission found in 2008 that fathers and mothers share care almost equally in today's society, and it is only once the courts become involved that this falls from almost 50% to the 3% that Matthew just quoted to you.

Let us also avoid mentioning the likelihood of harm caused to children by the court's position for the last 40 years, and that Briefing Report and evidence submitted at Westminster last November by The Custody Minefield and Families Need Fathers which highlighted that these risks of harm have been known since 2002, yet it has taken concerted campaigning to get the family courts to remember that their raison d'etre is safeguarding child welfare and not dogmatic wrangling over protocol.

*Cough* Moving swiftly on, I believe it is a more sensible resolution to say
that, what you believed Payne v Payne to have meant, and how it bound you all
wasn't in the slightest what the Lord Justices intended... was it Matthew... just nod old chap!

...and of course the guidance must be 'followed', as the President of the Family Courts said recently), what he actually meant was 'considered', since aside from the sole point of law concerning the paramountcy principle, it just provides some jolly useful tips, which of course should be considered, but that guidance is merely guidance, it isn't actually binding you see, and never was!

There has however been a jolly unfortunate misunderstanding, and had it not been for Matthew's slight slip in 2007 which caused this fuss, of using super-glue to apply guidance as precedent, we could all be doing something else this afternoon.

...and of course Re Y should be heeded by the judiciary where care is shared as Matthew so rightly just reminded you [after our little chat].

With reference to his comment that Re Y will only affect a handful of cases, I refer you to Lady Justice Black.

Lady Justice Black peers over the top of her glasses and says [and I quote] ... 'I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case"'

(Is that clear Matthew)

So you've all been dreaming... you're in a better place... I'm going to count back now, 3.... 2..... 1....."

[Editor – ‘Does anyone remember that moment when Bobby Ewing stepped out of the shower and he hadn’t been murdered at all, 18 months before?']

A dream? Peut-etre c'etait un cauchemar pour les enfants’.

If you have a Kindle Reader, or have Kindle software on your IPAD, IPhone Android or Tablet, you can download this article, especially formatted for Kindle.

Click the article title below:

Payne Reviewed? A Very British Coup

More Kindle content will be coming soon from The Custody Minefield. Follow the blog, to find out when this content is being released.

To download Kindle software for your phone, PC or tablet, visit the following:

Kindle Software Applications

Response to the Judgment in MK v CK [2011] EWCA Civ 793

2011-07-07T13:02:00.000-07:00

In response to the judgment MK v CK [2011] EWCA Civ 793 we wish to make the following announcement:

The Relocation Campaign welcomes the Court of Appeal's acceptance that the guidance within Payne v Payne harks back to a stereotypically 1970s view of family life, and is not relevant to modern parenting or society (at paragraphs 68 to 70 of the judgment). We particularly note and welcome paragraphs 78 and 79 of the judgment. Since starting this campaign, we have held that the court's rigid application of the guidance within Payne v Payne has gone counter to the paramountcy principle within the Children Act.

The test applied by judges when considering matters which impact on child welfare was warped. The assumptions and weighting given to the distress argument were and are unscientific and unsubstantiated, yet until this recent judgment, have remained fiercely defended by Lord Justice Thorpe. We would further like the courts to properly consider the child's Convention Rights to contact and family life, and its repeated failures to put in place adequate safeguards to protect a child's relationships.

We note that the child in Payne v Payne went on to lose all contact with their father. The guiding case was a failure. It's continued application as binding precedent has been a scandal.

Michael Robinson

Relocation: FNF Press Release

2011-06-29T15:18:00.001-07:00

PRESS RELEASE

Families Need Fathers

Rise in Child Abductions to Non-Hague Convention Countries Indicative of Wider Failures of the Family Justice System Concerning Relocation

HAGUE CONVENTION DOES NOT GUARANTEE RETURN: REFORM REQUIRED TO PREVENT MORE CHILDREN LOSING CONTACT WITH THEIR PARENTS

Families Need Fathers was saddened to see that the number of abductions to countries who have not ratified the 1980 Hague Convention on International Child Abduction has risen from 146 to 161 between 2009/10 and 2010/11. However, it would be wrong to think that the Hague Convention ensures that children can be returned quickly to their home country.

The approach of the family justice system to abduction and relocation cases is in need of an urgent overhaul if it is to protect the rights of children to maintain meaningful relationships with both parents. Ken Sanderson, CEO of Families Need Fathers, commented, “Child abduction destroys lives. Children are denied the love and support of a parent, and the parent left behind is placed in the intolerable position of not knowing where their children are, whether they are safe or when, if ever, they will see them again. Such abductions cause irreparable harm to individuals, families and their communities.

Of course, the international community needs to work hard to encourage more countries to sign the Hague Convention and address international child abduction with the urgency it deserves. We would be doing these families a disservice though if we were to consider the current implementation of the Convention amongst states that have ratified the treaty as a panacea to these problems. Relocation cases currently take far too long to be processed, during which time irreparable damage can be done to the parent-child relationship. Additionally, the costs of recovering abducted children are prohibitively expensive for most ordinary people to pursue, particularly where cases are dragged out over months, or even years. Access to justice must be open to all, and not simply those who can afford it.”

Ken Sanderson continued, “Our own legal system’s approach is in drastic need of an overhaul to prevent the continuing damage of child relocation. This issue goes beyond the Hague Convention. Payne V Payne, the case law which determines the courts’ decisions on relocation cases, gives undue weight to the desire of the parent wishing to move over that of the right of the child to maintain a meaningful relationship with both parents, in breach of the United Nations Convention on the Right of the Child. Indeed, even Lord Justice Wall has stated there is a “perfectly respectable argument” for this proposition. Our approach to relocation is outdated, ill-conceived, and will continue to do significant harm to family life until it is reformed.”

Michael Robinson of The Custody Minefield said “International parental child abduction is a growing problem. Our experience is that international treaties meant to ensure a child’s return are fine in theory, but in practice, often fail to see a child returned.

The government is well aware of the harmful impact on children of forced removal abroad, yet fails to address this in the current Family Justice Review. Despite assurances to me from Sir Tom McNally, Minister of State for Justice, that the review would look at this area of law, David Norgrove, the panel’s chair has affirmed in writing that this is not within their remit. The government must stop ignoring significant and identified risks to child welfare from international relocation.

Whether unlawful child abduction or court approved relocation, the effects on the child are the same. A dramatic change in living arrangements, the loss of contact with one parent and their wider family, change in school and loss of friends are likely to impact on a child’s psychological, emotional and educational development. We presented scientific evidence for this at Westminster last November. The government still does nothing but prevaricate.”

Family Justice Review News

2011-06-25T03:24:00.000-07:00

Families Need Fathers and The Custody Minefield issue a joint response to the Family Justice Review Interim Report including detailed proposals for family law reform.

You can download it here (opens as a PDF)

Leave to Remove News

2011-06-25T00:49:00.000-07:00

The father in the case Re D responds to Sir Nicholas Wall's recent u-turn.

19 June 2011

Continued psychological, developmental and educational harm and disadvantage to hundreds of British children in ‘Leave to Remove’ Relocation cases, as a direct consequence of the continued application of and reliance upon the outdated and discredited principles, suppositions and ideology of Payne v Payne (2001)

Dear Lords, Ladies and Gentlemen

I address this letter to all of the following recipients. For the benefit of new recipients, I have attached my open letters dated 20 December 2009, 14 February 2010, 14 March 2010, 18 November 2010 and 5 April 2011.

After reserving judgment in Re D (Children) [2010] EWCA Civ 50 and giving himself three weeks in which to “reflect carefully” on the arguments presented by the litigant-in-person father, and to read the fifteen contemporary scientific papers exhibited - giving detailed evidence of the psychological, developmental and educational harm and disadvantage children are likely to experience in the absence of a close, frequent and meaningful relationship with both parents - Sir Nicholas Wall wrote in his publicised judgment that…

“…there is a perfectly respectable argument for the proposition that [Payne v Payne] places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent… As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a ‘compelling reason’ for an appeal to be heard.”

However, one year later, in Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall performed an inexplicable U-Turn on the issue of Payne v Payne, declaring:

“I fear that too much weight may have been given to some words of mine spoken in a judgment which I gave in an application to this court for permission to appeal in a relocation case. Whilst I do not resile from most of what I have said, I am of the clear view that undue prominence has been accorded to Re D…”

WHO, though, had been guilty of according “too much weight” and “undue prominence” to Re D????? Let’s find out…

a) SIR NICHOLAS WALL himself on at least 2 occasions!

Firstly, in an interview Sir Nicholas gave to ‘Family Affairs’ on 12 August 2010:

“In light of a) your comments in Re D, b) the Washington Declaration c) the new research from Dr Marilyn Freeman and Professor Parkinson and now d) the comments of Mostyn J in Re AR, where are we now on international child relocation? Is it still a question of finding a rich or tenacious (or both) litigant to push the right case to the Supreme Court before any effective review of Payne v Payne can take place?

"As I said recently in Re D (Children) [2010] EWCA Civ 50, (which I am delighted to see that you have all read) there is a perfectly respectable argument for the proposition that Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent. However, all relocation cases are (1) very difficult; and (2) highly fact specific. Re D was plainly not the case upon which to base a re-appraisal of Payne. Furthermore, as I also made clear in Re D, we operate a doctrine of precedent and it will be either for the government to change the law or for the Supreme Court to reconsider the issue in a suitable case. I do not think that a litigant would necessarily have to be either rich or tenacious to get to the Supreme Court, but a finely balanced case is likely to turn on the trial judge's exercise of discretion, with which it may be difficult to interfere."

http://www.familylaw.co.uk/articles/Sir-Nicholas-Interview-120810

Secondly, in a speech Sir Nicholas gave to the AGM of the ‘Families Need Fathers’ on 20 September 2010:

“I recently had to decide an application for permission to appeal in a “relocation” case [Re D (Children) [2010] EWCA Civ 50]. The case did not involve Australia or New Zealand, but what used to be called Eastern Europe, and in my view the application had to be refused. The father who argued it, however, launched a “root and branch attack” on Payne v Payne, and I reserved judgment so that I could consider his arguments carefully.

“I went on to deal with whether or not there was a “compelling reason” for the Court of Appeal to hear the case. …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… relegates the harm done to children by a permanent breach of the relationship which the children have with the left-behind parent…as I say, this is a perfectly reasonable argument and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard…”

http://www.familylaw.co.uk/articles/Wall200910

b) ANDREW SHAW of the Ministry of Justice.

Following an open letter I had sent to the Justice Minister and to the Prime Minister concerning the issue of Relocation, Mr Shaw replied on behalf of the Government on 8 March 2010 as follows:

“I confirm that the Ministry of Justice are carrying out a Review of the Family Justice System. The Review will aim to ensure that the Family Justice System supports good quality contact with both parents, as it is this which contributes to better outcomes.

Where precedent is cited, it is for the Courts to decide whether that is relevant. In your letter you mentioned Payne v Payne which is the leading judgment in Relocation cases. For Payne v Payne to be challenged and potentially overturned this would have to go to the Supreme Court in a case where there was genuine reason for an appeal to challenge the precedent set in Payne v Payne on the basis that the principles were mis-stated. With that in mind, you may be interested to learn that Nicholas Wall LJ in his judgment in Re D (Children) [2010] EWCA Civ 50 on 9 February 2010 acknowledged that there is a respectable argument that the Court of Appeal judgment in Payne places too great an emphasis on the wishes and feelings of the relocating parent (paragraph 33):

‘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… relegates the harm done to children by a permanent breach of the relationship which children have with the left-behind parent.’

LJ Wall went on to say (paragraph 34):

‘This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.’

Lastly, you mention in your letter about various scientific research papers… Whether any research influences future court decisions is a matter for the judiciary. The Lord Chief Justice has responsibility for judicial training. His responsibility is exercised through the Judicial Studies Board, which is an independent body chaired by Lord Justice Maurice Kay.

c) SIR NICHOLAS MOSTYN / High Court Judge of the Family Division.

“Mostyn J considered the authorities including Poel v Poel [1970] 1 WLR 1469, Payne v Payne [2001] 1 FLR 1052… and Re D (Children) [2010] EWCA Civ 50”.

Paragraph 9 from Mostyn’s judgment in Re AR (A Child: Relocation) [2010] EWHC 1346 reads as follows: “More recently, in Re D (Children) [2010] EWCA Civ 50 Wall LJ (as he then was) acknowledged the strength of the criticisms mentioned above. He stated at paragraph 33 that: 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.”

http://www.familylawweek.co.uk/site.aspx?i=ed60336

d) PROFESSOR MARILYN FREEMAN / Professor of Family Law at London Metropolitan University, co-director of ‘The Centre of Family Law and Practice’ and Head of the Reunite Research Unit. In a speech to the University of Western Cape Conference on 18 March 2010, the learned Professor stated:

“Lord Justice Wall, in a hearing for permission to appeal a leave to remove (relocation) order, added his qualified support for a review of Payne v Payne on 9^th February 2010 when, although deciding that the case he was hearing was not the right case for a challenge to Payne before the Supreme Court and thus refused the father’s permission to appeal, he stated:

"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”. He went on to say: "This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a 'compelling reason' for an appeal to be heard” (Re D (Children) [2010] EWCA Civ 50). There are therefore signs that the Court of Appeal may be willing to revisit this position.”

http://www.millerdutoitcloeteinc.co.za/Paper%20-%20Freeman%20Marilyn.doc

e) HENRY SETRIGHT QC / Recorder and Deputy High Court Judge (Family Division)

In a presentation at the London Metropolitan University the eminent QC reiterated Wall’s critique of Payne v Payne in Re D (Children) [2010] EWCA Civ 50

(see slide 19 of 26)

http://www.londonmet.ac.uk/fms/MRSite/acad/lgri/CFLP/Relocation/Relocation%2023%20Powerpoint%20May%202011.ppt#272,13,Share

f) ANNE THOMAS / Senior Partner at International Family Law Group, member of Reunite, past Chair of the Family Law Steering Group and member of the International Bar Association.

“In early 2010, in Re D (Children) [2010] EWCA Civ 50, Wall LJ, now President of the Family Division, stated that “there has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly reasonable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent and… relegates the harm done to children by a permanent breach of the relationship which the children have with the left-behind parent.” He went on: “this would, I have no doubt, in the right case constitute a compelling reason for an appeal to be heard.”’

http://www.iflg.uk.com/en/news/parliament-considers-reform-of-child-relocation-law

g) SANDRA DAVIS / Partner and Head of Family Law at Mishcon de Reya LLP, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor’s Child Abduction Panel.

“In Re D (Children) [2010] EWCA Civ 50 Sir Nicholas Wall said there was a perfectly respectable argument that Payne places too great an emphasis on the wishes and feelings of the relocating parent. "In doing so", he said "it ignores or relegates the harm done to children [by the dislocation of their relationship with the parent left behind]". This, according to Sir Nicholas, would, in the right case, constitute a compelling reason for the Supreme Court to review the law on relocation. A couple of weeks ago the President of the Family Division gave the lead judgment in another relocation case, Re W (Children) [2011] EWCA Civ 345, in which he appeared to row back from his earlier decision in Re D. In the postscript to his judgment, Sir Nicholas retracted his use of the word "ignores" in Re D, adding "unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 relocation cases will remain... governed by Payne v Payne."

http://www.familylaw.co.uk/articles/SandraDavis14032011

h) DAVID HODSON / Deputy District Judge at the Principal Registry of the Family Division, High Court, London, a Fellow of the International Academy of Matrimonial Lawyers, author of A Practical Guide to International Family Law and chair of the Family Law Review Group of the Centre for Social Justice.

“England has probably the world's most liberal and generous relocation law and which has attracted much criticism from English lobbying groups, family lawyers and some judges. Lord Justice Thorpe writing in June Family Law (at p 565) about the conference says that if England were to subscribe to the [Washington] Declaration it would represent a significant departure from English relocation law principles. Yet he also accepts that it is not difficult to argue for a change in the law given the changes in parenting patterns over the past 40 years or so. Perhaps with a new President [Sir Nicholas Wall] who has been previously critical of English relocation law [Re D (Children)], we can have a new direction very soon, giving greater weight to continuity and ongoing relationship with the so-called "left behind parent". A change is very overdue.”

http://www.familylaw.co.uk/articles/david-hodson-on-international-family-law-0

i) HONG KONG FAMILY LAW ASSOCIATION

“Mr Justice Mostyn has said a review of Payne v Payne by the Supreme Court is urgently needed. It follows Lord Justice Wall, now President of the Family Division, adding his support last February in Re D (Children) [2010] EWCA Civ 50 for a review of Payne.”

http://www.hkfla.org.hk/

j) JORDAN’S PUBLISHING

“In his judgment [Re D (Children) [2010] EWCA Civ 50], Lord Justice Wall commented: "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."
He went on to say: "This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a 'compelling reason' for an appeal to be heard."

http://www.familylaw.co.uk/articles/perfectly-reasonable-argument-for-a-review-of-payne-says-lord-justice-wall

k) CATHERINE TAYLOR / Associate Solicitor / Healys LLP

“In February, Lord Justice Wall had called for a review of Payne v Payne [2001]. Lord Justice Wall had been hearing an application for permission to appeal a leave to remove order. He refused the father's permission to appeal, but said in his judgement, "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 [Re D (Children) [2010] EWCA Civ 50)].”

http://www.healys.com/site/srvprivate/family_law_solicitors/family_law_further_information/family_law_review_of_payne_and_poel.html

l) JMW SOLICITORS LLP

“In the first six months of 2010, various high ranking family law judges made calls for a review of [Payne v Payne]. LJ Wall 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… relegates the harm done of children by a permanent breach of the relationship which children have with the left-behind parent [Re D (Children) [2010] EWCA Civ 50)].”

http://www.jmw.co.uk/services-for-you/family-law/articles/poel-and-payne/

m) WITHERS WORLDWIDE LLP

“…A recent Court of Appeal case Re D (2010) acknowledges that there has been considerable criticism of the leading case law which is widely seen as weighted in favour of relocating mothers. In his recent Judgment in Re D (Children), reported in February 2010, Wall LJ expressed his view that the Payne principles are ripe for review: "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 to children by a permanent breach of the relationship which children have with the ‘left behind' parent." However, Lord Justice Wall did not feel that this particular case was the ‘right one' to pursue this argument, and refused the father permission to appeal the decision that the mother be allowed to remove the children to Slovakia.

County Court and High Court Judges are duty bound to follow the Court of Appeal in Payne and as Lord Justice Wall acknowledged in Re D, the principles and guidelines laid down in that case can only be altered by legislation or overruled by a decision of the Supreme Court.”

http://www.withersworldwide.com/news-publications/729/moving-abroad-should-parents-be-on-an-equal-footing.aspx

n) KIM BEATSON / Partner & Head of Family Law at Anthony Gold LLP

“…there is now considerable momentum for a change of law in this area. In Re D (Children) [2010] EWCA Civ 50 Wall LJ (as he was) acknowledged the criticisms of Payne and stated at para 33: “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… relegates the harm done of children by permanent breach of the relationship which children have with the left behind parent.”

http://www.anthonygold.co.uk/site/ang_articles/leave.html

o) AMANDEEP GILL / Jordan Publishing

“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.

http://www.familylaw.co.uk/articles/amandeep-gill-s-analysis-0

p) VO LAW LLP

“Despite certain dissenting commentary amongst lower Court judges, these questions have remained largely untouched until very recently. In Re D [2010] EWCA Civ 50, Lord Justice Wall stated that there is a perfectly reasonable argument for the proposition that Payne places too much emphasis on the wishes and feelings of the parent seeking to remove the child. In his judgment, Wall LJ commented, “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… relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent ... there is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard”

http://www.volaw.com/default.asp?contentID=1101

q) BRENDAN ROCHE / Barrister, 7 Bedford Row

“In February 2010, in the case of Re D (Children) [2010] EWCA Civ 50, LJ Wall [noted] that there is a perfectly respectable argument that Payne v Payne “places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done to the children by a permanent breach of the relationship which the children have with the left-behind parent”. He had no doubt that, in the “right” case, this argument would constitute a compelling reason for an appeal to be heard.”

http://www.familylaw.co.uk/articles/flj0910BRENDANROCHE

r) DUNCAN LEWIS LLP

In Re D (Children) Lord Justice Wall has stated that there is a perfectly reasonable argument for the proposition that the Court of Appeal judgment in Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent. In his judgment in Re D (Children), Lord Justice Wall commented: ‘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.’

Conclusion: The courts have engaged in a war between prioritisation between the Children Act 1989 and the Principles of Payne. The court has continuously observed the Childs welfare as paramount but there has been a vibrant and incoherent approach to these applications…”

http://www.duncanlewis.co.uk/childcare_news/Relocation_of_Children__(18_April_2011).html

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In summary, those who Sir Nicholas Wall accuses of placing “too much weight” and “undue prominence” on his critique of Payne v Payne, as expressed in Re D (Children) [2010] EWCA Civ 50 are:

a) Himself

b) The Ministry of Justice

c) A Professor of Family Law

d) The Judiciary of the High Court Family Division, and

e) Several eminently qualified and highly experienced Family Law practitioners

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It surely behoves Sir Nicholas Wall to proffer a comprehensive explanation for his apparent U-turn on the issue of Payne v Payne.

For example, does Sir Nicholas now consider that the child-welfare arguments presented to him by the litigant-in-person father in Re D have lost their original potency?

The arguments against Payne, as presented in Re D, can be found at:

http://www.equalparentingalliance.org/2011/04/leave-to-remove-an-open-letter-from-father-of-re-d.html

Alternatively, does Sir Nicholas now no longer consider the scientific evidence, as presented to him in Re D, to be as powerful and persuasive as it was in 2010?

The scientific evidence, presented in Re D, can be found within the Custody Minefield Report, entitled ‘Family Law: Relocation: The Case for Reform’ at:

http://www.relocationcampaign.co.uk/index.html

Of course, Sir Nicholas has absolutely no obligation to provide comprehensive answers! He remains completely unaccountable for his actions and views, both to Parliament and to the General Public. He is untouchable.

Furthermore, Sir Nicholas expressed his critique of Payne v Payne in a second completely un-publicised judgment.

In April 2010, 2 months after Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall gave judgment in Re D (A Child) [2010] EWCA Civ 593.

In this second judgment, Wall stated that:

“…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.

Quite remarkably, Wall acknowledges the fact that, when acting for mothers wishing to remove their children overseas, their lawyers and barristers “invariably” seek to claim in court that their clients will be devastated if they are not allowed to go!

It is perhaps little wonder why Sir Nicholas decided NOT to make this second Relocation judgment public! Indeed, it was only brought to my personal attention by Lord McNally’s researchers.

Sir Nicholas Wall continues to decline to make any comment on this second judgment, and upon the implications it obviously has for his stance on Payne v Payne.

If the President of the British Medical Association had stated that there was a “perfectly reasonable”, “compelling” and “powerful” argument that Food Additive X relegated the harm done to children, but then proceeded to do absolutely nothing about it for nearly two years, I have no doubt that such a criminal dereliction of duty would have resulted in lengthy imprisonment!

The President of the Family Division stated that there was a “compelling” and “powerful” argument that Payne v Payne relegated the harm done to children, and yet has done absolutely nothing about it for nearly 2 years! Did Sir Nicholas have no professional or ethical duty to act without haste, and in accordance with the Precautionary Principle, particularly when the matter relates to the well-being of our children?

And how can it be that, after having been presented, last year, with all of the arguments and all of the powerful scientific evidence for the serious risk of child harm in Relocation cases, the Children’s Commissioner can still refuse to involve herself in this matter? Dr Atkinson has now even refused to deal with any further correspondence from me concerning Relocation cases!

In the recent case of Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall abdicated responsibility for judge-made law and ‘passed the buck’ to Parliament. He distanced himself from his previous critique of Relocation law, attempted to suggest that people had mistakenly given his critique ‘undue prominence’, and reaffirmed Payne v Payne, stating that:

“…unless and until Parliament imposes a different test, relocation cases will remain… governed by Payne v Payne.”

…what is the position of Parliament???

A Summary of the Position of the Government:

Following my open letters, addressed to the Justice Minister, Mr Ken Clarke, and to the Prime Minister, Mr David Cameron, Lord McNally stepped forward to claim “ministerial responsibility” for Relocation law.

The position of the Government concerning Relocation law was clearly set out by Lord McNally in his letter to me (via my MP, Alistair Burt) dated 22 December 2010 (see attached):

“The Children Act 1989 already provides statutory protection to safeguard the welfare of children in cases of Relocation…the Act clearly requires the court to make the welfare of the child its paramount consideration…”

In other words, Lord McNally places responsibility for Relocation law firmly in the lap of the judiciary.

However, crucially, when assessing the ‘paramount’ welfare of the child, the judiciary is not in any way compelled by the Children Act to give full and proper weight to:

a) contemporary scientific research, and

b) the modern-day involvement of the so-called “non-primary carer” [the father] in the optimal development of the child.

The judiciary are thus at complete liberty to continue to assess the ‘paramount’ welfare of the child by adopting wholly un-scientific and plainly out-of-date suppositions and assumptions, originally pontificated upon by a judge in 1970.

In his letter, Lord McNally also affirmed that the Government is concerned and is interested in the issue of Relocation law, but that it wished to await recommendations for reform of Relocation law from the Family Justice Review before reaching any conclusions. To this end, Lord McNally confirmed that the FJR had been made aware of recent developments in Relocation law, and that it had been passed the latest Report from the Custody Minefield for its consideration. Lord McNally stated that it would be “premature” for the Government to reach any conclusions about legislative changes in Relocation law before it had seen the recommendations from the FJR. Quoting from his December letter:

“The Government has no current plans to change the substantive law on relocation. This is not due to any lack of concern or interest but because a Family Justice Review…has been launched… to make recommendations for reform.

The independent review panel has collected evidence from a wide range of sources and will have the opportunity to consider a wide range of issues, including Relocation cases. Policy officials working on the family justice review have been made aware of developments on Relocation including the latest Custody Minefield Report ‘Family Law: Relocation: The Case for Reform’. The review team is currently considering the evidence and will produce an interim report in Spring 2011, with a final report following in Autumn 2011.

I appreciate from his comments that Mr D’Itri is disappointed with this timetable. I hope, however, that you will agree that it would be premature for the Government to reach any conclusions about possible legislative measures before it has had the opportunity to consider the overall findings and recommendations from the review.”

Despite Lord McNally’s assurances, the FJR’s Interim Report, published at the end of March 2011, failed to address the issue of Relocation in any manner whatsoever.

In my open letter of 5 April 2011, I asked Lord McNally how the Government proposed to address the issue of Relocation law, in light of the disappointing Interim response from the FJR.

Lord McNally responded (again via my MP, Alistair Burt) by saying that Sir David Norgrove of the Family Justice Review – who had been copied in to my letter of 5 April 2011 – would be replying in detail to my concerns.

I received a reply from Sir David Norgrove on 1 June 2011 (see attached) as follows:

“With regards to the specifics of Relocation law, I am not able to comment in any depth on the issues you raise…

The specific issue of Relocation, and particularly the legislation surrounding the issue, was not within our remit and we did not take evidence on this question. I am grateful to you for passing on a copy of The Custody Minefield’s Report into the issue, but it would be remiss of me to make any judgments based on a limited understanding of the complexities involved.”

In short, Sir David has stated quite categorically that the FJR panel will NOT be addressing the issue of Relocation, and nor will it be making any recommendations. The ‘Relocation ball’ is now well and truly in the court of the Government!

On receipt of the letter from Sir David Norgrove, I immediately asked my MP, Alistair Burt, to request a full response from Lord McNally, as to the Government’s position on Relocation law. To date, no response has been received.

In the meantime, however, I was given a copy of a letter sent by Lord McNally to a concerned father, Mr K, on 23 May 2011 (see attached). In this letter, Lord McNally stated that:

“The Family Justice Review panel was not specifically asked to look at this issue [Relocation] in their terms of reference and therefore did not seek evidence on this”

I was naturally flabbergasted to read this new declaration by Lord McNally, because it flew in the face of his previous declaration, as detailed in his December letter to me.

How can Lord McNally have been so mistaken concerning the remit of the FJR? Surely he must have been in regular contact with Sir David Norgrove?

It is quite evident that the judiciary and the Government’s handling of the issue of Relocation is, at best, extremely shambolic, and, at worst, grossly negligent.

In either case, we must not accept it.

I therefore look forward to receiving an urgent and comprehensive response from Lord McNally to the issues raised in this letter, and full details of how the Government now proposes to address the issue of Relocation law, including a time-table for such action.

While we wait for the judiciary and the Government to act, hundreds of British children continue to be removed overseas each year, leaving behind their fathers, their extended families, their homes, their schools, their friends and their general way of life. These young and vulnerable children - who are already having to cope with the separation of their parents - are then expected to exhibit steely mental resilience in the face of the significant trauma of an overseas relocation.

Further unnecessary delay is completely unacceptable.

The Government has accepted the premise that children fare significantly better when they are permitted to remain in a meaningful relationship with BOTH of their parents. Yet it has consistently failed to address the most severe of all child/parent separations: that of overseas relocation.

While Mr Cameron sees fit to castigate ‘runaway fathers’ this Father’s Day - no doubt to the approval of the extremely powerful women’s lobby - his Government continues to ignore the issue of ‘runaway mothers’ in Relocation cases.

Cameron speaks of the vital influence played by his father in his own upbringing: lucky him! He would not have been so fortunate if his parents had separated when he was young and his mother had been given leave to emigrate!

Why does Mr Cameron stand idly by when hundreds of British children are routinely taken overseas, following the divorce of their parents, to be denied their Right to maintain a close, loving and meaningful relationship with their father?

What is good for children with married parents is surely also good for children with separated parents? I asked Mr Cameron this question a year ago. I still have not had an answer.

Yours most sincerely

Our 38th smartphone optimised guide - Dyslexia, the Courts and Reasonable Adjustments

2011-06-06T15:41:00.000-07:00

In the past two years I have come across a number of cases where the parents had dyslexia. In each case, due to their not raising that they had this condition early in proceedings, I believe their cases were adversely affected and they faced significant disadvantage. Damage was done.

Evidence thrust under their noses during cross-examination, hesitation taken for attempts to avoid questions, and in one case ridicule for not understanding subtle nuances of speech and double negatives. Poor memory under stress, getting dates wrong or in the wrong order all impacted on their credibility as a witness.

Most of them were successful professionals, who have well developed coping strategies for day-to-day life. Court is not day-to-day life though, especially when matters relate to your children and your ex-partner. Stress comes into play, and for these parents, the stress exacerbated their dyslexia. Assumptions are made that because these often intelligent people have degrees and hold down well paid jobs, their dyslexia isn't a problem. Thrust them into court without reasonable adjustments being made to assist them and the result is a decidedly unfair trial.

"You have a degree, you must be able to read and understand papers!" is a common assumption, although the question may not be asked whether all their paperwork is provided on tinted matt paper as gloss white paper causes text to blur and scramble.

Courts and the legal process are not dyslexia friendly, and despite there being guidance for the judiciary and legal profession, in our experience, many judges and solicitors are unaware of the guidance, and have little to no idea as to how dyslexia affects people.

So... our 38th guide, and this time on Dyslexia, the courts and reasonable adjustments.

Over the next few weeks, all of our guides will be updated and reformatted to be more accessible to parents and grandparents with dyslexia.

You have rights, and the courts have a duty!

Writing a Position Statement

2011-05-02T05:25:00.000-07:00

Another new guide... bringing our total to 37 free, smartphone optimised guides.

This time, on Writing a Position Statement.

More are coming...

New Content - New Guides @ The Custody Minefield

2011-05-01T15:58:00.000-07:00

Two new guides have been published, and a little over 6000 words of new content. Now 36 guides, all free, optimised for smartphone or PC use.

The first new guide is on applying to the court for a Seek and Find Order. For those situations where:

One parent has come home, to find the children and ex-partner have left the home, and they don't know where they have gone; OR
After separation, one parent moves, without informing the other of their address, and contact stops; AND
Similar situations where a parent wishes to apply to the courts, but doesn't know where their ex-partner and children are living.

The second guide is on 'Choosing, Instructing and Using a Solicitor'.

We've also updated all 36 smartphone guides, for easier reading, and improved navigation. You can access them all from our Family Law Menu.

US analysis of UK Relocation Law

2011-04-29T14:49:00.001-07:00

Great article by the respected US law firm, Family Law International, who specialise in assisting in the resolution of child abduction and Hague Convention cases. The article provides an analysis of relocation law in England and Wales. Worth a read, and the work of The Custody Minefield on legal reform is featured.

'The Current Law of Relocation in England and Wales' - Family Law International

Child Relocation Law: The case for reform revisited

2011-04-24T06:26:00.000-07:00

In the case Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall reaffirmed senior judiciary’s unwillingness to update their binding guidance on the lower courts. It is worth re-visiting the arguments for the reform, which still stand. The campaign website to reform this area of law is now the most visited on Google when members of the public search for information on ‘leave to remove’. Heads must come out of the sand – www.relocationcampaign.co.uk.

In contrast to the Court of Appeal, and in the words of the High Court in the case AR (A Child: Relocation) [2010] EWHC 1346 (Fam) – the guidance in Payne v Payne must be ‘urgently reviewed’. The legal reasons are that existing guidance:

a) Fails to afford sufficient weight to the child’s wishes and feelings;

b) Fails to afford appropriate credence or weight to abundant and indisputable scientific research and evidence demonstrating the deleterious psychological, developmental and educational consequences a child is likely to experience in the absence of a ‘meaningful’ relationship with both its parents. This research can be found within the report presented at Westminster in November 2010 and entitled ‘Family Law: Relocation: The Case for Reform’;

c) Affords too great a weight to the un-scientific and un-proven supposition - pontificated upon in the case of Poel in 1970, but still remaining the legal bedrock of relocation law - that a primary carer’s disappointment at the refusal of her application would impact so greatly upon her as impact on her ability to provide adequate care to the children, thereby causing them harm:

i) In 40 years, there has been no expert evidence which supports the court’s suppositions in this regard;

ii) This supposition is given equal (and in practice, greater) importance in the judicial balancing exercise than the statutory child welfare considerations decided by Parliament and set out in s.1(3) of the Children Act 1989;

iii) It is therefore arguable that the guidance in Payne v Payne and its later application by the judiciary has been made without care (‘per incuriam’), and should therefore be set aside. Our current (and previous) President of the Family Division of the Court is therefore wrong in his opinion that only Parliament or the Supreme Court amend the guidance given in Payne.

d) Fails to consider the counter view point that the happiness and well-being of a child as a direct consequence of its remaining in a meaningful relationship with both parents (which is supported by expert evidence) and in its familiar environment and while maintaining peer friendships and while suffering no disturbance to their education will, in and of itself, contribute to the happiness and contentment of the ‘primary carer’;

e) Relegates the harm done to the child from a permanent breach of its ‘meaningful’ relationship with the parent left-behind;

f) Fails to give proper consideration to the difficulty in maintaining the parent/child relationship should the relocating parent breach the UK made contact order. The child in Payne v Payne went on to lose all contact with their UK parent. It is a trite point that the case upheld by the court as the model for all future relocation cases, for the child in that case, failed. The child’s right to an on-going relationship with both parents, as set out in the United Nations Convention on the Rights of the Child, is not afforded adequate protection;

g) Affords too great a weight to the wishes and feelings of the applicant parent, notwithstanding the sincerity and ‘genuineness’ of his/her motives, failing to properly balance these against the competing rights of the child and the respondent parent to an on-going family life;

h) Fails to acknowledge the benefit to a child of maintaining the stability and familiarity of its social, cultural and educational environment, particularly when the child has already suffered the trauma of the separation of its parents;

i) The guidance in Payne goes counter to the importance given by Parliament in statute (s.1(3)(c) CA 1989) of maintaining the status quo as a significant factor in ensuring the child’s welfare;

j) Fails to give appropriate credence or weight to the scientific evidence demonstrating that a ‘meaningful’ and wholesome relationship cannot be adequately maintained on the basis of infrequent contact in motel rooms or via electronic media such as Skype;

k) Fails to take into proper account the major societal shifts in the organisational dynamics of modern family life which have undoubtedly occurred since 1970 when the court’s guidance was first set, in particular, the nine-fold increase in father involvement in childcare, and the psychological, sociological and educational development of their children. In the case Payne in 2001 (para 29), LJ Thorpe stated that he had no evidence to support this assertion. That evidence now exists. The judiciary have failed in their incumbent duty to ensure the proper development of law to reflect societal shifts in parenting;

l) Fails to appreciate that, in hearing Ancillary Relief matters separately and at a later date, little or no detailed consideration is given to the important issue of whether or not overseas contact orders are affordable and achievable in practice;

m) Implies judgments concerning child relocation in UK family law are ‘fact specific’ when they are not:

i) In the case Re G (Children) [2005] FLR 166, the court went so far as to declare there no need for mothers to provide expert evidence to support they would be so distressed by the refusal of their application to the extent that the children would suffer significant harm due to their distress;

ii) Expert evidence concerning the deleterious impact of removal from a parent is routinely ignored in judgments;

iii) No expert evidence exists to support judicial ideology in these cases. Judicial opinion is not fact;

iv) Relocation cases often contain numerous and detailed ‘facts’ pertaining to the appearance and demeanour of the applicant and respondent parents in the witness stand. The judge’s perception is not fact, but opinion, often not taking account of the stress and unfamiliarity of proceedings on the parties concerned, and making assumptions as to the parties’ demeanour and reasons for this. Judgments are afterwards made on a ‘balance of probabilities’ based on opinion, rather than the more strident test of ‘beyond reasonable doubt’ based on incontrovertible evidence.

Judgments in relocation cases, therefore, are not ‘fact’ based, but arrived at primarily as a consequence of the application of the principles and ideology of Payne, and not, as is constantly asserted by the Court of Appeal, as a consequence of the ‘facts’.

Other ‘facts’ are given little weight in practice, which may not even be recorded in the judgment. For example, facts concerning the child’s anxieties about having to relocate overseas; its preference to remain in the UK and in contact with both parents, to remain at its school and in contact with friends; the applicant’s nexus of friends; the applicant’s general resourcefulness, work experience in the UK and so on. These and many other ‘facts’ which may be absent from judgments or given little weight precisely because the suppositions and ideology of Payne deemed them to be of a lesser importance.

n) Fails to appreciate that a judgment in favour of removal is only considered to be ‘powerful’ when assessed using the now much criticised 1970’s unsubstantiated principles, directives and ideology upheld within Payne v Payne. If British relocation judgments were viewed through the lens of progressive, child-focused, evidence-based New Zealand relocation law, they would NOT be considered "powerful";

o) Is markedly different from peer and modern guidance within the international legal fraternity, as set out in the Washington Declaration made in March 2010. Judicial thinking in the UK goes counter to that of the experts from 50 other countries.

A further fallacy is that the higher courts accept such cases to be finely balanced. Evidence strongly implies otherwise. 90% of relocation cases result in the children relocating, and not a single appeal of the grant of leave to remove has been successful at the Royal Courts of Justice. In fact, these cases may be finely balanced, but in terms of judicial discretion, the binding guidance enforces a rigidity which goes counter to child welfare, prohibiting the proper development of law, and forcing judges in the lower courts to pronounce judgments with which they may not agree.

Visit The Relocation Campaign website

1st Quarter 2011 - New content on The Custody Minefield website

2011-04-20T16:22:00.000-07:00

Just a brief mention website content update.

3 new smartphone information sheets, including caselaw summaries on parental alienation, a guide on writing a skeleton argument, a guide on writing a statement for court. Even more new content is currently being developed.

New court forms brought in after 6th April 2011 are accessible via our Court Forms page.

A new process guide is available on the court's new mediation procedures (introduced after 6th April 2011). Also available, the new Form FM1 available for download in an MSWord format.

Added to our site, an MSWord template for s.41 certificates (made under the Brussels II revised regulations). It is essential this is completed in leave to remove cases where the country of relocation is in Europe (except for Denmark), and a contact order is made in the UK courts. A s.41 certificate must be signed to make the order enforceable in the other European member state.

Access them all via our Family Law Menu.

In terms of visits to The Custody Minefield website, 140% growth in visits... a little over 50,000 in three months.

Judicial U-Turns - Relocation Law

2011-04-20T12:00:00.001-07:00

The father from the case Re D (Children) [2010] EWCA Civ 50 comments on Sir Nicholas Wall's recent U-turn on his acceptance that the current guidance which the courts must follow ignores child welfare. Names are withheld in light of the children's right to anonymity under current legislation.

In essence, and as explained by the father, despite Sir Nicholas Wall taking three weeks to consider his 2010 wording before making judgment, re-iterating his opinion in the later case Re D (Children) [2010] EWCA Civ 593, which was further supported by the judgment of Sir Nicholas Mostyn in the case AR (A Child: Relocation) [2010] EWHC 1346 (Mr Justice Mostyn also happens to have been editor of Jordan's International Family Law)... our President of the Family Courts has now withdrawn his words after criticism from Lord Justice Wilson in the judgment H (A Child) [2010] EWCA Civ 915.

No wonder Lord Justice Wilson called the guidance controversial, when the judiciary themselves cannot agree, and their most senior members seem convinced that change is needed one moment, and change their minds the next. It doesn't help one to have confidence in their decision making in cases concerning relocation law.

Read the father's comments at http://www.relocationcampaign.co.uk/uturns.html

Please visit http://www.relocationcampaign.co.uk/toolkit.htm where you'll find tools to help you send an email to your MP, asking them to raise these matters with the Ministry of Justice and Family Justice Review.

New Content - New Design for The Custody Minefield

2011-02-23T17:13:00.000-08:00

There's a new look for The Custody Minefield website. We're gearing up content for when legal aid goes.

31 guides/information sheets produced so far in our new 'smartphone format' which answer 271 family law questions. All guides can be accessed from the home page or via a separate Family Law Menu. Guides now include 'Contents' sections utilising bookmarks to make navigation easier. All content in our Family Law Menu can be read either on a normal PC based web browser or on a smartphone or tablet. All are designed to be fast loading.

New information sheets published in the last week include guidance on writing statements, and case law related to interim and supervised contact, and case law related to children's wishes and feelings and PA.

The new 'Family Law Menu' includes information sheets on:

Family Law

Cafcass - the role of the Children and Family Court Advisory Support Service

Contact Orders - explaining what a contact order is, and how to make an application to the court

Contact Orders – Warning Notices and Enforcement - information for non-resident parents to assist in applications to the court to enforce a contact order

Court Fees - application fees for different types of court order

Courts and Confidentiality - who you can discuss your court case with

Domestic Parental Child Abduction - what to do if your ex-partner takes the children and disappears

Emergency Protection Orders - a guide on applying to the courts directly if children are at risk of significant harm

Family Assistance Orders - a type of order, where the court directs a welfare officer to assist the family

Flexible Working - employment law, flexible working arrangements may be needed to support your parenting plan and contact/residence proposals

Interim and Supervised Contact Case Law – case law concerning both interim and supervised contact

Internal Relocation - legal information should your ex-partner decide to relocate and take the children with them

Internal Relocation Case Law - case law concerning relocation

Leave to Remove - legal information should your ex-partner decide to emigrate with the children. Also see our detailed e-guide

Leave to Remove Case Law - case law concerning relocation abroad in family law

Mediation - an alternative to court action, usually cheaper, less stressful, and more likely to satisfy all concerned if both parties will co-operate and compromise

Parental Responsibility - explaining a parent's legal rights and duties, how parental responsibility may be acquired, and giving tools to assist you in being involved in decisions about your children's lives

Practice Directions – Court Bundles - court guidance on the preparation and presentation of information for the court

Practice Guidance – McKenzie Friends - guidance on the role of lay advisors in the family courts

Prohibited Steps Orders - explaining what a prohibitive steps order is, and how to make an application to the court

Residence Orders - explaining what a residence order is, and how to make an application to the court.

Shared Residence - explaining shared residence, and how to apply to the court. Also see our detailed e-book

Shared Residence Case Law - case law concerning shared residence

Special Guardianship Orders - explaining SGOs, and likely to be of particular interest to grandparents, kinship and foster carers

Specific Issue Orders - explaining what a residence order is, and how to make an application to the court.

Step Parent Acquiring – Parental Responsibility - information on how a step-parent may acquire parental responsibility for their step-children

Wishes and Feelings Case Law – in relation to children’s wishes and feelings, parental alienation and adult determination of children’s needs.

Writing a Statement for Court - Contact and Shared Residence cases – a information on what to include and structure.

Mental Health and Wellbeing

Helping Children Cope

Managing Stress

Psychological Assessments including suggestions for letters of instruction

Tips for Assessment Interviews

New Guide: Emergency Protection Orders

2011-02-09T15:59:00.000-08:00

With the high profile failings of Social Services in the Baby P case, we have introduced a guide on how members of the public can apply for an Emergency Protection Order for children at risk. This is not something that should be done lightly. The circumstances MUST BE that you are aware that children are at risk of, or suffering significant harm. With impending cutbacks to Children’s Services budgets, we have decided to make this factsheet and guide freely available. Click on the title below to view:

Emergency Protection Orders

Any adult can apply to the court for an Emergency Protection Order, but it is rare for a member of the public to do so (not least because few people know they can). We would envisage that the most likely people to use this factsheet are members of the extended family such as grandparents, aunts and uncles, or a non-resident parent who becomes aware that the children are suffering harm. When applying for an Emergency Protection Order, you are applying for the children to be placed in your temporary care for a period of 8 days (during which time, Social Services have an obligation to carry out an investigation) and you can apply to the court for further orders (such as residence).

The factsheet provides guidance on how to make the application to the court, which court forms to use, the cost of an application, what might happen if social services or the police become involved, when such an application may or may not be granted, what may happen during the 8 day period in which the order lasts, and gives suggestions for when meeting the police or social services

If you believe a child is at immediate risk of physical harm, we would always recommend you call the police immediately. This factsheet is primarily intended for when you have notified the agencies, but do not believe they are taking matters seriously and want the matter to be heard by a judge, and when the situation demands urgent judicial attention to ensure the children's safety and wellbeing.

Have the Wigs returned as a political force?

2011-02-05T12:12:00.000-08:00

This week, Sir Nicholas Wall, President of the Family Division of the Courts, made plain his view that unmarried couples should have the same right to property as that of married couples. I can see arguments on both sides. The objective view is that entering into a contract is a choice, and entering into a contract requires consent by both parties. Some say that if people want the contractual rights that come with marriage, they should get married. The traditionalists worry that widening rights for unmarried partners weakens the institution of marriage.

There is a valid case for saying that where assets have been accumulated by partners over the course of a long relationship, these should be divided. The view that a man should support a woman for life is somewhat patriarchal.

Should Sir Nicholas be involving himself in these debates? The Guide to Judicial Conduct advises caution. The Daily Mail and even The Times considered that Sir Nicholas had crossed the line.

Lord Devlin, a former Law Lord said “The judges are the keepers of the law and the qualities they need for that task are not those of the creative law-maker. Enthusiasm is not and cannot be a judicial virtue. It means taking sides and if a judge takes sides, he loses the appearance of impartiality and quite possibly impartiality itself.”

On the issue of domestic violence, Sir Nicholas’s October 2010 speech called into question his impartiality on the subject of domestic violence. Admitting his views were not politically correct, he said domestic violence was mainly a male problem. According to evidence (the British Crime Survey), 40% of victims of domestic violence are men (including being a victim of severe force). What may be a more accurate reflection on this serious issue is that the courts treat male on female violence (whether physical or psychological) far more seriously when the victim is female. Sir Nicholas went on to give a somewhat absurd notion that 'if men embrace the comfortable doctrine that domestic violence affects people of both genders, that is a short step away from doing nothing about it?' Absolutely bizarre! You can read this gem for yourself at paragraph 8 of his speech.

There is a belief that gender discrimination in the courts is systemic, and particularly in relocation cases. The courts follow a historic and patriarchal view that mothers will not be able to emotionally cope should their wish to emigrate with the children be denied by the court. The father is expected to handle his children going to another country, and his relationship with them being pared to the bone if not lost completely. The impact on the children, in the cases I’ve been involved in, receives little or no consideration at all.

I can accept Sir Nicholas condemning the last Government for their plans to make the courts self funding (which would have made family law inaccessible to all bar the rich), and conduct guidelines would allow this as the Government’s plans would have directly impinged on the administration of justice.

Sir Nicholas’s latest opinions cannot be so easily defended, as he crosses the line between judge and politician. On the subject of domestic violence and gender, it isn’t only a question as to whether he should have entered the political fray, but his publicly voicing an opinion which was both politically and factually incorrect.

In November 2009, in an earlier speech to the Association of Lawyers for Children, Sir Nicholas said it was the duty of judges to speak out over changes that were damaging the service to children and families. He also said that “the time has now come when the historical and indeed instinctive judicial reluctance to go public...must come to an end.” Perhaps his own house needs to be put in order first.

If Sir Nicholas is to restore some confidence in his office and the family courts in general, he might like to consider ruling that the guidance in relocation cases was made without care by his colleague LJ Thorpe, and set it aside. He should provide practice directions reminding his judiciary that all evidence, including child welfare research must be considered in relocation cases. For him to be seen to follow a non-discriminatory position on domestic violence, he should perhaps include contact denial and the making of false allegations as forms of domestic violence.

Michael Robinson - www.thecustodyminefield.com

Mum's the word after new court ruling

2011-01-27T16:19:00.000-08:00

‘Men and women who shout at their partners risk being thrown out of their homes under a sweeping ruling by judges yesterday’ said the Daily Mail on 27^th January.[1]

This widening of the judiciary’s powers comes only a month after Stephen Cobb QC, chair of the Family Law Bar Association, warned that the proposed reform of legal aid will motivate parties to make false allegations (legal aid will only be available to those who allege domestic violence). [2]

The risk of false allegations grows, while punishments become more draconian (a verbal argument could result in eviction and homelessness, a conviction, and restricted contact with children). Are the courts likely to be impartial should both parties claim they were shouted at? Should you be worried about bias or prejudice?

Sir Nicholas Wall, our President of the Family Courts said only in October ‘In my experience, physical domestic abuse is largely a male problem. There are, of course, women who physically abuse their partners and their children, but they are, in my experience, the minority. This is not a politically correct opinion. The politically correct view is that domestic violence affects both sexes and is perpetrated by both.’[3]

In family law, your guilt or innocence is decided on what a judge believes to be probable. It is not necessary for an allegation to be proved beyond all reasonable doubt, as happens in criminal trials. This is why in family law, it is even more important that judicial opinion does not prejudge, and is ideally based on fact.

The British Crime Survey records that 1 in 4 women and 1 in 6 men are victims of DV.[4] In 2008/9, 40% of victims of severe force were male[5] (629,000 men were victims of DV). The experience of a good number of litigants I know is that the courts are indifferent to female violence in family cases. The belief that domestic violence affects both sexes isn’t just politically correct, it is a fact, and not one to be trivialised by our leading judge.

If contact denial and the making of false allegations were included in the new definition of domestic violence, the majority of victims might even be male. Male or female, aren’t both entitled to the court’s protection, and the recognition that such abuse is not a gender issue, but one of control and violence (whether physical, emotional, financial or psychological)?

[1] Daily Mail – Steve Doughty ‘Shout at your spouse and risk losing your home: It’s just the same as domestic violence warns woman judge (27.01.2011)

[2] Law Society Gazette ‘Legal aid cuts spark child abduction fears’ (27.01.2011)

[3] Resolution - Sir Nicholas Wall – ‘Keynote address at domestic abuse conference’ (15.10.2010)

[4] British Crime Survey 2004/5

[5] British Crime Survey 2008/9 – Statistical Volume No 2 (England and Wales) – see Chapter 3 (table 3.01 p.70)

Family Justice Review - January Update from the Review Panel

2011-01-19T16:18:00.000-08:00

You may have seen in recent days that the Department for Work and Pensions (DWP) has published a green paper on the future of the Child Maintenance and Enforcement Commission. It is entitled Strengthening families, promoting parental responsibility: the future of child maintenance. You can access a copy here: http://www.dwp.gov.uk/consultations/2011/strengthening-families.shtml

As part of the green paper, DWP have asked us to look at the extent to which decisions on maintenance or contact should have a bearing on each other - alongside our emerging proposals for whole-system reform.

The full proposal is laid out in the Green Paper as follows:

We know that one of the most significant issues for non-resident parents is when contact with their children is denied or withheld. This can lead to tension and hostility between the parents, especially where maintenance is still being collected through the statutory system. We are keen to explore approaches that allow maintenance arrangements to be considered in the round when determining appropriate contact enforcement measures. We recognise, however, that there are challenges in linking maintenance and contact in this way, most importantly how such decisions might impact on the best interests of the child. We also recognise that it is important that this issue is considered within the context of wider reforms that are currently being progressed elsewhere in government. We have therefore requested that the Family Justice Review consider this issue as part of its wider work in developing options for reform of the Family Justice Sy stem.

I am aware that you may have an opinion on this issue, but might not have addressed it in your evidence to the Review. We plan to set out the issues and invite further views on this in our interim report, to be published at the end of March.

If, however, you want to pass on any immediate comments on this proposal for our consideration ahead of this, we would be grateful to receive these by Friday 4 February.

Please submit any evidence to: familyjusticereview@justice.gsi.gov.uk

Kind regards,

David Norgrove
Chair of the Family Justice Review

2010 productivity...

2011-01-18T14:56:00.000-08:00

What we did in 2010...

1 ‘quick guide’ published to prevent international child abduction
1 guide on emergency protection orders written and published
1 speech in Westminster
3 talks for charities
4 hours of talks delivered...
5 microsoft word letter templates designed and published
8 microsoft word ‘court form’ templates designed for download
11 family law guides published in pdf format
17 court forms made available for download
20 articles on relocation published
30 factsheets/information sheets written for smart phones
34 pages of information published in the leave to remove e-guide
39 pieces of case law analysed and summaries published
41 pages of report writing on relocation and leave to remove published
93 pages of information published in the shared residence e-book
1,317 copies of the Parliamentary Briefing Report on Relocation downloaded
10,324 received hits on the Relocation Campaign web site
108,920 received hits on The Custody Minefield web site

...and answered a fair number of telephone and email enquiries too!

...and now we're off and running in 2011... should busy... the plans are all mapped out!

Site Visits - www.thecustodyminefield.com

2011-01-16T12:41:00.000-08:00

It's shaping up to be a busy year.

In 2010, we saw a 100% growth in visits to our site, finishing the year with 108,290 hits.

In January 2010, we had 6,000 visits. Already in 2011, the number of visits is 7,023 in the first 15 days.

When legal aid goes in private family law, we anticipate the numbers going through the roof.

We'll be ready. More content is being written, so parents have somewhere to turn for up-to-date legal information.

Relocation Campaign Update

2011-01-08T11:59:00.000-08:00

Two fairly important updates for you. The first is a letter in response to my second Relocation Report which I and FNF presented at Parliament on 9^th November 2010.

The reply comes from Lord McNally, Deputy Leader of the House of Lords, and Minister for State with responsibility for this area of law. Within his letter, he recognises the President of the Family Courts’ acceptance in the case D (A Child) that “too great an emphasis is placed on the wishes of the relocating parent”.

He goes on to say it would be premature for the Government to make any decisions about changing the substantive law on relocation while there is a review of the family justice system taking place. The review will produce an interim report in the Spring of 2011, with a final report following in Autumn 2011.

Chris Sandford, Secretariat to the Family Justice Review has confirmed that the Review Panel will be considering the evidence put forward in my report ‘Relocation: The Case for Reform’ as part of the review. We await their interim report with interest.

My sincere thanks to Rory Stewart MP for taking the matter up with both Lord McNally and the Family Justice Review panel.

Michael

Relocation: The Case for Reform

2011-01-08T11:54:00.000-08:00

It's been a while since I've blogged, but I've been busy!

On 9th November 2010, our new Parliamentary briefing report on Relocation: Child Welfare and the Case for Reform was launched at a seminar on relocation at the Palace of Westminster (click on the report title to download) to an audience of solicitors, barristers, psychiatrists, MPs and representatives of third sector organisations.

Also speaking were Dr Samantha Callan of the Centre for Social Justice, Dr Marilyn Freeman of Reunite, Craig Pickering of Families Need Fathers, and Ann Thomas, Managing Partner of the International Family Law Group.

You can read my speech here, which was reported in Family Law Week.

We also recommend you read the speech by Ann Thomas, managing partner of the International Family Law Group. 'Moving country but losing the child: Reform and Resolution of Child Relocation Law and Practice'. Ann Thomas is one of the UK's most respected international law practitioners. guardians who have had a child abducted or who fear child abduction. She is a past chair of the International Committee and a past member of the London Regional Committee of Resolution (formerly known as SFLA). Ann is former chair of the Family Law Steering group of LawNet and former President and founder of the Eurojuris International Family Lawyers Practice Group whose headquarters are in Brussels. She is a member of The International Bar Association and the Institute of Directors.

Extract 'How can we, in the English legal profession, have gone so wrong, have failed so many children, have inadvertently engaged in gender discrimination almost 2 generations, have fallen so out of step with many other countries and, most of all, failed to acknowledge trends in parenting patterns, especially in international families, over the past 40 years? The time has passed for tinkering around the edges of our law, of political deferences to legal precedents, awaiting for the Supreme Court to find a suitable test case and hoping international conventions will come to our aid. As Prof Marilyn Freeman has shown in her studies, as confirmed by those of Professors Patrick Parkinson and Judy Cashmore from the University of Sydney, the size of the problem is large and will only grow. The costs of the relocation litigation, costs of travel for contact in the cost to the lives of children demand a cost-effective solution.''