Prorogue No More?

Prorogation of jurisdiction might not sound like a terribly sexy topic for a blog post, but the decision of the Court of Justice of the European Union in Case C-436/13 E v B (1 October 2014) is rather important for family lawyers with an international element to their practices.

 

Proro-what?

 

I guess the first question many readers might have is: what is prorogation?

 

This all relates to the question of when a court has jurisdiction (power) to deal with a case when there is an international aspect to the matter. In children cases, the normal test is simple: the court that has jurisdiction is the court of the country in which the child is "habitually resident". Prorogation is about an alternative basis for jurisdiction, and we use it to refer to the courts of one country gaining (or retaining) jurisdiction in a dispute where another country's courts would otherwise be dealing with the case.

 

Its application in international child law comes from Article 12 of Council Regulation (EC) 2201/2003, commonly known as the Brussels II Revised Regulation, the relevant parts of which read:

 

"Article 12

Prorogation of jurisdiction

 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility ... where:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child."

So there are a number of elements here which determine when a court of one country has jurisdiction outside the normal rule that jurisdiction comes with habitual residence:

1. the child has a substantial connection with the country, e.g. by being a national of that country or by one parent living there;
2. the parties to the proceedings (usually the parents) accept the jurisdiction expressly or in an unequivocal manner;
3. their acceptance is 'at the time the court is seised' (meaning when the court proceedings start); and
4. it is in the child's best interests.

The second of those limbs was considered in passing by the Supreme Court in a case called Re I [2009] UKSC 10. In that case, Lady Hale suggested that is was likely that the second limb would mean either that the parties accepted the court's jurisdiction at the time the case started, or that they had previously expressly indicated that they would accept it (para 35). However, that issue did not matter in Re I, and anyway it is a question of European law and so only the Court of Justice of the EU can determine it authoritatively.

 

And that brings us to E v B.

The facts


The case arose from a preliminary reference from the English Court of Appeal. In short, the parties had lived in Spain where their child, S, was born in 2006. Legal proceedings took place there, the effect of which was (in the old English terms) that the mother had residence and the father contact. This position was reached following an agreement in July 2010, which was incorporated into a court judgment in Spain in October 2010.

 

The mother presumably then moved to England, though that minor detail appears not to be mentioned in the CJEU judgment, since in December 2010 the mother applied to the English court for orders which would reduce the amount of contact that the father had. In January 2011, the father responded by seeing orders in the English court to enforce the existing Spanish orders. At the subsequent hearing in December 2011, the mother "acknowledged that ... she had prorogued the jurisdiction of the [Spanish court] under Article 12(3) of [Regulation (EC) 2201/2003]" (para 21). The October 2010 order was therefore enforced in the English court.

 

The mother then brought proceedings in Spain, seeking to transfer jurisdiction to England. The Spanish court ruled that there were no live proceedings in that court, and therefore that there was nothing to transfer. In June 2012, the mother applied again to the English court, and this time the High Court Judge determined that the English court did indeed have jurisdiction to hear her application. The father appealed, and the Court of Appeal made the preliminary reference to the CJEU.


The decision


The CJEU held that the question of whether a court had jurisdiction had to be answered (a) in relation to the specific proceedings in question (para 40), and (b) at the time the court is seised, i.e. "when the document instituting the proceedings is lodged with the court" (para 38). (Also, regardless of that, "jurisdiction ... must be determined, above all, in the best interests of the child" (para 45).)


The upshot of that is:

"that a prorogation of jurisdiction ... is valid only in relation to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that that jurisdiction comes to an end ... following the final conclusion of the proceedings from which the prorogation of jurisdiction derives" (para 49)

In other words, the parties can agree that an existing case shall remain with the courts in country X even if the child moves and becomes habitually resident in country Y; or the parties can agree, at the moment that new proceedings are proposed, that they will accept that country X will deal with it even though the child is habitually resident in country Y; but, crucially, the parties cannot agree in advance that they will accept jurisdiction in country X for potential future proceedings.


Why does that matter?


Well, on the basis of the Supreme Court's comments in Re I, it has become common in relocation cases for the parents to agree that, when the child relocates abroad, the English courts will retain jurisdiction for some period of time (up to two years is common). The upshot of E v B is that those agreements are entirely worthless.


The parties can agree that ongoing proceedings will remain in England, but as soon as those proceedings end - which they usually do as soon as the relocation order is formally made - then prorogation is no longer effective. If there are future proceedings needed (which are fresh proceedings - you cannot usually revise old proceedings once they finish), the parties can then agree to accept the English courts as having jurisdiction - but the parent who remained in England after the relocation cannot rely on an earlier agreement, no matter how clearly stated, as the basis of jurisdiction later.


For those involved in relocation disputes, whether as lawyers or as parents, this decision is of high importance.

Thanks to Janet Broadley of Bindmans Solicitors

 for bringing this judgment to my attention.

The Strange Case of Surrogacy Law

A surrogacy arrangement arises when one woman carries a child with the intention that she will not be the child's mother. Agreements to do this are not "enforceable" in English law -- meaning that you cannot force someone to follow through on an agreement if they enter into one -- but they are not "illegal" as long as you don't pay for the service. (Expenses can be paid, but no fee for the service.)

When the child is born, the people who are to be the child's parents apply under s 54 of the Human Fertilisation and Embryology Act 2008 for a "parental order", which transfers the child's legal parentage from the woman who carried the child during pregnancy (and who is automatically "the mother" in law when the child is born) to the intended parents.

That's all quite progressive, in many ways, but there is an oddity. Section 54 says this:

“54  Parental orders

(1)     On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a)     the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b)     the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c)     the conditions in subsections (2) to (8) are satisfied.

(2)     The applicants must be—

(a)     husband and wife,^[1]

(b)     civil partners of each other, or

(c)     two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.”

The question is why parental orders are available only on an application by "two people". (Insofar as two people apply together, I have no difficulty in the further requirements set out by subsection (2).) Two analogous areas of family law reveal that the law is, in general, accepting of single people becoming parents via state-sanctioned means, namely adoption and children born following assisted reproduction.

In terms of adoption, section 51 of the Adoption and Children Act 2002 allows an adoption order to be made "on the application of one person". Similarly, a single woman can receive treatment at a clinic and have a child using donor sperm, and that child will have only one legal parent. 

Consequently, the law provides that: 

-- a single woman may become a child's sole legal parent using donor sperm; 

-- a single person, whether a man or a woman, may become a child's sole legal parent under adoption law; and 

-- any "two people" who are a couple (whether married, civil partners, or in a stable cohabiting relationship) can become a child's legal parents via a parental order following a surrogacy arrangement. 

Given these provisions, it is difficult to see any reasonable justification for preventing a single person becoming a child’s sole legal parent using a parental order. It cannot be said now (as perhaps it couple have been before the 2002 and 2008 Acts) that the law’s aim is that children have two legal parents, since there are two distinct ways in which the law allows a child to have a sole legal parent. Nor can it be said that the law has any policy of favouring, say, women as sole parents, since a single man can adopt under the 2002 Act (and in any case, such a policy would obviously be entirely unjustifiably discriminatory). 

So what could be the aim? It is difficult to think of one. What we see here, I suspect, is a position reached by piecemeal development which has accidentally created an anomaly. However, this anomaly is unjustifiable and creates discrimination against single people -- especially single men, who have fewer ways of becoming a parent in the absence of a partner than do single women. 

It's a small point, perhaps, but I think an important one. Also one that is very easy to change. 

---

[1] Presumably by oversight, the Marriage (Same-Sex Couples) Act 2013 does not amend this subsection to include married same-sex couples, though the 2013 Act does make consequential amendments to most other similar phrases, including in several other sections of the HFEA. 

“A Narrow Textual Analysis”: Re P (Relocation) [2014] EWCA Civ 842

Last month, the Court of Appeal allowed an appeal against a trial judge’s decision to refuse to allow a mother to relocate permanently with two children, aged 3 and 2, to Germany. The basis for that appeal was that the judge had made a key finding about the mother’s motivation for seeking to relocate which was unsupported by the evidence. However, that conclusion relies on what the House of Lords once described as “a narrow textual analysis which enables [appellate judges] to claim that [the trial judge] misdirected himself”, and thus allows the appeal court “to subvert the principle that they should not substitute their own discretion for that of the judge”.

The crucial passage of the trial judge’s judgment was at para 16, where she said this:

"What is the mother's motivation to relocate to Germany?  The mother's case is that she and the children will live in Germany where they will enjoy a better standard of living.  I do not accept that that is her true or primary motivation.  I am satisfied that the mother's primary objective for relocation is to limit the involvement of the father in the lives of the children.  It is the mother who wishes to control the father's relationship with the children and not the father exercising control over the mother.  Living in Germany with the children I am satisfied that the mother perceives that she would be the parent with control.  Maintaining the father's relationship through contact is not high on her list of priorities."

In the Court of Appeal, Ryder LJ considered that, aside from this issue about the mother’s motivation, “the other factors that are identified in the judgment would have left the cases of the mother and father relatively evenly balanced” (para 9).

Two concerns therefore arise out of the Court of Appeal’s decision to allow the mother’s appeal (aside from the cost and delay of a re-trial).

The first is the basis on which the Court of Appeal criticised the judge for her conclusions about the mother’s motivations. There was some discussion in the Court of Appeal about how, bar one short period of time, the mother had always complied with the contact arrangements which had been put in place by consent. Ryder LJ criticised the judge for “eliding” (a) a motivation to limit contact to that set out in the order, and (b) a motivation to limit the father’s role in the children’s lives. The Court of Appeal also considered that a transcript of the evidence did not support the conclusions reached by the judge.

With respect to Ryder LJ, none of these points necessarily undermines the trial judge’s conclusions. When a judge sees a witness give evidence, far more is communicated to her than the mere words said. The judge is able to, and is entitled to, assess the demeanour, tone and attitude of a witness, and the judge may not be able to express in exact language why she reached the conclusion that a witness was honest or not, evasive or not, and so on. As Lord Hoffmann once put it:

“specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

A judge with 12 years’ experience as a full-time judge sitting in family cases is entitled to use her judgment to assess a witness’s motivation, both from things said and by inference, and then to rely on that assessment. That is what judges are paid for. If it were only a matter of recording the words said, oral evidence would be a complete waste of time. The skill and experience of the trial judge goes far beyond that, and needs to be respected by the Court of Appeal.

The second point of concern is the apparent weight that Ryder LJ appears to give to the fact that, aside from the mother’s motivation, the case might be seen as finely balanced. Leaving aside the motivation point, the mother was bringing an application and therefore faced the task of persuading the judge that making an order for relocation was better for the children than making no order at all: Children Act 1989, s 1(5). If the matter was finely balanced without regard for the mother’s motivation, and if the mother’s motivation is one relevant factor (which clearly it is), it is very hard to see that the decision which the experienced trial judge took to refuse the application was “wrong”.

Re P shows the Court of Appeal engaging in a narrow textual analysis to overturn a decision with which it disagreed, but which was reached on a legitimate basis and cannot genuinely be said to be wrong. Any judgment can be criticised for the precise way in which issues are put or the details included or omitted. That cannot be the way for an appeal court to operate, both because the appellate system would become unworkable and because it misunderstands the overall point of a judgment, which is to give sufficient explanation of the reasoning process undertaken by the judge in reaching her conclusion. 

Ryder LJ and the Meaning of Non-Accidental Injury

A couple of weeks ago, the Court of Appeal (Tomlinson, Ryder and Christopher Clarke LJJ) gave judgment in Re S (A Child)[2014] EWCA Civ 25. The case involved a small child who was the subject of child protection proceedings, the question in short being whether two skull fractures had been inflicted upon her intentionally by one of her parents, or had arisen as a result of an accident.

In itself, that is a common enough question for family courts to be asked in child protection cases. It is standard practice to refer to these two categories of cause (accidental or intentional) as 'accidental injury' and 'non-accidental injury'. This is so common that practitioners often abbreviate the latter as 'NAI'. So my interest in Re S relates to a single paragraph of Ryder LJ's leading judgment, where the judge said this:

1. The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

As a matter of etymology, Ryder LJ is quite right that the word 'injury' carries with it a fault element. For lawyers, its links with the latin injuria are obvious, and the OED's first definition says 'Wrongful action or treatment; violation or infringement of another's rights; or mischief wilfully and unjustly inflicted'.

Which is fine, except... that's not how the word is actually used in modern language. We use it to mean physical damage, especially to the body of a person or animal, with no implication of wrongful cause. For example, when the BBC said a few days ago that 'Arsenal boss Arsene Wenger said he would not have signed midfielder Kim Kallstron had he known about the Swede's back injury earlier', that was a perfectly acceptable way to say that the footballer had hurt his back when he fell over during training. It was no one's fault. It was in no way 'wrongful', but it still makes sense to say that he is injured, or that he has an injury. Indeed, it was an accidental injury. When time is added to a sports game under the heading of 'injury time', it may well be time that was spent treating a player who hurt him or herself falling over or pulling a muscle, without any 'wrong' from another player.

Nor indeed is this broader use anything new. Looking down further on the OED's definition, we find meaning 3: 'Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage'. The OED traces this usage to 1430, but their 1555 example of 'the injury of time consuming all things' ('Thiniurie of tyme consumynge all thynges') seems particularly instructive. The ravages of time can hardly be said to have a fault element to them.

So, with all due respect to Ryder LJ, I don't think that the phrase non-accidental injury is tautologous. It makes perfect sense, as does the phrase 'accidental injury' which the judge describes in para 20 as 'an oxymoron that is unhelpful as a description'. On the contrary, I think this phrase to be perfectly meaningful and of potentially great use in the context of child protection proceedings. 

Relocation Disputes: Approaches in England and New Zealand

It's just a couple of weeks now until the publication of Relocation Disputes: Law and Practice in England and New Zealand (Hart Publishing, pictured). "Finally", you say, "the ideal stocking-filler present that I've been waiting for!" I'm fully supportive of that idea, so for those who aren't tempted enough by the lovely Edward Hopper on the cover ("Route 6 Eastham", 1941), here's a little more about the book.

This book started life in 2007, when I began my doctorate at the University of Oxford. I was interested in looking at how the family justice system deals with cases involving children, and a colleague had suggested that relocation disputes might make an interesting case study. Relocation cases, which I've written about here a couple of times before - see here, here and here for the main posts - are disputes between separated parents where one of them (usually but not always the mother) seeks to take the child to live somewhere else, and the other parent objects to that proposal. The 'somewhere else' can be a relatively short distance away, such as the other side of a large city or another nearby town, but in terms of cases which reach the attention of the law they more commonly involve longer distances, and in particular they often involve proposed international moves.

Relocation cases are commonly thought by judges and lawyers to be amongst the most difficult cases that they deal with between parents. While there are exceptions, in general what you see in a relocation dispute is a conflict between two very good, very committed parents, both of whom have legitimate desires and plans regarding their children. The legal framework governing the resolution of these disputes is actually quite straightforward in most jurisdictions. In England and Wales, s 1 of the Children Act 1989 makes the child's welfare the court's paramount considerations, while in New Zealand s 4 of the Care of Children Act 2004 makes the child's welfare and best interests the paramount consideration. The difficulty and complexity stems from the fact that we have to work out what that actually means in the relocation context.

In order to do that, I started by going back through the reported cases. The first, a case called Hunt v Hunt, comes from 1884, but the modern principles began to be developed by the English Court of Appeal in 1970, in a case called Poel v Poel. This case guided the courts in both England and New Zealand for many years. It was abandoned by the New Zealand courts in 1995, with their Court of Appeal decision in Stadniczenko v Stadniczenko, and was superceded in England by the 2001 Court of Appeal decision of Payne v Payne. In Chapter 2 of the book, I look at these shifting patterns in the case law, and at how the legal principles evolved and were interpreted and re-interpreted over the years.

But cases in appeal courts and in the official law reports can only tell you so much. I wanted to know what was really happening on the ground, and how those professionals who have to use the law in their work saw it. So I set off and interviewed trial judges, barristers, solicitors and welfare advisers who were experienced in relocation cases in both England and New Zealand. The views and experiences of the 44 men and women who talked to me as part of that study form the core of this book.

Chapter 3 contains the real comparison between the two jurisdictions and their quite different ideas about what 'welfare' means in the relocation context. I gave all my participants three identical case studies about different types of relocation disputes and asked them to tell me what factors they thought would be important in coming to a decision, and what the likely outcome would be if the case went to court. The enormous variation in the approaches of participants in the two jurisdictions was amazing, and the 'classic relocation case', involving a hypothetical child called Tom whose mother wanted to move to America with her new American husband, was the one that showed up the differences in approach most starkly.

From there, I focus in on the two jurisdictions in turn, asking practitioners to talk about their general experiences of relocation law and to evaluate the positive and negative aspects of their system. These discussions reveal a wealth of information about the practical working of the law, and about lessons that can be learnt both in terms of working well within the existing law and in terms of possible law reform.

Reform of the law is indeed the focus of the final chapter of the book. Relocation is one of the most controversial areas of family law, and in many jurisdictions around the world there is discussion about whether they can be dealt with better. I review a number of possible suggestions that have been put forward, and end with a discussion of an idea of mine which comes out the study.

Obviously I can't tell you if it's any good, but Mr Justice Peter Jackson of the High Court in London says in a review for the cover that the book "holds up a mirror to what we do in relocation cases, and draws a map of where we might want to go. More than that, we see how lawyers and judges think about hard decisions, and how studies of this kind can help us think more clearly."

--
Relocation Disputes: Law and Practice 
in England and New Zealand is published 
by Hart Publishing on 17 December 2013.

Corporate Veils and Gender Wars - A Reply to Richard Todd QC

In the August issue of Family Law, I wrote a short article about the Supreme Court ruling in Prest v Petrodel [2013] UKSC 34. That article was, in turn, a slightly expanded a more 'academic' version of my post on this blog about the ruling. Petrodel, for those who don't know, was a matrimonial finance dispute. The massively wealthy husband held a large part of his wealth in a number of companies entirely owned by him. During the marriage, he used these companies to provide a lavish lifestyle for himself and his family, yet somehow once divorce proceedings began he found himself unable to access any funds and unwilling to disclose large swathes of relevant information to enable the family court to assess the extent of his wealth and make a fair award to the wife. So far, so fairly unexceptional as big money divorce cases go. The cases ended up in the Supreme Court on the question of whether the family court is entitled to 'pierce the corporate veil' to gain access to assets held by the companies in order to transfer them to the wife.

As with my blog post, the article in Family Law gave a summary of the decision, and then moved on to discuss some of the possible bigger questions arising from the judgment. In particular, since there was something of a dispute between the way that family lawyers and company lawyers saw the issues in the case, I said this:

'...two aspects [of the case] combined to give the initial impression that family law might have won the day. However, it seems more like a case where Mrs Prest won her battle but family law lost the war.' 

As I went on to say, the main way in which the case marks a 'loss' for family law is that one of the tools that had been used to ensure that family financial arrangements were fair after divorce was lost - the family court can no longer get at assets that are held by companies when one of the spouses has complete control of that company.

Anyway, I don't want to re-hash that argument here. My reason for coming back to the matter is that Richard Todd QC, who acted for the wife in the Supreme Court, wrote a short piece for Sweet&Maxwell explaining why my Family Law article was wrong about this, and I thought that it was interesting. (Also, what better way to tempt a response than with the sweet words 'Rob George is wrong'? No seriously, it's interesting, and flattering that someone as senior as Richard Todd QC spent time thinking about my article and replying to it.)

So first a quibble. Richard Todd has a dig at me for saying - in his words - that 'Mrs Prest (probably) won her battle' because, as he says, 'there is no "probably" about it'. Well, I agree, which is why I never said probably - I said she won. I quoted a cautionary point from Lady Hale's judgment about whether there might be difficulties ahead still in realising those assets (Todd says not, which is good news), but there wasn't any doubt that she won. The question for me is whether the way in which the Supreme Court reached that conclusion might be less useful for wives in future cases. The only place I can see that I can be mistaken for saying 'probably' is in the sentence quoted above, but as a matter of construction (!) I think that it's reasonably plain that I am contrasting my conclusion (she won but family law lost) with the initial impression given in the preceding sentence (family law won).

Anyway, that's by the by. A much more interesting point, where I truly hope that I am wrong, is about whether family law did indeed lose the day. Accepting my premise that the 'war' being fought is for gender equality, Richard Todd's argument is that since the Petrodel ruling he has been contacted by 'many troubled bankers' and companies wondering how secure their financial position is, but not one wife has been in touch to ask the equivalent questions. He goes on to give three reasons why this shows that wives will be better off after the Petrodel ruling.

Would that it were so, but I'm not convinced by the 'casual and unscientific illustration' (Richard Todd QC's words). I find it entirely unsurprising that after a big money court decision affecting company assets, the companies and men who run them would go running to expert lawyers to ask about their financial position. The companies have reason to be reading law reports and the money to get legal advice, and the men are the ones who know that they are siphoning off their assets into those companies - of course they're the ones going to specialists like Richard Todd. The wives, on the other hand, are unlikely to read Supreme Court judgments about piercing the corporate veil, and if they do they are unlikely to be aware that it is an issue which affects them. Meanwhile, the men - with the advice from lawyers that we now know they are already getting - are busy using the helpful guidance from Petrodel to make sure that the assets are indeed safe behind the veil.

So yes, I hope that I'm wrong and that Petrodel is indeed 'a triumph' for family law - but I'm not holding my breath.

Relocation Research - first paper now available

In my last post, I published the Executive Summary from my new paper, "Relocation Disputes in England and Wales: First Findings from the 2012 Study". The full paper is now available to download free of charge from the Social Science Research Network.

There are two short points I'd like to make about this paper. The first is that it's a working paper. I wanted to get the first findings out as soon as they were ready because this is an important topic, but there's a lot more work to do. So while all of the statistical analysis that is reported in the paper is correct and final, the overall project isn't finished yet, and there will be more information feeding into the overall analysis and conclusions.

The second point is that this paper does not make any comment about legal policy. A lot of people dislike the English law's approach to relocation disputes and there is a respectable view that it needs to be reformed. Indeed, I have made that argument myself on this blog (see here and here), in my academic writing,* and as part of the legal team who sought to appeal a relocation case to the Supreme Court a year ago. That is an important question that needs to be addressed - but it is not the question that I am addressing in this paper. The first thing to do when considering change is to find out more about what is happening now. This paper is about that - it tells us about what the reality of relocation law is in the courts and lawyers' offices of England and Wales. We can add that information to the debate about what if any change needs to be made, but the research does not by itself answer that question. Consequently, no one should read this paper to find out what I think about law reform, but the fact that I do not talk about that in this paper does not mean that I don't have views on change.



* At the moment, a lot of academic writing is difficult for the general public to obtain. Some of my work is on the SSRN network (see here and here), though not all if it is available without charge (this is a policy of the journals, not of mine); I am happy to provide copies on request.

Relocation Disputes: First Findings from the 2012 Study: Executive Summary

This post contains the Executive Summary of a research paper from my study of relocation cases in England and Wales. The full paper is now available to download without charge from the Social Science Research Network.

  

Relocation disputes are cases between separated parents where one of them proposes to move to a new geographic location with their child and the other parent objects to the proposals. This Research Paper reports the first set of findings from a major study of relocation cases in England and Wales based on cases decided in 2012. The data used come from 118 first instance court decisions in relocation cases (96 proposed international moves and 22 proposed moves within the UK) – the CC sample – and 187 responses from family lawyers to a research questionnaire about relocation disputes –the RQ sample. We use statistical techniques to analyse those cases and investigate patterns of outcomes.

Part 1 | Relocation Law in England and Wales: A Summary

The law governing relocation disputes, while different for proposed international moves and for those proposals involving moves within the United Kingdom, is relatively straightforward and can be explained simply. The welfare of the child concerned is the paramount consideration, with guidance then offered by appellate cases as to how the child’s best interests should be ascertained by judges in international and domestic relocation cases respectively.

Part 2 | Previous Research on Relocation Disputes

The simplicity of relocation law belies the extent to which relocation disputes are immensely difficult for all those involved, whether the children, the parents, the lawyers or the judges. Previous research in England and Wales has shown that there are concerns that the law itself, although well understood, may not have struck the right balance in its pursuit of the child’s best interests. However, while this view was shared by many, others thought that the English courts had shifted their approach in the mid- to late-2000s and were now approaching relocation cases more ‘rigorously’. At the same time, researchers in other jurisdictions were investigating case outcomes and patterns of decision-making in a way that, until now, has not been possible in England and Wales because of the lack of access to the relevant materials.

Part 3 | International and Domestic Relocation Disputes: Characteristics of Cases and Families

Cases in the dataset came from all over England and Wales, but there was a clear dominance of cases coming from London and the South East of England. Cases were heard by judges at all levels, with the bulk of international cases being tried by Circuit Judges and most domestic cases going before District Judges. In both domestic and international cases, applicants were more likely than respondents to be legally represented, and those who had legal representation usually had both a solicitor and a barrister.

In both international and domestic cases, most disputes involved a single child, with an average number of children per case of 1.5. In terms of children’s ages, the mean age was around 7 (just under for international cases, just over for domestic ones). International cases more often involved pre-school aged children than did domestic disputes, but in both samples the bulk of children were aged 4 through 9; few children aged 12 or over featured in either category.

The vast majority of applications were brought by mothers (around 95%). In terms of care arrangements, a small minority of cases (around 5%) involved equal shared care arrangements, while a larger minority (7% in the CC sample, 38% in the RQ sample) involved 65/35 shared care arrangements. Conversely, in the CC sample overnight contact cases account for well over half of all cases, whereas in the RQ sample only around a quarter of cases were reported to be in this group. In both samples, a small minority of cases involved direct contact not including overnight stays or no direct contact at all.

Looking at parents’ relationships statuses, we see that parents in the international sample were more commonly married to one another previously, whereas the domestic cases involved a higher proportion of former cohabitants. In terms of each parent’s current relationship status, applicant parents are more likely to have remarried (35%, compared with 7% of respondents), whereas respondents are more likely to be in a cohabiting relationship or to be single (23% and 59% respectively, compared with 10% and 42% for applicants).

Some 70% of applicants in the international sample were foreign nationals seeking to leave the United Kingdom, most (though not all) proposing to return to their original home country. In terms of destinations for the international cases, the biggest category involved proposed moves to other EU countries (around 40%), with ‘North America’ and ‘Australia/New Zealand’ each accounting for around a quarter of cases. Domestic cases had an average travel time between the current location and the proposed destination of around 2.5 hours, though with a range from 1 hour to 11 hours.

Part 4 | International Relocation Disputes: Outcomes and Patterns

The overall success rate for litigated international relocation cases in the CC and RQ samples combined (N=141) was 66.7%. Given that English law was said to be ‘pro-relocation’, it is interesting to compare this figure with the equivalent data from Canada (68%) and New Zealand (68%), which are respectively ‘neutral’ and ‘anti-relocation’. Of course, court outcomes are not the whole story because pre-litigation advice is an important filter, but the similarity is noteworthy.

We then go on to identify factors which appear to be important in influencing case outcomes, which we divide into three broad groups. The first group relates to courts, judges and lawyers. The data suggest that courts in London and on the South East (1) Circuit are more likely to refuse relocation applications than courts elsewhere in England and Wales (around 62%, compared with 85%). There is also a difference based on the type of judge hearing the case, but the data suggest that this difference may be accounted for by case allocation: different judges hear different types of international relocation case. While most cases involved both applicants and respondents with legal representation, the data suggest that if one side does not have a lawyer then his or her chances of getting the desired outcome are substantially reduced (though this is correlation, not causation).

The second group of factors focuses on families and their biographical characteristics. In terms of children’s care arrangements, the overall picture suggested by the data is that applications where the respondent parent does not have overnight staying contact with the child are more likely to be allowed (around 75%) than cases which do involve staying contact (around 55%); but the amount of staying contact (whether amounting to shared care or not) does not make a significant difference. There is some suggestion from the data that cases involving multiple children are less likely to be allowed than cases involving a single child, but the small number of cases with several children makes it impossible to be sure of any pattern. In the international cases, the ages of the children made no apparent difference to case outcomes. In terms of the parents’ relationship statuses, we saw that the parents’ previous relationship with each other made no difference to case outcomes, and the same was true of the respondent parent’s current relationship status; but applicants who were now married had a significantly higher chance of their relocation application being approved than did applicants who were single (just over 80% for those who were married, compared with 50% for those who were single).

The third group of considerations looked at proposed destinations and the applicant parents’ motivations for seeking to relocate. The overall picture in terms of destinations seems to be that the shorter the proposed move, the more likely it is that the relocation will be allowed – so moves within the EU are allowed more often than moves to North America, which are in turn allowed more often than moves to Australia or New Zealand (in the CC data, 80%, 71% and 52% respectively). Consistently with previous research, we see that most applicants have several reasons for seeking to relocate, but we focus on four key groups: ‘going home’, ‘new job’, ‘lifestyle’ and ‘other’. The findings here are not straightforward, but the overall picture seems to be that cases involving a return home or a specific job offer have a greater than average chance of being allowed (72% and 70% respectively), while those seen as lifestyle decisions are significantly less likely to be allowed (48%). Most opposition to relocation applications was based on the child’s loss of relationship with the respondent parent; but in those cases where the respondent argued that the proposed move was poorly planned or that it was brought in bad faith, the application was less likely to be allowed (56% and 50% respectively).

Part 5 | Domestic Relocation Disputes: Outcomes and Patterns

The overall success rate for litigated domestic relocation cases in the combined sample (N=37) was 70.3%. Given that orders restricting internal relocation are thought to be unusual, it may be surprising that this figure was so similar to that for international relocation (66.7%). However, it should be remembered that many internal relocation cases will not be litigated, so the range of cases before the courts may be different in the two contexts.

Starting again with issues relating to courts, judges and lawyers, the data suggest that courts in London and on the SE-1 circuit may be more inclined to allow internal relocation applications than courts elsewhere – the reverse of the pattern seen in the international data – though this variation may be explained by case characteristics. A finding more in keeping with the international data is that District Judges seem to be more inclined to prevent domestic relocations than are Circuit Judges.

Looking at families and their biographical characteristics, similar patterns are seen as emerged from the international data. Children’s pre-relocation care arrangements appear strongly correlated with case outcome, with the proportion of relocations allowed increasing as the non-moving parent’s involvement in the child’s daily life decreases. In terms of children’s ages, cases where relocation was allowed had a lower mean age of child (7.0 years) compared with cases that were refused (8.3 years), though it is unclear why that would be the case.

Rather than proposed destinations, the focus in the domestic data is on distances of the proposed move. The data show that shorter moves (two hours or less) are less likely to be allowed than longer moves (61.1%, compared with 78.9%). Again, it is unclear why that should be the case, given that on-going contact will be easier to maintain after a shorter move. In terms of reasons for seeking or opposing domestic relocation, the data are equivocal about whether motivation makes much difference. No observed differences were close to being statistically significant, and the differences were in any case marginal.

Part 6 | Discussion and On-Going Work

The statistical data have revealed a wealth of findings, but have also raised many questions. The next stage of analysis will return to the judgments and look qualitatively at judicial reasoning. After that, the project turns to parental experiences. Parents in 30 relocation cases have been interviewed about their experiences, and those interviews will be analysed and the conclusions added to the overall project. 

A Review of a Review of Ideas and Debates in Family Law

There are many ways that one can go about reviewing academic books, but a fairly standard approach is to offer some kind of summary of the main issues or arguments that it raises and then to comment on them in some way. If a book offers an analysis which is problematic, or if it misses or mis-uses evidence, then of course it is appropriate to criticise it. It's also reasonable to point to issues that the author might have looked at but didn't, if they are relevant to the book's content. But I think it's always helpful to keep in mind the realities of how books are written, and to look at what the author says he or she is trying to do when judging whether or not they have succeeded. Also, as my doctoral supervisor once told me, always end with the most positive thing you can honestly say.

With that in mind, I've been trying to decide if it's churlish of me to want to respond to a review of my book, Ideas and Debates in Family Law, that Claire Simmonds has written in the Cambridge Law Journal. It's a compliment when anyone takes the time to read and review something that you've written, bringing their intellect and experience to bear on something you've spent time on - and there are plenty of nice things that Simmonds says, along the way, about IDFL in her review. However, a couple of things have riled me a little, so here we go.

First, the book. IDFL is a small book of about 150 pages, split into eight chapters. It evolved from a series of seminars that I've been running for the last eight years in Oxford with undergraduate family law students. It is categorically not a textbook. It doesn't contain an overview of the law, and its aim is to put forward challenging ideas that open the reader's mind to different ways of thinking about family law issues. Consequently, as I say in the introduction, 'the topics chosen for discussion are sometimes quite narrow', 'many important family law issues are not covered' and 'the topics which are covered ... could have included a number of sub-issues which are either omitted entirely, or receive only passing mention' (pp 1 and 3). In other words, with 60,000 words and the whole of family law to pick from, I deliberately chose things that I thought were interesting and that offered scope for engaging with particular issues that I had been thinking about in my research and with my students over the last few years.

Given that starting point, there are two things that irritate me about the review. One - which is relatively common thing that people do in reviews, to be fair - is that a lot of the criticism comes down to saying that had Simmonds written the book, she would have written about other things. In particular, she would have written about more things. More on the European Convention on Human Rights (ECHR), more on decisions of the European Court of Human Rights, more on the Hague Child Abduction Convention, more 'awareness' of prominent debates (?), more on public law and child abuse, more on domestic violence, more on same-sex relationships... 'as well as the existing chapters expanded'.

I mean, give me a break. You're basically saying that I should have written about the particular issues in family law that interest you, rather than the ones that interest me. Oh, and none of those issues is small, so I should also have written a book that was twice as long, which I don't think my publisher would have been too happy about.

My other niggle is about being told so many times that I have 'failed' to address issues or to notice issues. When talking about the welfare principle, Simmonds says that I don't talk about the ECHR, for example. Well, first, I do, a bit. I don't refer to the Convention by name, but my discussion on pp 117-119 is all about the inter-relationship between a welfare analysis and a rights analysis, and the way in which adults' and children's rights are, or could be, incorporated into the welfare principle. But leaving that aside, my gripe really is that, as Simmonds herself says, 'this issue has formed one of the central debates in this area in the last 15 years'. I agree, so why, in a short book which tries to look at less obvious issues, should I give space to that? Students will be getting that debate from their main readings and they don't need yet another summary of it from me.

Much the same reasoning explains my 'failure' to address various other issues. Same-sex marriage, for instance. I deal with it in a single footnote on p 75 - though, to be honest, that footnote really sums up the issue for me. There are two reasons for this 'failure'. One is that I don't actually find the debate about same-sex marriage legally interesting. It's a socio-political issue, but the legal aspects of it don't excite me much. The other, again, is that any family law student will know all the possible angles on this debate already and be seeing plenty of it in their reading.

Incidentally, this is what I mean when I say that the book should be used 'alongside a textbook' (cover blurb). Simmonds notes that family law textbooks rarely stick with black letter law these days which, she says, 'somewhat lessen[s] the impact' of IDFL as a companion book. With respect, that misses the point. I am perfectly aware that textbooks go beyond black letter law. My point is, IDFL is a companion to the modern family law textbook because, while it is true that the socio-legal sources that I draw on are commonly featured in textbooks these days, what I am doing with those materials is quite different, and the point is to let students see how we can use sources in less conventional ways.

Anyway, leaving all that aside, I'm quite willing to say that there are plenty of things that could be improved in IDFL. Nothing is perfect, and I'm open to criticism of the book, some of which has helped me develop my ideas so that if I write a second edition I already have lots of thoughts about what I'll do differently. But what I won't be doing is trying to write about everything, trying to force issues into my narrative that don't really fit there just so I can say that I've covered them, or writing massively more. That isn't what I set out to do, and it's not really a fair criticism of the book that it didn't do that.

Prest v Petrodel: Winning the Battle but Losing the War?

The Supreme Court today gave judgment in Prest v Petrodel. The case is about post-divorce financial arrangements, and asks what happens if one party has significant resources held by a company which he or she controls. The Supreme Court held that these assets should be taken into account by a family court judge when assessing the overall wealth and assets available to the couple. However, the judge is not then entitled to 'pierce the corporate veil' and order the company to discharge liabilities owed by one spouse to the other unless the company had been set up specifically to avoid those liabilities. That was not so on the facts of this case, though as it happened the properties owned by the companies in question were owned on bare trust for the husband, and therefore the court could order them transferred to the wife.

The consequence of that was that the wife won her appeal and the original order of the High Court Judge was restored (having been overturned in the Court of Appeal), but the reasons for doing so were different from those accepted by the High Court Judge. In terms of the legal principles, the Supreme Court unanimously upheld the Court of Appeal, meaning that the practice of some family courts of quietly ignoring the corporate veil must indeed now cease (as the Court of Appeal said at para 161). This seems like a case where the wife won her battle, but family law lost the war.

Piercing the Corporate Veil?

In law, an incorporated company has its own legal personality, and is a different legal actor from any individuals who are involved with it. Consequently, it can follow that the company is liable for things that it does, but the individuals within the company are not personally liable. The corporate veil refers to this divide between the company and the individuals. If the corporate veil is 'pierced', it means, basically, that this divide is ignored, such that either the company is (for example) made to discharge liabilities owed by an individual, or that an individual is (for example) made to discharge liabilities owed by the company.

As Lord Sumption says at para 16, there are many circumstances where similar things happen but which do not involve piercing the veil in the strict sense. So the controller of a company can be personally liable for its actions when acting as the company's agent or as a joint actor; and a company can be said to act on behalf of an individual, or to own property on an individual's behalf, if it acts as his nominee or trustee.

The Supreme Court judgment explains at length about the meaning of the corporate veil and the circumstances in which it may be 'pierced'. A 2009 decision by Munby J in the High Court provided a useful summary of the approach, and Lord Sumption summarised that decision at para 25:

Munby J formulated six principles ...: (i) ownership and control of a company were not enough to justify piercing the corporate veil; (ii) the court cannot pierce the corporate veil ... merely because it is thought to be necessary in the interests of justice; (iii) the corporate veil can be pierced only if there is some impropriety; (iv) the impropriety in question must ... be 'linked to the use of the company structure to avoid or conceal liability'; (v) to justift piercing the corporate veil, there must be 'both control of the company by the wrongdoer(s) and impropriety, that is (mis)use of the company by them as a device or façade to conceal their wrongdoing'; and (vi) the company may be a 'façade' even though it was not originally incorporated with any deceptive intent, provided that it is being used for the purpose of deception at the time of the relevant transaction. The court would, however, pierce the corporate veil only so far as it was necessary in order to provide a remedy for the particular wrong which those controlling the company had done.

For Lord Sumption, the 'wrongdoing' in question needed to relate to an attempt to evade liability; in other words, that the company was being interposed in an attempt to protect the individual who controlled the company from having to discharge existing liabilities that he owed. (It may be noted that a majority of the Justices (Lady Hale, Lord Wilson, Lord Mance and Lord Clarke; see paras 92, 100 and 103) were cautious about being too firm in saying that this was the only route to piercing the veil.) That would apply to matrimonial proceedings if, for example, during the breakdown of the parties' relationship, the husband set up companies and moved his assets into them. However, it did not apply to Prest because the companies were genuine and had been up and running for years before the parties' marriage broke down.

Matrimonial Proceedings

The big question underlying the Prest appeal was whether proceedings for financial orders following divorce, governed by the Matrimonial Causes Act 1973, fell outside this general approach or not. In other words, was a judge in the family court entitled to pierce the corporate veil in circumstances that fell outside the general rule?

The clear answer from a unanimous Supreme Court was: no. The MCA allows the court to redistribute any property to which a party is 'entitled'. The whole point of the corporate structure is that the individual is not 'entitled' to the assets within it; they are owned by the company. If the company has been set up as a sham, or the assets have been placed in it intentionally to attempt to avoid liability under the MCA, then normal principles would allow the corporate veil to be pierced. But if, as in Prest, the family has simply arranged their finances in whole or in part using company structures, then the MCA does not offer any way to access those assets.

That does not mean that such assets are ignored by the family court. Quite the contrary: by s 25(2)(a) the court is required to have regard to the 'income, earning capacity property and other financial resources' of each spouse. Consequently, the family judge is entitled to make enquiries into assets held in companies when assessing what the overall wealth of the family before the court is, and thereafter to take into account the existence of such assets when deciding what would be a 'fair' distribution of the parties' resources.

However, if the assets are held by a company then, in the normal run of things, those assets themselves cannot be interfered with by the court. The court will have to use its powers to make orders that achieve 'fairness' as best it can without interfering with that property itself. So it can make orders that affect other property; and it can make on-going maintenance orders that rely, for example, on the husband receiving dividends from his companies in order that he can meet the maintenance requirements to his former wife; and in some cases it could order that shares in the company be transferred to the wife. But property owned by the company itself cannot be interfered with by the family court.

Discussion

The wife in Prest won her appeal, in the sense that the original order in her favour (that certain UK properties be transferred to her name) was restored by the Supreme Court. Looking at the bigger picture, though, the reasoning of the Supreme Court leads to the implication that many similar cases will not end up the same way.

The wife in Prest was able to succeed because the Supreme Court was satisfied that the companies actually held the properties on trust for the husband as bare trustees. The properties had in fact been bought by the companies with the husband's money (rather than with money in the companies), and ordinary trust law principles say that if X buys property with Y's money then, absent other information, X will be held to be a trustee of that property, holding it for Y. With such a straightforward trust (called a bare trust) the beneficiary (the husband) is absolutely entitled to end the trust at any time and take the property for himself. He is therefore 'entitled' to it in the MCA sense of the word, and so the properties were available to be transferred to the wife.

Lord Sumption cautions against making general statements of principle in the application of this doctrine, but nonetheless suggests that as regards the matrimonial home 'the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company' (para 52). That may be so, but it would be overly optimistic to think that this assumption will be of any great help in achieving results which are 'fair' overall.

Of course, the family home is an important asset for most families; but for those with the kind of wealth to be making use of corporate structures for 'wealth management', the home is likely a drop in the ocean. If this is the only asset that, in practice, is available for the family court to transfer to divorcing wives, the overall effect will indeed by, as Thorpe LJ said in the Court of Appeal, to give 'an open road and a fast car' to the spouse attempting to keep assets out of the hands of his former spouse.

Prest therefore leads us to a good result on its facts (though note Lady Hale's caution about whether the wife might still be getting a raw deal: para 96), but it is hard to be overly optimistic about future cases ending up the same way.

Wardship in the Family Courts

This post looks at the court's powers to make children wards of court, and at a recent example of how those powers can be misunderstood.


A Brief History of Wardship

Wardship. What's it all about? The history is long, but in short wardship is the result of the court's exercise of its inherent jurisdiction (exercising the powers of the Sovereign as parens patriae) to act to protect vulnerable citizens, normally meaning children, by taking direct control over the administration of the person's affairs.

That sounds pretty serious, and it is. Historically, the main reason for making a child a ward of the court was in the event that he or she had been orphaned and there was substantial property or other wealth to administer. In 1857, this power was extended by statute to cover children affected by divorce, though the connection between wardship and wealth remained.

As time passed, the emphasis shifted increasingly towards welfare and the protection generally of the child's interests in various ways. This power was not always exercised benevolently by those applying to have the child made a ward. The primary effect of wardship was to stop any significant decision about the child's upbringing being made without the court's permission, and parents started drawing on this power to control their (nearly adult) children. In particular, it was not unheard of for a parent to have their child made a ward of court in order to stop him or, more commonly, her from marrying against the parent's wishes. (The court's jurisdiction ran until the child's majority, then aged 21.)

The pattern of cases changed in the mid to late twentieth century, with wardship increasingly used by local authorities as a means of protecting children from abuse and neglect. By the time that the Children Act 1989 entered force, more than half of all wardship applications were being brought by local authorities for this purpose. One criticism of the pre-Children Act approach was that it created a two-tier system of child protection: the 'Rolls Royce' wardship system for the wealthy, and the normal system for the rest. In particular, since orders in wardship are available only from judges of the High Court (or those county court judges with the same powers), it was rather harder to get a child made a ward of court outside London than it was for those with ready access to the Royal Courts of Justice.

Wardship After 1989

One major effect of the 1989 Act was to place major limitations on the power of local authorities to use wardship in this way (see section 100). For all its express and implied limitations, though, the Children Act did not abolish wardship, either for child protection matters or in disputes between parents about their child's upbringing. Nonetheless, the Court of Appeal noted in 1991 that judges should 'permit recourse to wardship only when it becomes apparent that the child's welfare demands it and there is no other available remedy'.

So in practice, what are the on-going uses of wardship? Nigel Lowe points to uses both by local authorities in (quasi-) child protection proceedings and by parents and others concerned about children's upbringing.

As to local authorities, while the Children Act prevents them from applying for wardship when what they want is a care order taking the child into their care, they can use the jurisdiction for other purposes. There are examples of wardship being used to protect children who are in voluntary local authority care (where no care order is needed), and cases where wardship has been used to help get a child returned to the UK after removal abroad.

Indeed, this latter example is, I think, the most common use of wardship now - either a child has been unlawfully removed from the jurisdiction or he or she has been unlawfully retained abroad following what was, initially, a lawful visit. In many cases, wardship is not needed because the law has other remedies under international conventions - but when the child is in a country which does not ascribe to such a Convention, wardship can be a potent tool for persuading foreign courts to return the child. Similarly, children are sometimes made wards of court as pre-emptive protective measures where a parent or other family member proposes to take them on a temporary visit abroad, as a means of trying to ensure that the children are returned promptly as agreed.

Recent Oddities

So why am I writing about this now? Well, twice in the last few months I have been told by barrister colleagues rather surprising stories about recent uses of wardship. One was a passing story about an order in wardship being made by a District Judge, which seems rather surprising since there is no power whatever for a DJ to exercise the powers of the High Court. The other I was told by someone at the Family Law Bar Association conference this last weekend. This second case was quite complex. I should say that I report it here as I was told it by one of the barristers involved (subject to certain changes to ensure anonymity) and I have no independent verification of these events. Nonetheless, the case may be of interest.

The child was the subject of investigation by the local authority because of concerns about his well-being with his parents. At the first hearing, the county court judge announced that he was 'deeming' the local authority to have applied for an order in wardship for the child (though they had done no such thing) and then made the order accordingly. Since the local authority was in the process of starting proceedings for a care order, this order was in direct breach of s 100 of the Children Act. What's more, since the judge was not sitting as a judge of the High Court, he had no power in any event to make such an order.

The story continues, however. At a subsequent hearing, it was reported to the judge that the child had already, before the first hearing, been unlawfully removed from the UK to India (which is not a signatory of the relevant international conventions). Ordinarily, this might therefore have been a good time to use wardship, as a means of trying to get the child back. However, that was not how matters proceeded. On learning that the child had not been in the country when the original purported wardship order had been made, the judge held that he had had no power to make it in the first place, declared that there was nothing more to be done, and dismissed the case.

Well, it is sort of true that the judge had not had the power to make the original order, but the reason was nothing to do with the child's absence from the jurisdiction. One of the advantages of wardship is, indeed, that it does not rely on the physical presence of the child for it to be invoked - if it did, it would be a fairly useless anti-abduction measure! So the fact that the child was gone was, in fact, all the more reason to need an order in wardship. So what we have here is a screw up at two stages - first as to the making of the order in completely inappropriate circumstances, and then as to its discharge once it became apparent that it was actually needed! Oh dear.

Perhaps time for some refresher courses on wardship...


--
I draw in this post on Stephen Cretney's book Family Law in the Twentieth Century: A History (OUP, 2005) pp 583-592 and Nigel Lowe's chapter Inherently Disposed to Protect Children: The Continuing Role of Wardship in R Probert and C Barton (eds) Fifty Years in Family Law (Intersentia, 2012).

Relocation Research - First Update

My research project looking at relocation disputes in England and Wales is now well underway. I wrote about this work on the blog briefly early last year, and this seems like a good time for an update.

The work has three distinct strands. Collection of data for the first two strands is now complete, and analysis of the findings is underway. The third strand, which involves interviewing parents who have been involved in relocation disputes which were resolved within the last 9 months, is running for a couple more months.


Interviews with parents: on-going work

So far we have done about 20 interviews with parents. The stories are very varied, of course, but the one commonality that comes through is just how painful relocation cases are, whichever position the parent is in. Even the parents who 'win' their cases - fathers who successfully prevent a relocation or mothers who are allowed to move - find the process traumatic and difficult. For those who 'lose', the position is even worse.

We are keen to increase the number of stories that we have for the study, so that we can get the fullest picture possible of what the experience is like for parents. If you are a parent who was involved in a relocation case (international or internal, and whether the relocation was allowed or refused) that was resolved in the last 9 months and you are interested in being interviewed about the experience, please do get in touch. Similarly, if you are a family lawyer who has a current or former client who might be interested, please contact us. There is an information leaflet available here.


Court cases and questionnaires: completed work

The other two strands of the work were conducted in 2012, and the analysis of the findings is now underway. The first strand involved collecting from courts as many relocation cases as possible over the year. For international relocation disputes, 95 cases were collected in this way; for internal relocation, 22 cases were submitted. This disparity might be explained in three ways.

First, when people think about 'relocation' they usually think international. The project relied on judges and lawyers submitting material to be studied, and they may have focused on their international cases. Second, internal relocation cases tend to be heard by District Judges in the County Courts, whereas international relocation cases usually go to Circuit Judges or High Court Judges. The sheer number of DJs makes it harder to contact them and they have a very high turnover of cases, so getting material from them may be more challenging. Third, there may actually be more international relocation cases that reach the courts than there are internal cases. The reason for that would likely be that parents are more able to negotiate the outcome when an internal relocation is proposed, whereas international cases are very difficult to agree.

The other strand of this research involved a questionnaire for family lawyers. The questionnaire was sent out both electronically and in paper copy, delivered at conferences and seminars and by direct mail to solicitors and barristers around England and Wales. 187 usable responses were received. Some of the questions were evaluative, but most asked the lawyers to give detailed information about their most recent relocation case. The aim was to be able to compare the cases reported by lawyers with the cases collected from the courts.

The analysis of these findings is now underway. There is a lot of work to do, but one or two initial findings can be shared here. First, looking at international relocation cases in 2012 (so, 95 court cases and 84 of the 187 questionnaire responses), one question is: what do we mean by international? Where are people proposing to go?

Graph 1 shows that there are three dominant destinations: countries within the EU, the USA and Canada, and Australia and New Zealand. That is probably not that surprising. International relocation cases arise for a number of reasons, but 'going home' (for the parent or a new partner) and 'new start' are both common reasons, and the links between Britain and other EU countries on the one hand, and with English-speaking developed countries on the other, makes these proposed destinations unsurprising.

Another question might be to ask how old the children are who are involved in these cases. On average, each case has 1.5 children, and Graph 2 shows the distribution of their ages. While there is clearly a little bit of variation between the court case sample and the questionnaire sample, overall the message from the two seems to be the same. There is a small peak of children just before school age, and then a main peak around 7 or 8. The drop-off of children aged 12+ is unsurprising, and is probably explained by the increasing

importance the the wishes and feelings of children as they start to get into adolescence and, in the relocation context especially, start to be able to understand the consequences of the decisions being taken a little more clearly.

 

These are obviously fairly basic bits of information. The work that we are doing at the moment is asking about much more involved questions, mainly trying to see what the data can tell us about which factors do and do not help to predict the outcomes of cases. We are not ready to make those findings public just yet, but it does look like there are some exciting results to come. Factors like (i) the child's previous care arrangements, (ii) the reason for the proposed relocation, (iii) the possibilities for maintaining a good relationship with the non-moving parent if the relocation is allowed, and even (iv) the type of judge and the location of the court are being considered, and we hope that this analysis will allow us to give useful pointers in future.

 

 

Rob George is lead author, with Frances Judd QC,

Damian Garrido and Anna Worwood, of "Relocation:

A Practical Guide", a practical handbook for lawyers

and parents who are involved with relocation cases,

to be published by Family Law in early June 2013.