Presentation on theme: "Leave to Remove – Developments and Support Families Need Fathers Volunteers’ Conference Crown Copyright material is reproduced with the permission of the."— Presentation transcript:
Leave to Remove – Developments and Support Families Need Fathers Volunteers’ Conference Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland
The talk today Changing Demographics 2011 Changes to Relocation Law Re K, Re Y, Payne binding precedent and judicial discretion Case Analysis Considering strengths and weaknesses. Part One Leave to remove is becoming increasingly common, and child abduction cases are on the increase. Part Two Part Three
Changing Demographics - 2010 In 2010, births to foreign born mothers accounted for 25% of births. In 2007 it was 20%. In London, 55% of births were to foreign born mothers in 2010. In some boroughs, the number is as high as 75%. Births to UK born mothers increased by 6%. To foreign born mothers, the increase is 63%. 400,000 UK residents left the UK to live abroad. 2005/2010 Births to foreign born mothers 2005/2010 Births to UK born mothers
Changing cases This year, I see more cases due to foreign mothers wishing to return to their country of birth (and hostility). Three years ago, the majority of cases I saw involved British born mothers wishing to relocate for lifestyle/employment (and hostility) reasons.
The graph shows the increase in Polish people registered as working in Britain. Poland is a signatory to the Hague Convention and Brussels II Revised Regulations. In 2010, 8.2% of births were to mothers born in Poland, India, Pakistan and Bangladesh. After Polish mothers, the next highest birth rates to foreign born mothers are those from Pakistan, India and Bangladesh. None of these countries are signatories to the Hague Convention. The UK/Pakistan Protocol is not ratified under Islamic Law. There were 55 reported abductions to Pakistan last year. All abductions up to non-Hague countries 10%. Countries of origin, areas of potential increase in LTR cases
Where may FNF may be called upon for specialist support/knowledge Area (sample locations) % Births to non-UK born mothers INNER LONDON60.4 Slough UA58.9 OUTER LONDON53.4 Luton UA50.0 Cambridge45.4 Leicester UA44.8 Watford44.8 Reading UA42.8 Manchester41.8 Birmingham38.0 Peterborough UA37.1 Northampton30.6 Nottingham UA29.3 Blackburn with Darwen UA26.5 Newcastle upon Tyne26.3 WALES10.4 Changing Demographics mean branches are more likely to see… More international parental abduction cases. More leave to remove cases. Parents abducting to EU Countries… The Brussels II Revised Regulations apply (except Denmark) Hague Convention applies Parents should contact the ICACU* for help Abductions to Hague member states… Hague Convention applies Parents should contact the ICACU* Abductions to Pakistan… There exists the UK/Pakistan Protocol, but it was never ratified under Islamic Law – no guarantee! Parents should contact the FCO* Child Abduction Unit Abductions to other states… Parents should contact the FCO* Child Abduction Unit *ICACU - International Child Abduction and Contact Unit FCO – Foreign and Commonwealth Office
Resources at www.thecustodyminefield.com The full text of international legislation including: The Hague Convention on the Civil Aspects of International Child Abduction The Brussels II Revised Regulations The UN Convention on the Rights of the Child The UK/Pakistan Protocol (Recently Added) Countries signed up to: The Hague Convention on the Civil Aspects of International Child Abduction The Brussels II Revised Regulations
Last year’s FNF Conference The Court’s Position A review of the application of Payne was only possible by the Supreme Court or Parliament. Payne v Payne represents a binding precedent on the CoA and lower courts. Payne v Payne CoA 2001 Payne v Payne CoA 2001 Much can change in 9 months
Stepping stones to the Re K review Re H (2010) Wilson Re H (2010) Wilson C v D HC 2011 C v D HC 2011 AR (Children) Mostyn 2010 AR (Children) Mostyn 2010
2011 – A Review of Payne Re K (MK v CK) CoA 2011 Re K (MK v CK) CoA 2011 Payne v Payne CoA 2001 Payne v Payne CoA 2001 Re Y HC 2004 Re Y HC 2004 Applies where there is clearly a primary carer Where care is shared (different from shared residence!) The only ‘point of law’ from Payne was the paramountcy principle. The rest is simply guidance which may prove useful depending on the unique facts of the case. Where care is ‘more or less’ shared, the rationale from Re Y should be followed.
What amounts to shared care? In Re K (MK v CK) CoA 2011 In Re K (MK v CK) CoA 2011 Five nights and six days with their father. Nine nights and eight days with their mother. In Re Y HC 2004 In Re Y HC 2004 4 nights with the mother 3 nights with the father. In C v D HC 2011 In C v D HC 2011 20/10 between the mother and the father Mrs Justice Theis QC Appointed in 2010
Clarification? In Re K (MK v CK) CoA 2011 In Re K (MK v CK) CoA 2011
Payne v Payne or Re Y… which approach? Where care is shared – Re Y – the status quo becomes more important, while the ‘distress argument’ may become less so. Even where there is shared care, based on Lady Justice Black’s interpretation, the guidance in Payne may still be considered, but the courts are not ‘bound’ to do so, and cases should be decided on the unique facts and circumstances. The important point is that child welfare must be the court’s paramount consideration, and the only binding ‘point of law’ from Payne is the paramountcy principle. Judicial discretion will be exercised more freely in considering the unique facts of the individual case. Arguments against leave to remove should be made in consideration of the matters set out in the welfare checklist.
Payne v Payne guidance at paragraph 85 Payne v Payne CA 2001 Payne v Payne CA 2001
Re Y and in Payne(?) – The uncontaminated Welfare Checklist Section 1(3) of the Children Act 1989 In Re K (MK v CK) CoA 2011 In Re K (MK v CK) CoA 2011
Leading Judgments - Leave to Remove – Full Text Re K (Children)  EWCA Civ 793 Payne v Payne  EWCA Civ 166 Re Y (Leave to Remove from Jurisdiction)  FLR 330 AR (A Child: Relocation)  EWHC 1346 (Fam) C v D  EWHC 335 Fam F (Children)  EWCA Civ 592 W (Children)  EWCA Civ 160 Resources at www.thecustodyminefield.com
Case Analysis Strengths and Weaknesses Part Three
Non-Relocating Parents Considering Case strengths Children’s Wishes: The children are sufficiently mature to understand what impact the move would have on their lives and wish to remain in the UK. Shared Care: That parents currently ‘more or less equally’(?) share care. Family Bonds: The strength of bond between the children and non-relocating parent and wider family including grandparents and non-relocating half/step-siblings. Relocating Parent’s Plans are Poor: The relocating parent’s plans are not thought through, and in particular their contact proposals are impractical/unworkable. Welfare Issues: If Residence is a ‘live issue’ / there are welfare concerns regarding the relocating parent’s care, or the child’s welfare will be harmed by relocation. High Proportion of Parenting Time: The greater the amount of parenting time spent with the non-relocating parent, the higher the hurdle for relocation, although shared care is not an automatic bar to relocation being granted. Historic Broken Contact: Evidence that the mother’s motives are to diminish the child’s relationship with the father. A history of broken contact/non-compliance.
Relocating Parents Considering Case strengths Primary Carer: Where the emigrating parent is clearly the primary carer. It is our experience that the lower the number of nights per week or fortnight that the non-resident parent has their children stay with them, the higher the difficulty in preventing a leave to remove, and vice versa. Distress Argument: It can be demonstrated that refusal of permission will be sufficiently emotionally or psychologically harmful to the primary carer that it impacts on their care of the child (this is commonly referred to as the distress argument). Returning home: The relocating parent or their new partner seeks to return to their country of birth and/or has family in the country they wish to emigrate to. Genuine Motives: There is no intention to disrupt the relationship between the children and the other parent. Adequate standards of care: There are no concerns as to the resident parent's ability to provide adequate care. Practical Plans: The plans for the move are well thought through.
Relocating Parents Considering Case strengths Good Support Structure: A support structure exists to assist the resident parent with the child care in the new country (although this is not essential). Siblings: The children have relocating step or half/brothers/sisters within the resident parent's new relationship (the Court would rarely agree to the ‘new family’ being divided, although I’ve seen this overcome in two cases). Practical Contact Plans: The plans for continued contact with the non-resident parent are practical. Stable New Relationship: The resident parent has remarried and the child is in a new family structure. Wishes and Feelings: The child has sufficient maturity to understand what impact the move would have on their life and wishes to emigrate
General tips – Applications, Submissions and Statements Cross-Applications for Residence: If you are contesting the relocation, you must offer practical proposals for residence in the UK should the relocating parent emigrate, and include contact proposals. K.I.S.S.: Keep your arguments simple. Be careful of being distracted or diverted from your case strengths by overloading arguments with minor and unnecessary points which will not sway the outcome, or getting caught up too much in criticising the relocating parent. Your Arguments: Lead with your child focused arguments – welfare and wishes and feelings. Focus on how life would change for the child, detailing first what they uniquely enjoy in the UK, and the impact of relocation on their relationships, schooling, loss of friends, language / cultural challenges etc. Plan for Success and Failure: It is essential to have considered what you will do if you lose. Have a fall back position. Application for Prohibited Steps Order: If there is any risk the relocating parent will emigrate without your or the court’s consent. This should include a request that the children’s passports be seized. Be Realistic: If there is little prospect of stopping the relocation, you may achieve more by offering consent at an early stage in return for generous contact/shared travel costs etc.
Things to consider if Leave to Remove is granted Contact Arrangements: What is practical in terms of your annual holiday entitlement, cost of travel and accommodation (who should pay for this and is it within your financial means), where contact should take place, direct and indirect contact. Bonds: A sum of money to be deposited in a UK bank account by the relocating parent to be released in the event that enforcement of orders is required abroad. A charge on any UK based assets owned by the relocating parent might be another option. Such arrangements would depend on the parent’s financial means, the circumstances of the case and judicial discretion. Signed Section 41 Certificate: If the relocation is to a Brussels II Member Country. This should be signed by the judge making the contact order and granting leave to remove (but often this gets forgotten). A Mirror Contact Order: If the relocation is to Denmark or a country outside Europe. Try to have the order a PRE-condition of relocation. Ensure Maintenance is mentioned in the order: A consideration may be this being waived in the event the non-relocating parent covers travel costs.
Resources at www.thecustodyminefield.com Brussels II s.41 Certificate - We now provide this form in a template format. A single page step-by- step guide on how to apply for an Emergency Prohibited Steps Order. For Release October 2011