Listing Relocation Cases

For some time, colleagues at the Bar and I have been sharing concerns that under the draft guidelines for case allocation in the new Family Court, almost all international relocation cases will be listed in front of District Judges.

The draft guidelines put cases into three categories:

1. cases involving proposed moves to countries which are not signatories to the 1980 Hague Convention on child abduction -- High Court Judge

2. cases involving proposed moves to countries which are signatories to the 1980 Hague Convention -- District Judge

3. cases involving proposed moves to countries which are signatories to the 1980 Hague Convention but which are unusually complex in legal or factual terms -- District Judge or, exceptionally, Circuit Judge.

This allocation marks a dramatic change from just a few short years ago. As late as 1993, it was being said that all international relocation cases should be reserved to High Court Judges or, if necessary, senior Circuit Judges sitting in the High Court. In 2009, Lord Justice Wall in the Court of Appeal said that Circuit Judges would normally hear international relocation cases, and that District Judges should hear them only if the judge had special experience to make him or her suited to such cases. My research on relocation cases in 2012 showed then that about 20% of international relocation cases were being heard by District Judges. So finding that almost all relocation cases should now, by default, be listed in front of DJs is quite a turn around.

Why does it matter, you might ask. Put shortly, there are two concerns. One is simply that international relocation cases are actually very complex. Even a "straightforward" case involves the potential for a serious, long-lasting changes to the child's relationship with one parent (usually the father) if the relocation is allowed, and a serious restriction on the freedom of the other parent (usually the mother) if the application is refused. There are also legal complexities with making on-going contact orders which are effective after a relocation, and real care and expertise is needed to make sure that such orders are worth the paper that they're written on.

The second concern is about appeals. Child law cases heard by District Judges are, ordinarily, heard on appeal by Circuit Judges, whereas cases that start in front of Circuit Judges are heard on appeal in the Court of Appeal. The safeguard of having a potential for review by the senior judges of the Court of Appeal is very important -- to me, almost essential -- when dealing with such major decisions as international relocations.

Anyway, these concerns appear to have been making their way through the system, and a well-placed source (I want to say "a leading member of the sieve", but I'm not sure how many people would get that reference...) has told me that the matter is now being re-considered. I for one would certainly favour a system that gave these important cases a default allocation to a more senior level of tribunal, with the possibility for genuinely straightforward cases to be moved down if that seemed appropriate to the gateway judge.

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.

International Relocation - Supreme Disappointment

Last autumn, I posted here about an international relocation case in the Court of Appeal called Re F (Child: International Relocation). The Court of Appeal had, to the surprise of many onlookers, dismissed the father's appeal against a decision to allow his child to be removed from the UK to live with the mother in Spain. The case was unusual as relocation cases go, and seemed like a good test of the legal principles applicable to these cases for that reason.

The father, represented pro bono by Access Law Solicitors and by Frances Judd QC, Edward Devereux and myself from Harcourt Chambers, applied to appeal again to the Supreme Court. To be clear, there is no 'right' to take a case to the Supreme Court. You have to get permission. The Court of Appeal can, in principle, give permission, but very rarely does - it is considered better to allow the Supreme Court Justices to decide for themselves which cases they take. Most applications are turned down, as can be seen from the Supreme Court's published list of applications and the results. If the case is turned down, that's the end of the matter - there is no further appeal within the domestic courts. If the case is accepted, then it proceeds to a proper hearing in the Supreme Court.

The application to appeal Re F involved a 41-page document setting out the grounds of appeal, which fell into three broad categories:

1. the question of whether the guidance given by the 2001 Court of Appeal decision in Payne v Payne amounted to an unjustifiable gloss on the welfare principle as set out in section 1 of the Children Act 1989;
2. the question of whether, regardless of the answer to that question, it was right to say that such guidance could be applied (with or without modifications) to cases where the applicant was not the primary carer of the child in question, as had happened in this case and as Black LJ had suggested in the 2011 case of K v K;
3. the question of what, if any, guidance should be given by the senior courts to trial judges about how to determine international relocation cases.

Six reasons were suggested as to why these questions were matters of general public importance which therefore justified the attention of the Supreme Court. Those reasons, in short were:

1. the increasing mobility of families in recent decades;
2. the increasing sharing of children's care arrangements by parents after separation, such that guidance based on there being a single 'primary carer' may often no longer hold true;
3. the need not to discriminate between parents based on their gender or their parenting roles;
4. the apparent difference of opinion between different Court of Appeal judges about whether the guidance given in Payne applies to all international relocation cases or only to some (see K v K);
5. the apparent controversy over the way in which that guidance is stated, as seen in court judgments, counsels' submissions, academic writing and elsewhere;
6. the different way in which other jurisdictions approach international relocation cases.

These submissions were, of course, expanded at length, and were put on paper to the Supreme Court in mid-December. On 4 February the answer came: permission to appeal was refused.

The Supreme Court customarily gives very brief reasons when an application to appeal is refused. The reasons in this case were twofold. First, that this case did not demonstrate a matter of general public importance that should be considered by the Supreme Court at this time (which is a fairly standard reason). Second, it was said that, on its facts, this case was clearly a borderline welfare decision, and therefore that an appeal as to the outcome was unlikely to be successful.

Of course, counsel had attempted to show that this was a matter of general public importance, and I think that it is. While international relocation disputes make up only a small minority of cases in the family courts (best guess, 200-250 cases per year), they are amongst the most difficult, and have potentially life-long consequences for the children involved. But of course it is a judgment call - the Court of Appeal hears relocation appeals reasonably often, and has a broadly consistent line about how these cases should be assessed. One might think, therefore, that there is no need for a Supreme Court appeal.

The second reason given by the Supreme Court is more tricky. There is a general rule that appeal courts should not interfere with borderline decisions in welfare cases because, where a case is on the borderline, the judge who heard all the evidence and met the parties is better placed to decide which side of the line it should fall. That's fine - but in order to have any force, it relies on an assumption that the judge understood and applied the correct legal principles. Here, the very argument was that the principles which the judge applied were wrong.

In particular, the guidance which he applied assumed that the applicant was the child's primary carer, which she was not. If the case was borderline when the legal guidance assumed that the applicant was the primary carer, it would probably not have been borderline had that inappropriate guidance not been applied. Indeed, the strong argument in favour of leaving the child in the high quality care of his primary carer father would, one would think, have tipped the case decisively against allowing the relocation case. The only reason the decision appeared to be a borderline one was the influence of the very guidance which the father sought to show was inappropriate.

It is a loss for this child and this father that the case has ended as it has, and a loss for the development of relocation law in general that the Supreme Court turned down this opportunity to review the English courts' guidance on how international relocation cases should be assessed.

 

The author was involved  in the father's application to appeal

in a pro bono advisory capacity. All views expressed

are the author's own, and are not necessarily shared

by the other lawyers in the case, or by the father.

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?

--
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.

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.

Internal relocation: have kids, will travel (barring exceptional circumstances)

Internal relocation cases are disputes between separated parents about a proposed move to a different geographic location within the UK. In this post, I discuss the law and some research that I did with legal practitioners in 2009, and suggest that it is time to think again about the courts' current approach to relocation disputes.



One of my barrister colleagues at Harcourt Chambers has a case coming up about internal relocation. Relocation cases are disputes between separated parents that arise when one of them proposes to move to a new geographic location with their child or children and the other parent objects. The 'internal' part means a move within the United Kingdom, rather than internationally.

Families obviously move house all the time after separation, but internal relocation disputes that end up in court are pretty rare for a number of reasons. Some of those reasons are obvious - separated parents work things out for themselves when one of them wants to move, or the move isn't far enough to justify the kind of expense and aggravation that a court case involves. There are less obvious reasons, though, which relate to the law itself.

The Law on Internal Relocation:

Like all parenting disputes about children's upbringing, internal relocation disputes are governed by the Children Act 1989. The heart of the Act is that in all decisions about a child, that child's welfare must be the paramount consideration. In practical terms, that means that any relevant information can be taken into consideration, but only things which directly or indirectly affect the child will be considered relevant. This 'welfare principle' is then guided by case law as it develops in relation to particular types of case.

The first litigated internal relocation case that reached the Court of Appeal (and so started to matter more generally to the law) was a case reported as Re E (Residence: Imposition of Conditions) in 1997. In that case, the mother was providing the main care of the children, and the father sought an order from the court preventing her from moving with them from London (where they had lived before separation) to Blackpool (where the mother's extended family lived). The Court of Appeal refused to make the restrictions on the facts of that case, and set out some general guidelines for future decisions.

In the leading judgment of Lady Justice Butler-Sloss, it was noted that although the Children Act contains a power to impose conditions on a residence order, it would 'not sit easily' with what was meant by a residence order if conditions were routinely imposed. A residence order, which determines the person or persons with whom a child shall live, would normally come with significant flexibility about how to raise the child while in that person's care. As the judge went on:

"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the UK or with whom. There may be exceptional cases".

This final point, about exceptional cases, was clearly intended by Butler-Sloss LJ to avoid any overly rigid rule, but with the advantage of hindsight it was perhaps unfortunately expressed. In subsequent cases, other Court of Appeal judges began to refer to the 'highly exceptional' circumstances which might justify stopping an internal relocation, and then of the 'truly exceptional' nature of an order stopping an internal relocation.

In the most recent reported case, Re F (Internal Relocation) in the summer of 2010, Lord Justice Wilson expressed 'puzzlement' at this development of the law. As the judge noted, it is hard to see any legal justification for an exceptionality test. All decisions about children's upbringing are governed by a single principle, namely that the welfare of the child is the paramount consideration. If a welfare analysis suggests that internal relocation is not in the child's interests, why should there be a requirement that the case be in some way 'exceptional'?

It might be argued that this label is purely descriptive: as a matter of fact, cases where restrictions on relocation within the UK will be the exception. (That is what I think Butler-Sloss LJ probably meant in Re E.) That might be fine. As the Supreme Court said in another child law case, it is okay for the outcome of decisions more often to be X rather than Y, but not okay for there to be a starting point or presumption in favour of X.

However, the way that the law in this area has developed means that the label is not really descriptive, but is actually a test which presents a high hurdle for someone seeking to stop an internal relocation to cross. Lord Justice Wilson was clearly unhappy about this state of affairs in Re F, but thought that the Court of Appeal was not able to do anything about it:

"It is now too late ... for [the Court of Appeal] to rule that, in internal relocation cases, the analysis of the child's welfare ... should not be conducted through the prism of whether the circumstances are exceptional. ... But for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the [Children] Act."

While I think that the Court of Appeal could, in fact, have removed this undue gloss on the welfare principle, Wilson LJ nonetheless makes the argument for a re-think clearly.

Relocation Research

Similar ideas were found in my research into relocation disputes in 2009, when I interviewed lawyers and judges about their experiences of the law. One judge whom I interviewed and who, like Wilson LJ, was uncomfortable with placing an exceptionality gloss on the welfare principle, said this: "If the welfare analysis suggested that it would be best for the welfare of the children for them to stay, ... the court should have the power to make that happen."

Other participants pointed out the strangeness of having a different approach to moves inside the UK (allowed unless there are exceptional circumstances) and moves outside the UK (where there is a multi-stage test, albeit a controversial one). Many participants noted that maintaining regular contact after a move from London to Perth or Bangor would be a lot more difficult than after a move from London to Paris or Brussels.

However, even for shorter moves, some lawyers and judges were concerned about the effects that an internal relocation might have. As one solicitor said, "you might be talking about only a one-hour or two-hour journey, but [such moves] are still equally destructive [of contact]". It was these consequences of the decision that led one barrister to stress the importance of making the judge see why the case was important and more difficult than a normal contact case:

"You have got to look at this much more carefully and say, if I make this decision to [allow the parent to] relocate internally miles away ..., what is the medium- to long-term effect of that? Is it going to be reasonable [to continue] to have fortnightly contact? Often it is not, if the distance is vast and involves huge amounts of driving."

This is the reason why relocation cases call for a broad all-factor child-centred approach, not restricted by the straitjacket of an 'exceptionality' test.

Discussion:

Relocation law, both internal and international, is long overdue for a re-think. As one senior barrister said in my research, it is not necessarily even that the Court of Appeal has got it wrong at the moment (though it may have), but rather there are just so many people who are unhappy with the law as it is that the courts should review it with an open mind as to what the outcome will be.

There is lots I could say about how the law should be changed, but there's one overarching point that I think comes from this discussion. It seems increasingly difficult to justify having a legal approach in which so much depends on the proposed destination of the relocation. To be honest, I'm doubtful whether having a different rule for moves within the UK versus moves elsewhere would prove to be EU-law compliant if challenged in the European courts. (The rule appears to favour moves within the UK and therefore disfavour moves elsewhere within the EU, thus de facto discouraging people from exercising their rights to free movement within the Union.)

The Court of Appeal has often stepped in before to remove other glosses on the welfare principle that grew accidentally over time, and it should do the same with internal relocation. Failing that, then it is time for the Supreme Court to get involved, preferably with a combined appeal involving both internal and international relocation cases so that the legal principles of the two sides of relocation law can be considered together.

In an article published in the Journal of Social Welfare and Family Law in 2010, I suggested a series of questions that might be considered when dealing with a relocation case:

(1) What is the reality of the existing care arrangement, including consideration of the various contributions which are being made to the child’s welfare and wellbeing?

(2) Why does Parent A wish to relocate, and, in particular, is the relocation a covert attempt to disrupt the child’s relationship with Parent B? In terms of practicalities, are the plans to relocate well considered and reasonably realistic? Similarly, why does Parent B oppose the relocation?

(3) Taking into account the answers to (2), is Parent A able and willing not to relocate if the child cannot move? Conversely, is Parent B able and willing to move as well if the child does move, so as to continue the present care arrangement in a different location? Assuming one (or both) of these options to be possible, consideration must be given to whether it would be in the child’s interests to adopt that course, taking into account the likely effect on each parent and, directly and indirectly, on the child.

(4) If the options in (3) are impractical or undesirable, what would be the advantages and disadvantages for the child, either of going with Parent A or of remaining with Parent B? This assessment should take into account factors like (a) the realities of the existing care arrangements; (b) the effect on the child of moving with Parent A while Parent B remained, or of remaining with Parent B while Parent A moved (including the effect on the child’s relationship with the each parent, with other family members, and with friends and community more generally); (c) the possibility for maintaining a strong on-going relationship with whichever parent the child was not with; (d) the general disruption involved with moving (new school, etc) compared with remaining in the current location; and (e) any significant material advantages or disadvantages either way.

(5) What are the child’s own views about the matter, taking into account the child’s age and maturity?

This approach probably isn't perfect, but it might be a place to start in re-thinking relocation law.

For more detailed discussion, see my two case 

commentaries on internal relocation cases in the

Journal of Social Welfare and Family Law: (2010)

32 JSWFL 71-80 and (2011) 33 JSWFL 169-174

Shared Parenting in Australia - Notes from the Chief Justice's Talk

The Chief Justice of the Family Court of Australia, Diana Bryant AO, spoke about the lessons to be learnt from the Australian shared parenting reforms of 2006 at the Annual International Family Law Seminar in London on 1 May 2012. The Judge highlighted possible dangers of following a similar path in England and Wales, and offered practical tips to avoid the major pitfalls. This is an unofficial report of the Judge's paper based on the notes that I took; Bryant CJ will, I believe, be publishing her full paper in International Family Law later this year.

It is hard to imagine a more timely moment to hear Australia's most senior family court judge talking about the lessons that would-be law reformers in England and Wales can learn from the Australian experiences of shared parenting legislation. In her excellent paper, Chief Justice Bryant reflected on the 2006 changes to Australian family law, and commented on their relevance to current proposals to amend the law of England and Wales.

Before we get to the Chief Justice's talk, a very brief summary of the Australian law relating to children after parental separation may be helpful. The Australian law is complicated, so this is a rather simplified account (i.e. don't rely on this for anything - it's just to put the rest of the post in context) but in summary the 2006 reforms had the following effects:

• parents are presumptively given equal shared parental responsibility for their child, meaning the legal powers and responsibilities of raising him or her [which is basically the same as the law in England and Wales]
• if both parents have equal and shared parental responsibility, legal advisers and mediators have to discuss with the parents, and the court must consider, in turn each of the following options and decide whether they would be in the child's best interests:
• spending equal time with both parents
• spending 'substantial and significant time' with both parents (meaning at least some of all the following time: weekends, holidays, normal weekdays, and significant days like birthdays or Christmas)
• having other contact with the non-resident parent.
• through all of this, the child's best interests are informed by two "primary considerations", namely:
• the importance to the child of having a meaningful relationship with both parents
• the importance of the child's safety

Somewhat alarmingly, these last provisions had to be amended in 2011 to make clear that safety is more important than the meaningful relationship provision, which one would have thought to be so obvious as to go without saying - but apparently not.

So, what did Bryant CJ have to say about all this? After discussing the background to the Australian shared parenting reforms, her Honour offered three key pieces of advice for those seeking to reform the law in England and Wales:

1. Be clear what is intended by any reforms. Without clear and well-explained aims, any reform would risk misinterpretation by the public, regardless of any official interpretation by judges and lawyers.
2. Have available and make proper use of good research evidence. Bryant CJ was concerned that the Australian government had not had a good evidence base for its 2006 reforms and had instead relied on unrepresentative anecdotes. She also noted that the findings of the excellent Australian research done since the 2006 reforms [much of which I summarised in my post on shared parenting last week] have been resisted by many pro-shared parenting advocates because it does not match up with what they wanted it to say - and they have been effective in that resistance because the findings go against an established narrative that shared care is always good for children which those anecdotes had established before the reforms. Much of that research is important here, but Bryant CJ highlighted the importance of protecting children from violence and other conflict as being especially relevant. [I wrote about the importance of using research and not anecdotes when looking at law reform last week, so you can imagine that this was music to my ears!]
3. Avoid complex language in the legislation, because complexity leads to confusion. I won't go into the details about the Australian law that the Judge gave, but it covered the intricate relationship between "the best interests principle", the "primary consideration" of the importance of "meaningful relationships", and the statutory guidelines about "equal time" and "substantial and significant time". [If you're bored and have 5 minutes to spare, take a look at the complete pig's ear that is the much-amended Family Law Act, starting at s 60A and with a focus on the key provisions of s 60CC, s 61DA and s 65DAA.]

Bryant CJ then turned her attention to David Norgrove's Family Justice Review (2011) and the relevance of the Australian experiences to the shared parenting debate in England and Wales. Norgrove noted that the Australian focus on "meaningful relationships" had led to a degree of confusion and, in particular, was often conflated with there being a presumption of shared time. While the Chief Justice was quick to point out that the Australian courts have focused on the quality of parent-child relationships and not on time, she conceded that it was hard to know what the general population thought. She also observed, as Professor Helen Rhoades has noted, that many people saw the law as containing a de facto presumption of equal time.

One real danger of law reform, therefore, lies in the effect that it can have on people who make arrangements outside the courts, based on what they think the law is. If the law's message is not entirely clear, a perceived presumption in favour of equal time can take hold in the public consciousness, even if that is not what the law says.

Shared Time Parenting After Divorce - What the Research Says

This post comments on the government's plans to legislate about parenting arrangements after separation or divorce. I talk about the research evidence and show that introducing a legal presumption that families involved in court cases should split their children's time between two homes is likely to be bad for most of the children involved.

Introduction:

The Government has recently announced that it intends to introduce legislation about parenting arrangements after the separation or divorce of parents, contrary to the recommendations of its own independent report. The aim, it seems, is to emphasise the importance to children’s well-being of having both parents involved in their lives after separation, just as we assume they are both involved if the parents are together.  

As Professor Liz Trinder of Exeter University wrote in a comment piece on the Guardian website in February 2012, that sounds perfectly sensible – but it’s important to keep sight of the big picture in order to see why some of the plans being proposed are a bad idea from the point of view of the children involved.

First, let’s clarify what this debate is about. So far as I am aware, it's a fairly universally-held view that, if it is safe, children should have a strong and on-going relationship with both of their parents regardless of the status of the adults’ relationship with one another. That being the accepted position, this isn’t really a debate about the principle that children should have strong involvement from both parents – it’s a debate about the practical ways in which that principle should be applied.

In this post, I explain some of the recent research that has been done into the working of the family court and the effects of different care arrangements on children’s lives. The aim of this is to demonstrate why changing the law to promote shared time for children of separated parents is a misguided idea that will harm children.

Family Law – Facts and Myths:

A lot of people know someone who has been involved with the family courts, either as a parent or as a child. Despite this, research consistently shows that only about 10% of separating parents go to court about issues to do with their children. The large majority of parents sort things out without help from the court, either entirely privately or with other assistance from professionals (usually family solicitors, who are skilled at negotiating and settling cases).

It doesn’t take much imagination to realise that many of the 10% who do end up in court are the most conflicted, the most bitter, and the most complicated cases. After all, these are the people who were unable to negotiate a settlement. Research shows that the cases that go to court have very high rates of domestic violence, drug and alcohol abuse, mental health issues and problems which often come close to needing intervention by social workers to safeguard the welfare of the children involved.

Despite these complications, the family courts adopt a strongly pro-contact position. They bend over backwards to promote relationships between parents and their children in the most challenging of circumstances, and have done their best to deal with the tricky problem of non-compliance with orders. (These cases are very complicated, because most of the ‘remedies’ that the law has impact badly on the children involved.)

Regardless of that, family law is repeatedly accused of being ‘anti-father’ and as excluding men from their children’s lives. Led by some fathers’ rights groups like Fathers4Justice and Real Fathers for Justice, the rhetoric that has taken hold is of the court colluding with hostile and vengeful mums to stop loving and blameless dads from seeing their kids. If that were true, it would be shocking and a matter for immediate and serious reform. But it’s not true – it’s a myth.

I’m not saying that there are no cases where something a bit like that might happen. I’m sure there are. The family justice system is very large and the courts deals with the best part of 100,000 cases about children’s relationships with their parents every year – no doubt there are a few cases where the judge gets it wrong (that’s why we have an appeal court!), or where not enough is done to stop mothers from keeping good fathers away from their kids. But these cases are a tiny and unrepresentative minority, and it is wrongheaded to call for reform of the entire system based on these examples. As I said in my last post, anecdotes make powerful stories, but they're a bad basis for making decisions when we have good research available.

Looking at the research, what we see is very different. The records for 2010 (the latest available) show that 95,500 cases went to court about children's contact arrangements. Of those, only 300 ended with the court specifically refusing to allow the father to see his child. That’s 0.31% of litigated cases – or, when you take into account that only10% of cases go to court in the first place, 0.031% of all separating families. In a few other litigated cases the application was withdrawn (2.29% of litigated cases) , and in a few others (0.88% of litigated cases) the court made ‘no order’ (which usually happens when the parents agree about the outcome during the course of the case). But in 96.52% of cases that went to court, judges made orders which involved at least some contact between both parents and their children.

The next question is whether those orders were for ‘meaningful’ amounts of contact, or whether they were token amounts. A high-quality piece of research by Joan Hunt and Alison Macleod investigated this question in 2008 by going to courts and looking through all the files from individual cases. This is incredibly time-consuming research, but it meant that Hunt and Macleod could say with absolute certainty what was going on in the courts.

And what did they find? Well, in almost all cases, the courts gave fathers exactly what they were asking for. If they asked to have the children stay with them one night a week, that’s what they got. If they asked for half the school holidays, that’s what they got. 

So what does all this tell us? That the family courts of England and Wales are not biased against fathers. The courts almost always make orders for contact, and those orders almost always reflect exactly what the fathers were asking for. Indeed, the bigger concern is that the courts are systematically downplaying the dangers to children and mothers of domestic violence in their zeal to promote father-child relationships.

Parenting Arrangements – Sharing Rights and Responsibilities:

A large part of the rhetoric around the post-separation parenting debate is about ‘sharing’ and ‘fairness’. It is sometimes said that, because the law ‘discriminates against fathers’, it would be better to have a rule that parents automatically share the upbringing of their children after separation. Again, that sounds sensible, but it’s important to unpack what it means.

The first thing to ask is about the extent to which parents who live in the same household actually share the everyday parenting responsibilities for their children’s upbringing. Some do, of course, but the more common pattern is for one parent to take responsibility for the majority of childcare. For a number of reasons too complicated to cover here, that person is more often the mother. (I am stating this simply as a fact, not trying to give it any normative endorsement.)

Next, we need to know something about the law. When the last major reform of child law took place in 1989, a split was made between the legal rights, responsibilities and authority about children’s upbringing – which was termed ‘parental responsibility’ – and the practical everyday aspects of children’s upbringing – where they should live, how much time they should spend with each parent, which school they should go to, whether they should have a religious upbringing or not, and so on.

Following reforms to the law in 2002, almost all parents have parental responsibility automatically – and those who do not have it automatically can usually get it easily enough. In fact, research shows the courts are often willing to give parental responsibility to parents who have absolutely no involvement in their children’s lives as a ‘label’ or ‘badge’. (One particularly revealing case involved giving parental responsibility to a man who had been convicted of paedophilic offences and who was deemed so dangerous to his children that he was forbidden from contacting them in any way. Cases where PR is refused are rare and extreme.)

The fight cannot, therefore, be about shared parental rights and responsibilities as a matter of law, because these things are already shared in virtually all cases. Just in case this needs to be made any clearer (though I can’t really see that there is much room for misunderstanding), the provisions in the law on parental responsibility could be changed to state explicitly that parents share it. This change would make no legal difference at all – that is already the case – but if it makes the message clearer then I cannot see the harm.

Parenting Arrangements – Shared Time?

Where I do see real dangers, though, is in making any legislative changes at all that start to dictate particular outcomes in favour of shared time for children between their parents. The law at the moment says simply that the court must make the welfare of the child the paramount consideration. The focus is all on the child. Parents’ rights are not the issue – the only thing that the court thinks about is what is best for the kids. Shared time legislation, on the other hand, is about adults – it treats children as things that can be split in half and divided up equally so as to be fair to the parents.

It’s particularly important to remember how few cases are decided in court, and how conflicted they are. If people who get on well and who can reach amicable agreements want to organise their childcare with a more or less equal division of time between two households, that can work quite well. Recent research in the UK shows that about 3.1% of separated parents outside the court choose to do this. Large-scale research in Australia shows that where parents get on well and can be flexible about the arrangements from one day to the next, shared time can work well for the kids involved.

However, two characteristics rarely found amongst parents who end up litigating in the family court are an ability to get on well with each other, and a flexible approach to the other parent. These 10% of people are highly conflicted and have major difficulties with their parenting – and the government is planning to introduce a presumption that these people, of all people, should split the care of their kids 50/50 between two households?? This is a recipe for disaster, and flies in the face of huge amounts of robust and careful research.

Research shows that shared time can be a good option for some kids, though it is not clear that shared time is any better or worse than having primary care with one parent and contact with the other. But for other kids – and this is the important part – shared time is clearly worse than primary care with one parent and contact with the other. So who are the kids who do worse with shared time?

Put simply, shared time is bad for children when any of the following characteristics is present:

• there are concerns about violence (either directly towards the children or, more commonly, by one parent towards the other)
• there is high conflict between the parents
• there is a very rigid and inflexible arrangement of sharing the child’s time between the two households.

Okay, so now think back to the characteristics of the separating parents who end up in court. What did we see? High levels of violence, high levels of conflict, high levels of inflexibility. The research clearly shows that most people who end up in court arguing about parenting arrangements will not be well suited to a shared time arrangement, because the people who end up in court tend to have problematic relationships which make shared time bad for their kids.  

To be honest, none of this surprises me. If I had to pack a bag and move house every 3 days, I wouldn’t be very happy and I wouldn’t do so well at work either. Adults who do this as part of their job find it very dissatisfactory and, in general, try to avoid doing it for any prolonged period.  Then add in the high levels of conflict, inflexibility or violence between people in the two households, and it sounds like a nightmare. Why on earth do we think that kids, whose worlds are still developing and who find it harder to think about things in a long-term way, would find this a good way to live.

Conclusions:

Constant moving from one household to another is hard work, physically and emotionally. The research shows that the kids who do well with split time find their living arrangements manageable and do-able if they feel at home in both houses, and where both parents work cooperatively and flexibly to make the arrangements child-focused. If the parents can do that, then great. But if the parents can’t even be cooperative and flexible enough to make arrangements without going to court, there is nothing that the court can do to help, and imposing shared time arrangements on uncooperative and inflexible parents will be damaging for the children concerned.

In general, kids should have strong, on-going relationships with both their parents so long as it is safe to do so. The irony is that trying to encourage an equal split of time amongst the conflicted parents who end up in court is likely to lead to the exact opposite. All children are different, of course, but the consistent message from research around the world is that kids hate rigid clock-based care arrangements. Moreover, there is no reason to think that more time equals a better relationship between a parent and his or her child. What matters is the quality of the time that the parents spend with their children and whether they are good parents – better to have a really great weekend than a really stressful week.

So, despite the attractive rhetoric of sharing and fairness, it is important that the law not be changed to favour shared time parenting. Sharing and fairness are about adults. When we keep our eyes on the children whose lives we are discussing, shared time is demonstrably a bad option.