ANN THOMAS. The International Family Law Group LLP Hudson House, 8 Tavistock Street Covent Garden, London. WC2E 7PP + 44 (0)

Transcription

1 To what extent are the courts being drawn from current binding authority on relocation and towards a non-presumptive approach as outlined in the Washington Declaration on International Family Relocation? ANN THOMAS The International Family Law Group LLP Hudson House, 8 Tavistock Street Covent Garden, London. WC2E 7PP + 44 (0) (c) September 2012

2 England has for many years been viewed as a pro-relocation jurisdiction.

3 MK v CK [2011] EWCA Civ 793 redressed the balance towards a non-presumptive approach. Presumtive approach in the case of Payne v Payne [2001] EWCA Civ 166.

4 Thorpe LJ: I was using the word presumption in the non-legal sense. But with the advantage of hindsight I regret the use of that word.

5 At paragraph 26 he went on to say that: 26. In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.

6 At paragraph 40: a) Genuine b) Realistic b) Motivated by genuine concern c) Driven by some ulterior motive? c) Impact on the mother d) d) Outcome of the second and third appraisals must then be brought into an overriding review of the child s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.

7 Dame Elizabeth Butler-Sloss at paragraph 85 set out the factors to be considered: The welfare of the child is always paramount. (b) There is no presumption created by section 13(1)(b) in favour of the applicant parent. (c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight. (d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end. (e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important. (f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important. (g) The opportunity for continuing contact between the child and the parent left behind may be very significant.

8 The Washington Declaration March More than 50 judges and other experts Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the USA. The Hague Conference on Private International Law. The International Centre for Missing and Exploited Children.

9 The Washington Declaration Not intended to be conclusive but instead to stimulate an international debate on international relocation. Principals governing the outcome of relocation applications should be uniform throughout all parties to the 1980 Convention.

10 Paragraph 3 No presumptions for or against relocation But Paragraph 4 Shift the emphasis on the rights of the child more than the rights of the applicant parent. Remaining factors undoubtedly echo some guidelines in Payne.

11 Thorpe LJ stated IFL 127 [2010] Fam Law (June): Were England and Wales to subscribe to the text of the declaration, or anything in similar vein, it would represent a significant departure from the principles that our court has applied consistently since the decision in Poel v Poel [1970] 1 WLR The case for such a shift is not difficult to articulate. The principles stated in Poel were substantially founded on the concept of the custody or parent. Furthermore, there is an emerging body of significant research in various jurisdictions that must be brought into account.

12 Re: AR (A Child: Relocation) Mostyn J Paragraph 11: The [Washington Declaration] Supplies a more balanced and neutral approach to a relocation application, as is the norm in many other jurisdictions. It specifically ordains a non-presumptive approach. It requires the court in a real rather than synthetic way to take into account the impact on both the child and the left-behind parent of the disruption of the periodicity and quantum of the prevailing contact arrangement. The hitherto decisive factor for us - the psychological impact on the thwarted primary carer - is relegated to a seemingly minor position.

13 In Re: H (A child) (2010) (CA) (Ci Div)/Re H (A child) [2007] EWCA Civ 222 [2007] 2 FLR 317: Concentrates on Point 4 of the Washington Declaration The impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties.

14 London Metropolitan University Conference 30 th June 2 nd July 2010 International Child Abduction, Relocation and Forced Marriage. Over 150 leading family law specialists from 18 jurisdictions.

15 Pressure for Reform Not all relocation cases involve a clear primary carer seeking to relocate but often two parents who have equal role in the life of the child.

16 MK v CK [2011] EWCA Civ 793 Lord Justice Thorpe took the opportunity to review the authorities, including that of Payne. At paragraph 39 he said: "...the only principle to be extracted from Payne v Payne is the paramountcy principle. All the rest, whether in paragraphs 40 and 41 of my judgment or in paragraphs 85 and 86 of the President's judgment is guidance as to factors to be weighed in search of the welfare paramountcy."

17 At the time when Poel was decided, there the notion of shared care was not at all common place. Thorpe LJ says at paragraph 43: ".whilst the welfare of the child was paramount, the custodial parent should be supported in her choice of habitual residence."

18 He went onto say at paragraph 44: Of course that all now seems archaic given our shift from parental power to parental responsibility introduced by the children act 1989 and given the more recent emphasis on the value to children of shared parenting where the parental relationship and the circumstances are favourable.

19 And at 46: Once the care is shared there is not the same dependency and the role of each parent may be equally important. The judgments in Poel consider only the position of the primary carer and an earlier position where there is a pending contest as to who should be the primary carer, Payne does not anywhere consider what should be the court's approach to an application where there is no primary carer.

20 Para 56: Now, the court clearly contemplates two different states of affairs. The one, the more common and in some ways the more obvious, is where the child is clearly living with one parent, and it is that parent that wishes to leave the jurisdiction, for whatever reason. The other, and much less common state of affairs, is where that does not exist and either there is a real issue about where the child should live, or there is in place an arrangement which demonstrates that the child's home is equally with both parents.

21 C & D Neutral citation [2011] EWHC 335 (Fam). Welfare check list. Detailed consideration of its subparagraphs over the course of three pages of judgment.

22 A recent national survey, "Understanding Society", puts the proportion of equal shared care at 3.1% of the total.

23 Moore-Blick LJ As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance. Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted. As Hedley J said in Re Y, the welfare of the child overbears all other considerations, however powerful and reasonable they may be. I do not think that the court in Payne v Payne intended to suggest otherwise.

24 Lady Justice Black also allowed the appeal but on a different basis to that of Thorpe LJ and Moore-Bick LJ at paragraph 141: The principle - the only authentic principle - that runs through the entire line of relocation authorities is that the welfare of the child is the court's paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

25 Paragraph 143: The effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.

26 Paragraph 144: I do not see Hedley J's decision in Re Y as representative of a different line of authority from Payne, applicable where the child's care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part.

27 Whilst MK v CK certainly clarified the law and stressed that there was no presumption in favour of the applicant parents, it did not produce any new guidance.

28 Cases since MK v CK There have not been many reported decisions since MK v CK and it is too early to say whether the courts have really done a judicial u-turn.

29 In Z (A child) [2012] EWHC 139 (Fam) The Judge considered the guidance in Payne, as further considered in MK v CK and granted the Mother s application. At paragraph 53 she said: Z's welfare is my paramount consideration.

30 Comment and conclusion 1. Should the burden be on the parent seeking to relocate, to show the real and wider benefit to the child of the move? 2. Much more research needs to be undertaken. 3. Much greater recognition of the impact of moving to a country with perhaps a very different language, different culture, different educational system, different health expectations and so many features. 4. Closer attention needs to be paid to the child, on the psychological and emotional effects of a removal, from all his friends, family, educational system, and other hobbies and activities. 5. MK v CK is a good start in redressing the balance but it is only the start towards appropriate reform The number of relocation applications is only likely to increase with many more international families. It is an area of law which must be grappled with.