The European Court of Human Rights has recently given its decision in a case brought by a father who claimed that court proceedings concerning the return of his child lasted so long they were a breach of his rights under Art 8 of the European Convention on Human Rights (right to respect for private and family life).
In this two-part article Richard Gregorian and Gavin Emerson of Gregorian Emerson Family Law Solicitors explain the difficulties they perceive with the arguments relied on by critics of Payne v Payne and why the focus in defending these critically important proceedings should be on ensuring due process. The second part of the article will appear next week.
Richard Gregorian and Gavin Emerson of Gregorian Emerson Family Law Solicitors argue that the focus in defending leav to remove proceedings should be on ensuring due process.
Showing how unique the circumstances can be in these types of cases, the leave to remove application was by the father in this instance and related to 2 children aged 16 ½ and 12. At 1st instance, the father was granted permission to relocate with the children even though mother had residence and was the primary carer and he only had the stereotypical alternate weekend and one day midweek contact. Both children expressed a wish to relocate to Canada with their father. Indeed after the permission was granted the eldest left so the application was essentially whether the youngest should also be allowed to relocate. That depended upon an assessment of the youngest child's needs quite separate from the understandable driver of keeping both siblings together. On that basis it was held that the child the subject of the appeal (“C”) should remain in England.
This case has attracted a lot of attention as it was viewed by critics of leave to remove as containing admissions by the judiciary, in this case Lord Justice Wall, now the President of the Family Division that the judges had got leave to remove wrong in Payne V Payne and subsequent cases which followed that very important Court of Appeal authority.
This is often quoted as the case which confirms judicial unhappiness with the current Payne V Payne discipline in deciding leave to remove cases.
This was a full appeal hearing by a father who had been unsuccessful in opposing the applicant mother's relocation application to Australia. This case is important because it looks at the effect of whether due process evidentially had been respected. There had been no CAFCASS report and the father alleged the mothers mental health had not been so serious as to persuade him from making an application to remove the child from mother’s care.
This case is important important for a number of reasons.
Following a recent intensity in the number of leave to remove cases, the case of R & another v A was decided by Sir Nicholas Wall, The President of the Family Division.
This case is another illustration of the fact that if judges have concerns about granting permission for relocation-in this case on the grounds of the applicant mother's negative feelings towards the father then it will balance out the maternal distress argument in order to allow the unique features of that case. This case was a permission to appeal case which meant that the applicant mother did not even get off the blocks in seeking to reverse the trial judges refusal to permit the child concerned to relocate in order that she could live with her English born husband who had lived in Australia for 23 years.
My client posted a blog regarding her experiences with Leave to Remove and the court process. The following is the post:
Despite the well-intentioned and very significant efforts invested by those involved in resolving private law children disputes within the family justice system (including international relocation or "leave to remove cases"), I do not believe that the critics of the system – mainly those parents unfortunate enough to be involved in it – are wholly unjustified in certain very important aspects of their criticism.
Four sisters caught up in an international custody dispute have been allowed to remain with their mother in Australia for a further month after a Family Court judge agreed to another hearing, reports the Brisbane Times.
A commercial litigator presents a highly personal view of some perceived procedural and evidential flaws in leave to remove / international relocation cases, borne out by his own experiences in successfully defending an application through the family courts.
An article by Richard Gregorian, principal of Gregorian Emerson Family Law Solicitors (www.gelaw.co.uk) and Gavin Emerson, Brief Strategic Therapist.