Payne v Payne - The Long Goodbye Continues

As someone whose life is unduly preoccupied with thinking about relocation law, I find it fascinating that the English courts cannot bring themselves to say, in straightforward terms, what we on the sidelines have known for so long - Payne v Payne has had its day.

For anyone not familiar with Payne, it's a 2001 Court of Appeal decision which places considerable focus on the fact that the applicant was the mother, and that she was the child's primary carer. Looking back over the earlier authorities, those facts were almost always true, and so it is perhaps unsurprising that the court's guidance about how to approach such cases in the future took this as being inevitable.

In the 15 years since the case was decided, much has changed, and the reality is that there is a far greater range of post-separation care arrangements on the ground now than there was when Payne was decided. Consequently, when thinking about a question as important as whether a child should be taken to live in another country or not, the relevant considerations are now also more varied, and - crucially - the guidance stemming from Payne may or may not be especially helpful.

The Court of Appeal said as much in the 2011 decision of K v K, but the majority judges (Black and Moore-Bick LJJ) were clearly of the view that the answer did not involve abandoning Payne. On the contrary, Black LJ stressed that Payne remained helpful, but that judges were required to use it as general guidance, not as a straitjacket - the weight given to its various factors would be varied depending on the facts of the particular case being decided.

I have long been sceptical of this approach. In an article published last autumn, Edward Devereux and I suggested that it was unrealistic to expect judges to make these kinds of adjustments on a case-by-case basis, when the guidance that they were being asked to adjust started from such a one-sided position.

And so it has come to pass. The latest Court of Appeal decision on international relocaiton - Re F (International Relocation Cases) - over-turns an experienced Circuit Judge's decision because she focused too much on the Payne criteria and not enough on an overall assessment of welfare. Well, don't say you weren't warned.

In its latest comments on Payne, the Court of Appeal has reached new extremes of contortion. We are told that "it would seem odd indeed for this court to use guidance which, out of the context which was intended, is redolent with gender based assumptions as to the role and relationships of parents with a child" (para 18). We are told that the questions asked by Payne "may or may not be relevant" (para 18). We are told that "[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law" (para 27).

Payne is also criticised for its lack of focus on the child's views about the decision or, putting it more broadly, its lack of consideration of how the child should participate (paras 18 and 40). It is also impliedly criticised for its focus only on the proposals of the parent seeking to relocate, since in Re F the court emphasises the need to look holistically at the available options from a welfare perspective, and not to approach the options in a linear manner.

So all around, this seems to me to lead to the obvious conclusion that Payne is no longer a useful authority. So why won't they just say so? Let's put poor Payne out of its misery and start again with some sensible guidance which can be applied to all relocation cases without confusing hard-pressed trial judges and requiring unnecessary appeals.

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. 

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[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. 

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: 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. 

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...


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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).

When Is a Judge Allowed to Change Her Mind?

In two days, the UK Supreme Court will hear an appeal to determine what seems to be a fairly fundamental question: if a case has several stages, and the judge gives a judgment about part of it before the whole thing is finished (which is very common), is the judge entitled to change her mind about that first part before she concludes the rest of the case?

The trial judgment

That is essentially what her Honour Judge Penna purported to do in the case under appeal. Put at its most basic, what happened was this. The Judge was trying a child abuse case in the family court, and was asked to decide

   i) whether the child had been abused

   ii) if so, by whom, and
  
   iii) what the consequences should be, in particular in terms of the child being taken into care

It is reasonably standard for the first two of those questions to be dealt with at one hearing, and for the final question to be postponed till later. So at the conclusion of the first hearing, Judge Penna gave a short judgment in which she concluded that the child had been abused, and that the father was the person responsible.

Various consequential orders followed from this judgment, though through administrative oversight the order was not sealed for some months and therefore technically had no effect. One of those orders was that a perfected judgment would be distributed in advance of the next hearing, which indeed it was - and this is where the legal interest in this case begins.

Judge Penna's judgment, as distributed, said that she had "reconsidered the matter carefully" and now thought that it was not possible to be sure that the father was the perpetrator. Rather, the Judge said, it was either the father or the mother (or both). In itself, that is a perfectly normal finding in this kind of case - there is often inadequate evidence to pin down which of two parents cause the abuse. The question is whether the Judge was entitled to change her mind at this stage, and to bring the mother into the frame once she had already given judgment pinning blame solely on the father.

The Court of Appeal

Unsurprisingly, the mother appealed against this decision. The Court of Appeal judgments, given by Thorpe, Rimer and Sedley LJJ, highlight just what a difficult case this is.

Variations on this question have arisen before. For example, it is well established that when a judge distributes a draft judgment, she is entitled to amend and correct it at any time, whether at the request of one of the parties or not, up until the final order is made which gives effect to that judgment (see, for example, Arden LJ in Re T [2001] EWCA Civ 1736, para 50). Moreover, it seems clear that when a family court case is split into several stages, as this one was, those stages need to be seen as part of the same case, and therefore that 'the final order' is the one made at the conclusion of the entire process, not the consequential orders made along the way at the end of each stage (see Munby LJ in Re A and L [2011] EWCA Civ 1205, para 21).

So what of Judge Penna's approach? In Thorpe LJ's view, while the judge technically had the power to change her mind, she should not have done so unless there had been "interim developments [which were] substantial, if not fundamental" to justify her changing her mind (para 44). Agreeing with this point, Sedley LJ put the matter in this way:

"Between [the first hearing and the second], when she reversed her own decision, nothing had changed except the judge's mind. ... But this by itself is not an objective reason why [the] original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge's mind – to justify reversal of a judgment. (para 79)

Lord Justice Rimer disagreed. He recognised that it would be an exceptional course of action and that a judge did not have "a general licence ... to change his mind as to the fact finding decisions that he has earlier made" (para 68). Indeed, his Lordship thought that at trial judge:

will only have legitimate occasion to exercise [the right to revisit his findings of fact] in the light of a material change of circumstances justifying it, in particular the emergence of new evidence. A judicial change of mind following the renewed consideration of a decision already made would not ordinarily be regarded as the type of circumstance in which it would be open to the judge to make fresh findings. (para 68)

However, in this case Rimer LJ thought that Judge Penna was entitled to change her mind: "She was thereby honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part" (para 71). While matters had moved on in consequence of her initial judgment, no party had materially changed their position, and no party was affected in a way that they would not have been had the judge originally reached what turned out to be her final conclusion. Moreover, the Judge could not reasonably have continued with the case "were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong" (para 71).

Rimer LJ went on to criticise the approach of the majority in the Court of Appeal as based on "little more than an appeal to procedural discipline" which ran contrary to the court's obligation to promote the best interests of the child.

To require the judge, or any other judge, to conduct the welfare proceedings on the basis of a false substratum of fact is to require the judge to shut his eyes to the realities and to embrace a fiction. (para 71)

Discussion

The tension at the heart of this case is extraordinary. On the one hand, the idea that a judgment given on one day can be fundamentally altered the next for no externally apparent reason is unpalatable. It is also important to understand that "procedural discipline" exists for a reason, namely that process is as important to the rule of law and the provision of justice as outcome.

On the other hand, Rimer LJ's point about deciding the future welfare of a child based on what is now believed by the decision-maker to be an erroneous basis can hardly promote the child's interests. In this case, it made little difference because the mother's mental health difficulties meant that the grandparents were to be the main carers of the child. But in another case, a finding of fact that it was Parent A and not Parent B - rather than a finding that it was either Parent A or Parent B - who abused the child could well result in the child being left in Parent B's care. If the Judge has, meanwhile, come to think that, on reflection, it really might have been Parent B who was the abuser, how could the Judge in good conscience allow that outcome?

I do not envy those who must make the decision as to which of these approaches has the better of it, but my inclination is to think that Rimer LJ is right, and that the Judge was not only entitled to change her mind, but in fact required to do so, once she came to the conclusion that her initial judgment was wrong. But what will the Supreme Court say?

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UPDATE, 21.1.13:  At the conclusion of the Supreme Court hearing today, the Justices announced that the appeal would be allowed, and the revised judgment of HHJ Penna should be used as the basis for the case going forward. Judgment will follow at a later date.

Right thinking, wrong result? Commentary on Re F (Child: International Relocation)

On 24 October 2012, the Court of Appeal gave judgment in Re F (Child: International Relocation) [2012] EWCA Civ 1364. This post argues that although some of the points made by Lord Justice Munby in his judgment are sensible and welcome, the outcome of the case is wrong and it is unfortunate that the Court of Appeal did not allow the father's appeal.



On 3 October, I attended a Court of Appeal hearing in London as an observer in the public gallery. Before the case started, I had had chance to read the decision that was being appealed,* and had spoken to the mother's barrister and to the father himself (he did not have lawyers for the appeal). It was easy to see why the father was appealing the decision, and I thought that he had an excellent case. It was somewhat surprising to find that he had lost his case, and I comment here on some aspects of that decision now that the judgment has been published.

The Facts:

The facts, very briefly, were these. The parents moved together from Spain to England in August 2009 when the father was offered a position here by his employer. The initial two-year posting was extended by another two years in May 2011, but the parents' relationship ended very shortly thereafter. The mother then returned to Spain, leaving the six-year-old child, whom I will call Pepe (not his real name), in the father's care. The mother initiated proceedings under the Hague Convention on child abduction which, quite properly, were dismissed by the High Court in London on the basis that Pepe was now "habitually resident" in the UK, and could therefore not be "returned" to Spain since his home was here. So the case became a relocation case - both parents sought to be Pepe's main carer, and the mother sought permission to take him to live with her in Spain.

The case came before His Honour Judge Marston for a three-day hearing. By now it was agreed that the mother had historically been Pepe's main carer, but that for nearly a year the father had been the main carer. There was no dispute that both parents were good parents, and that Pepe would be happy and well cared for with either of them as his main carer.

The decision being appealed:

The Judge looked at the existing authorities on relocation disputes, particularly the cases of Payne v Payne [2001] EWCA Civ 166 and K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793. Put simply, the former sets out guidance about how to approach relocation applications when the applicant is the primary carer of the child, and the latter applies when there is a relatively equal shared care arrangement - but both of them, at the end of the day, are guidance about how to work out which outcome will be best for the child.

The Judge's decision was that Pepe should move with his mother. The judgment was described in the Court of Appeal as "clear and careful in both its structure and its content" (para 12). The Judge said that there was at present not a shared care arrangement, since the father was clearly the primary carer - consequently, he said, "That seems to me to entitle me to look at the Payne guidelines and I make the following findings on them" (quoted at para 14). The Judge later remarked that "What I have in the circumstances if I apply Payne is a very well balanced case" (quoted at para 17). However, when considering all the questions asked by Payne and by the welfare checklist in the Children Act 1989, the Judge concluded that the mother should be given permission to move with Pepe.

The appeal:

The basis of the father's appeal can be explained very briefly. His argument was that the Judge had erred in looking at the Payne guidelines in this case because that case applies only where the applicant is identified as the child's primary carer. In this case, the Judge had clearly said that the father (the respondent to the application) was the primary carer. Consequently, the Judge had effectively had in mind the wrong questions when considering the application. In the father's submission, the case should have been seen as an application by the mother to transfer Pepe's main residence from the father to her. Cases cited by the father, such as Re B (A Child) [2009] UKSC 5, support his claim that such an application would have faced significant difficulties given that his care of Pepe was recognised as being good.

The mother's case was equally straightforward. Her barrister's argument was simply that, at the end of the day, the Judge was making an overall assessment of Pepe's welfare. The Judge had indeed looked at Payne, but also at various other matters; and in any case, he had not rigidly applied the Payne guidelines, but had simply used them amongst other things to inform his overall assessment.

The Court of Appeal essentially accepted the mother's arguments and rejected the appeal. The court found that "there was no error of law":

"Although this was not a case where the application was being made by the primary carer, Judge Marston was, for the reasons I have given, entitled to have regard to Thorpe LJ's 'discipline' as set out in Payne at paragraph [40]. He correctly appreciated that the case had to be decided by reference to [Pepe]'s best interests. And, at the end of the day, that is precisely what Judge Marston did.

"He carefully took into account [Pepe]’s current circumstances in this country, the quality of his father's care of him and the father’s own plans, wishes and feelings. There is nothing which begins to suggest that he started off with any presumption in favour of the mother's claim. And if the complaint is that he did not recognise the presumptive weight of the father's claim, the short answer ... is that he would have erred in law had he done so.

"A reading of his judgment demonstrates that Judge Marston took into account and gave appropriate weight to each of the factors to which the father has drawn attention. He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo." (paras 49-51)
 

Discussion:

Some things said in Munby LJ's judgment are welcome and helpful. One is the important 'Postscript' to the judgment (though why it should be a postscript rather than part of the judgment itself is unclear) addressing the risks that arise when the law has, or appears to have, different 'categories' of relocation cases. Here, the categories being discussed are "primary carer" (Payne) and "shared care" (K v K) - but, as Munby LJ rightly says, Pepe's case "did not fall comfortably within the existing taxonomy" (para 60). The lesson to learn from this, said Munby LJ, was that advocates and judges should avoid undue categorisation of cases, where such an approach would distract from the focus on the child's welfare:

"The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a 'Payne type case', or a 'K v K type case' or a 'Re Y type case', when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided." (para 60)

In my forthcoming book which will shortly go to press on relocation disputes, I deal with this point more fully when I argue that there should be a single set of guidance in relocation cases which is flexible enough that it can be applied to all cases, regardless of their factual variations. If there is any difference of approach, actual or perceived, based on the existing care arrangements, then there is no way to avoid judges being asked to decide whether this is a case of Type X or Type Y, and those questions are, as Munby LJ says, likely to be unhelpful as well as often unanswerable.

At the moment, though, despite what Munby LJ says, I think that this satellite litigation is unavoidable because, again contrary to Munby LJ's view, I believe that there are two separate sets of guidance applicable to relocation cases, depending on the existing care arrangements. In K v K, Lady Justice Black sought to avoid this split by saying simply that the Payne questions should be asked in a shared care case, but with a recognition that the facts of the case would make some of the assessments called for by Payne less relevant. Having a single approach, whatever the detail may be, is a laudable aim; but as I explained in detail in my article on this subject in [2012] Child and Family Law Quarterly 110, there is binding authority which prevents this at the moment.

The case of Re C and M (Children) [1999] EWCA Civ 2039, although never reported, is binding on the Court of Appeal, and makes clear that the approach applied in the cases which preceded Payne do not apply to a shared care case. So while I strongly agree that it would be better if we adopted a single analytical framework for all relocation disputes, I am unable to accept that this position can be achieved simply by quietly ignoring the authorities which established the split approach. The existence of Re C and M makes it irrelevant whether or not Munby LJ is right to interpret Moore-Bick LJ as agreeing with Black LJ in K v K , and therefore to say that their broad interpretation of Payne as representing a single approach to relocation is "the majority" and "the correct approach" (para 43 of Re F). For what it is worth, though, I find Munby LJ's reasoning on this point ambitious.

Finally, but importantly, I want to say why I think that both Judge Marston and Munby LJ were wrong in their assessments of this case, and therefore why the father should have succeeded in resisting the relocation application. This was a case where the father had demonstrated beyond any doubt that he could care well for Pepe as the main carer. The fact that, as Lord Justice Ward said when giving the father permission to appeal, "the judge seems to have treated the mother as the primary carer" (quoted at para 23) is an impression which I find it impossible to escape.

Judge Marston "looked at ... Thorpe LJ's discipline as set out in Payne at para [40]", then the welfare checklist from the Children Act, and then an overall welfare assessment (para 48). Munby LJ seeks to support Judge Marston by pointing out that he did not refer to other parts of Payne or to the earlier case of Poel v Poel [1970] 1 WLR 1469 - but that is no answer to the father's case. The guidance in Payne, set out in para 40 of that case and methodically applied by Judge Marston in Re F, has as its essential underpinning the fact that the applicant is the primary carer. Indeed, Thorpe LJ himself made this point clearly in K v K (para 41) in 2011: "I am in no doubt at all that the guidance in Payne is posited on the premise that the applicant is the primary carer. It so states in terms."

Given this, Judge Marston was in error when he asked himself the questions set out in para 40 of Payne, and it is impossible to say that having asked himself those questions he then made a legitimate balance of all the factors relevant to Pepe's welfare. It is not enough for a judge to say that he is making a decision based on welfare if he has asked himself the wrong questions when considering which factors are relevant to that welfare determination.

This is an unusual case, as relocation disputes go. In fact, it would probably have been better approached as an application for a transfer of Pepe's primary residence, followed by an application for relocation if the mother's residence application were successful. With that approach, I find it hard to believe that the mother would have been allowed to move the child. The Supreme Court has previously made clear that the disruption involved in a transfer of residence may be (though will not always be) a crucial factor in such a case:

"Transfer of [the child's] residence would involve a great deal more than a change of address. Many of the familiar aspects of his life which anchor his stability and sense of security would be changed. The justices were therefore right to give significant weight to the desirability of preserving the status quo. This is a factor which will not always command the importance that must be attached to it in the present case but we are satisfied that it was of considerable significance in the debate as to where this child's best interests lay." (Re B (A Child) [2009] UKSC 5, para 42)

In this case, that transfer of residence meant not only moving away from the good care being provided by the primary carer father; it also meant a change of country (albeit back to Spain where Pepe had lived until age 4, and where he had his extended family on both sides), change of school, change of language. Was that in his best interests? Well, maybe - but since the judge did not ask himself those questions, we can't know what the answer would have been. My instinctive reaction is to think that allowing the mother to move the child in this way was probably not the right answer.

Moreover, though, this case has an unpleasant smack of sexism. The primary carer father in this case might be forgiven for thinking that he got a rather harder ride than would a primary carer mother in a case where the father was seeking to move the child abroad.



-----
* During 2012, I am collecting all first instance judgments and orders made in relocation cases in England and Wales. This case had been submitted to me as part of that research. More information about the project is available on my Faculty webpage. Nothing in this post reveals anything that is not publicly available in the Court of Appeal judgment.

"Looking to the 22nd Century" - Munby LJ's Vision of Child Welfare

It is hard not to describe Munby LJ's judgment in Re G (Children)[2012] EWCA Civ 1233 (4 October 2012) as extraordinary. The facts of the case, while interesting and important, are not my focus here. They had to do with the religious upbringing and education of five children of an ultra orthodox Jewish family, but in determining those issues the Court of Appeal grappled with fundamental questions about the welfare principle. This post looks at that discussion.

Understanding Welfare

Munby LJ starts his broad discussion of welfare by noting that the word can be considered synonymous with 'well-being' and 'interests', as per the House of Lords decision in Re B (A Minor) (Wardship: Sterilisation) [1988] AC 199. From the start, the Judge's comments indicate the immense scope of his understanding of welfare, since he says that the concept "extends to and embraces everything that relates to the child's development as a human being and to the child's present and future life as a human being" (para 26).

In case the enormity of that task were not clear, Munby LJ emphasises that "with modern life expectancy a judge dealing with a young child today may be looking to the 22nd century" (para 26). One has to feel some sympathy for the District Judge trying to get through 20 cases a day, finding that she may now have to consider the implications of each case over the next century, depending, as always, "upon the context and the nature of the issue" (para 26).

The Judge then expands upon the range of considerations relevant to the welfare evaluation:

"Evaluating a child's best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child's welfare and happiness or relates to the child's development and present and future life as a human being, including the child's familial, educational and social environment, and the child's social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach." (para 27)

In other words, there is really no aspect of the child's life and circumstances which might not be relevant to the enquiry. This much we knew, but having the full range of those issues set out in this way is unusual and helpful (if rather daunting). With reference to a recent academic article by my colleagues Jonathan Herring and Charles Foster,* Munby LJ explains that his reference to 'happiness' should be understood in an Aristotelian sense of 'the good life'. The Judge rather ducks the question of what that might mean - "There is no need to pursue here that age-old question" (para 29) - but is clear that he does not mean "hedonism".

Societies, Communities, Families

The next point is that children live in societies, communities and families, and that a child's welfare cannot be considered in isolation. With passing reference to John Donne, Blackstone and Aristotle (as well as Herring and Foster's article again), Munby LJ remarks:

"relationships are central to our sense and understanding of ourselves. Our characters and understandings of ourselves from the earliest days are charted by reference to our relationships with others. It is only by considering the child's network of relationships that their well-being can be properly considered. So a child's relationships, both within and without the family, are always relevant to the child's interests; often they will be determinative" (para 30).

This discussion is important. It fits with Herring's earlier work about relational welfare,** as well as with my recent writings about the importance of seeing the welfare principle as including consideration of the interests of everyone involved in the child's life. With a focus on questions about human rights, I say that "Issues like parents' rights are not irrelevant or excluded under the welfare principle; quite the contrary, they may be a very important part of the process of deciding which course is best for the child".*** Munby LJ is quite right to put this point at its broadest, focusing on relationships, community, and the values of a pluralistic liberal society (including human rights).

Applying the Welfare Principle

Looking back to the famous House of Lords decision in J v C [1970] AC 668, Munby LJ quotes a section from Lord Upjohn's speech where he said that the judicial task is to behave as the reasonable parent, and that the views of the reasonable parent will change over time as society's values change. Munby LJ sees this as crucial, and draws a distinction between the concept of welfare - doing what is best for the child - and the conceptions or content of welfare - what we mean by "doing what is best for the child" in a given factual and temporal context (para 33). The former remains static, whereas the latter will change and develop:

"A child's welfare is to be judged today by the standards of reasonable men and women in 2012, not by the standards of their parents in 1970, and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes." (para 33)

That approach, of course, begs the question of what the standards of reasonable men and women in 2012 might be. Lord Justice Munby does not shy from engaging with this question, and he identifies three key aspects: (1) equality of opportunity, (2) aspiration, and (3) bringing the child to adulthood equipped to decide what kind of life to lead and to pursue their aspirations. The quotation is long, but worth reading in full:

"At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a 'judicial reasonable parent' and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable. In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead –what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future." (paras 79 and 80).

This is a judgment of extraordinary vision, grappling with important questions and offering insightful answers. No doubt there will be much said about this decision in the months and years to come, but my initial thought is that Munby LJ may have just set the standard against which we will judge explanations of the welfare principle, both in its theoretical meaning and its practical application, for some time to come.

Notes

* J Herring and C Foster, "Welfare Means Rationality, Virtue and Altruism" (2012) 32 Legal Studies 480

** See, eg, J Herring, "Farewell Welfare?" [2005] Journal of Social Welfare and Family Law 159; J Herring, "Relational Autonomy and Family Law" in J Wallbank et al (eds) Rights, Welfare and Family Law (Routledge, 2009).

*** R George, Ideas and Debates in Family Law (Hart, 2012), p 118.

 

 

Family Court Cases - Understanding Some Numbers

In this post, I attempt to explain some of the recurring but often misunderstood numbers that are used in discussions about family law and the family courts of England and Wales. In particular, I show how these various numbers fit together to make sense of the claim that 'about 10% of separating couples have their parenting arrangements decided by a judge'.


Two of the posts that I have put on my blog previously - this one from April about what the research says about different care arrangements for children after parental separation, and this one from June about some of the correspondence I had following a radio debate with someone from Fathers4Justice about family law reform - have made reference to some numbers and statistics about family law. In correspondence, in comments on my blog, and in blogs written about me elsewhere, people have taken issue with some of these numbers, and this post is designed to answer one of the more recurring issues.

The question that people are asking is basically this: how do you reconcile the claim that about 10% of separating parents end up with a judge making the decision about their childcare arrangements, with the number of children involved in family court cases and the number of children whose parents separate every year?

The Starting Point: About 10% of Parents Get Childcare Arrangements Decided by a Judge

First the 10% number. I've always been clear that it is about 10%, not exactly 10%. Using a representative sample of people (meaning that the general population is reflected as closely as is possible in the sample of research participants) this 2008 ONS report found that 8% of resident parents and 17% of non-resident parents said that they had court-ordered arrangements about contact. In actuality, the numbers ought to be the same for both parents but, bearing in mind that these numbers come from the parents' reports, the disparity between the numbers could be caused by a number of things.

One reason might be that some cases involve both court orders and agreement between the parties - the court makes an initial order and the parents later agree to vary it to meet changing circumstances, for example. It may be that more resident parents classify that as 'agreement' and more non-resident parents classify it as 'court order'. 

The reasons for the variation are not entirely clear, and it does highlight one of the problems that we face in making absolutely precise claims about family law. The research isn't perfect. In this study, it turns out in retrospect that the question being asked wasn't quite precise enough for our purposes here, and it would certainly be interesting to explore in more detail why different answers came from the two sample groups. But even with that limitation, this is a strong and representative study. In particular, it started with a nationally representative sample, and everyone was asked the same question. Given that, there is no reason to think that one number is going to be more accurate than the other, and taking an average gives us 12.5%.

12.5% is obviously slightly more than 10%, and I'm going to use 12.5% here. I don't think that the difference between these numbers is hugely important, and when talking to the general public as I did on the radio and as I do on this blog, I think they are close enough that it's reasonable to summarise as 'about 10%' - but today I'm going to be as precise as possible, However, to be clear, these are 'best estimates', so the claim is still that about 12.5% of separating families get their child care arrangements determined for them by a judge.

How many family court cases are there?

Now some numbers from the courts. These are 2010 statistics, taken from Tables 2.3 and 2.4 of this administrative report that the Ministry of Justice compiles every year. Those Tables include both Public Law and Private Law and, put simply, Public law is about child protection (taking children into state care because of abuse or neglect) and Private Law is about parenting disputes - we are only interested in the Private Law aspects here.

Within that, I'm focusing on the contact and residence stats because those two types of case are the ones about children's living arrangements and relationships with their parents. (The other orders - specific issue orders and prohibited steps orders - are about details, like which school the child goes to, whether the child should have a medical operation, whether the child should have a religious upbringing and, if so, of which religion, and so on.) So, here it is:

- Number of children involved in cases about residence orders: 40,420
- Number of children involved in cases about contact orders: 46,350

This adds up to 86,770, but it is wrong simply to add them up because some children will appear in both categories - once the judge has made an order about residence then (if it is not a shared residence order) the same child may well be the subject of a contact order. I don't know how many children that would account for, but we can avoid any possible claims that I am trying to manipulate the numbers by using the 86,770 figure. That number is almost certainly too high - possibly by a large margin - but I'm okay with using it for present purposes.

On my post about high-conflict shared care arrangements, I referred to there being '95,500 cases that went to court about children's contact arrangements in 2010'. This is from Table 2.4, which shows that the number is actually 95,460 (for those who want precision). It was a little bit sloppy of me to call these 'cases'. I was trying to make it easier to read, but they're actually called 'dispositions' in the report, and the reason for that is that one 'case' may have many 'dispositions'. There were also 36,970 dispositions involving residence, which I didn't mention previously because it wasn't the focus of my discussion.

Typically, the reason why one case has many dispositions is that a case has one or more 'interim order' made before the final order is reached. (When it is obvious that a case is going to go on for a while the court almost always makes an interim order to put some arrangements in place pending the final decision.) Another reason why there are more dispositions than cases is that some cases come back to court several times - a point I'll come back to later.

So this is how it can be that the court made 132,430 dispositions about residence and contact in 2010, when, at most, 86,770 children were involved in family court proceedings about residence or contact that year. What's more, thinking about it logically, many dispositions will involve numerous children per disposition. If Dave and Sarah have two children but go to court only once, they will add in two children but only one disposition to the statistics. So we need to be a little cautious about using these raw numbers without thinking about what they mean in practice.

But Look How Many Children Go Through Parental Separation Each Year...

The next claim made is that if the 12.5% figure is right, then you can't tie that in with the number of children whose parents separate each year. The argument goes like this: if 86,770 is 12.5%, then that means that 694,160 children are involved in parental separation every year, and that's obviously not true. A fairly standard estimate is that about 240,000 children go through parental separation each year, though we don't really know because parents who are not married (which accounts for nearly half of children in England and Wales) do not have to inform the state when their relationship ends.

However, the 12.5% figure can't just be used to multiply the total in this way, because the two numbers relate to different things. The 12.5% figure is about the proportion of parents who obtain court-adjudicated outcomes. This is a very different thing from the number of court orders made, or the number of children involved in court cases. To understand this, the way that a family court works needs to be understood.

The family court does three main things:

• One is the typical 'court' job - hearing evidence from two parties who disagree and then making a decision about the outcome of that case. This is called adjudication - the judge actually decides the outcome.
• The second thing that a court can do is to formalise an agreement that the parties have reached, making what are called consent orders. While the judge has the power to reject the substance of the agreement, consent orders are basically the court rubber-stamping a deal done between the parties.
• The third thing that the court does, which is not relevant here, is case management - setting dates by which things need to be done, ordering that documents be disclosed, and so on.

In the court statistics that we were looking at, there is no differentiation between adjudicated dispositions and consent dispositions. There is just a total, with no breakdown into categories. I don't know any statistics about the frequency of consent orders in this country, but they are very common. (For comparison, in New Zealand consent orders make up two thirds of all family court orders, and undefended applications a further 24% - only 8% of orders come from contested hearing where the judge has to decide between two sides.) This is very important, because the 12.5% figure that I was quoting is about adjudicated dispositions - about 12.5% of parents have their case resolved by a judge actually deciding what should happen.

So right away that takes the 86,770 number down a good way. I would guess it might be about half of all cases, but I'll go with 30% to minimise the chances that I look like I'm fiddling the numbers. So, the remaining 70% gives us about 60,000 children. That number is still double the 30,000 children that we'd be looking for if the 12.5% number were right. So how do we explain that?

The answer is actually rather obvious. Lots of cases go to court more than once, and they do so over a number of years. Parents do not necessarily separate and go to the court all in one year, and then never return - there are many patterns. Some people go to court almost immediately after they separate; others muddle through for a few months or even years before something happens (often a new partner or a new child comes into the family and upsets the delicate balance of the existing arrangements). Some families get one court order and then manage to make things work in one way or another after that without returning to court. Other families are serial court users, most commonly with intractable disputes that drag on, with interim orders along the way, over several years.

A straw poll of family lawyers that I know estimated that between 35% and 75% of their child law cases involve re-litigation or on-going litigation - that is, either families returning to the court a second, third or fourth time, or families whose cases go on over months or years, with multiple hearings and dispositions along the way. When Nadine O'Connor and I were talking on the radio a couple of weeks ago, she said (as I recall) that she had been involved in about 50 court hearings about her children. That doesn't necessarily equate to 50 dispositions, but it will be several dispositions and, one would think, they will have taken place over the course of a number of years.

So yes, many of the children involved in the 2010 court cases were parents who separated in 2010, but many of them will have gone through separation several years earlier and will still be appearing  on the 2010 statistics. And that's how it is that even when you attach actual numbers to the family court cases, it's reasonable to say that about 12.5% of separated parents end up getting a final order from a judge about residence or contact arrangements.