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.
Proving "Alcoholism" (Alcohol Dependence Syndrome) in Family Law: the Implications for testing in London Borough of Richmond v B and Others [2010] EWHC 2903 (Fam) (Mr Justice Moylan)
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.
In order to best instruct and interact with a court-appointed expert psychiatrist or psychological strategist in family law proceedings, your legal adviser must not only have sufficient expertise to understand how those professionals approach their task but also how the subject matter of their assessment (be it one or both of the spouses, cohabitees or parents) may also approach what is essentially a high-stakes, involuntary assessment of their mental state/personality.
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.
In this two-part article Richard Gregorian and Gavin Emerson of Gregorian Emerson Family Law Solicitors explain the difficulties with the arguments relied on by critics of Payne v Payne and explain why the focus in defending these critically important proceedings should be on ensuring due process.
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.
Following his article in Family Law Week (1) in which he argued for the greater use of non-legal skills in the family justice system, Richard Gregorian, family law solicitor, explains in more detail the practice model which enables psychiatrists, psychological strategists and other mental health care experts to have a far greater influence in determining the outcome of disputes involving children following marital or relationship breakdown whilst broadening their practice.
Richard Gregorian, family law solicitor, explains the practice model which he advocates for enabling psychiatrists, psychological strategists and other mental health experts to have a far greater influence in determining the outcome of disputes involving children following marital or relationship breakdown whilst broadening their practice.
The Implications for testing in London Borough of Richmond v B and Others [2010] EWHC 2903 (Fam) (Mr Justice Moylan) One of the more common reasons for the instruction of experts in family law cases is in the "proving" of alcoholism (alcohol dependence syndrome), harmful or problem drinking, or alcohol abuse (an issue which warrants a separate article). In extreme cases where the alcohol-related behaviour creates physical risk for the child (the stereotypical example being given of dropping the baby into hot bathwater), the facts may speak for themselves and the court able to protect the welfare of the child, through its range of available orders without requiring a formal diagnosis.Consistent with the abuse of alcohol in society, and the fact that physical manifestations of alcohol-related behaviour simply represent the tip of an iceberg, the main body of which is comprised of the emotional and psychological problems underlying such destructive behaviour, there are many more cases of seemingly otherwise "normal" working and middle class families where alcohol abuse is a concern expressed by one of the parents but where the children have not been directly impacted by its use.
It is estimated that family breakdown directly affects approximately one-third of the UK population*. Many parents who find themselves in this situation dread the English family law courts, according to Gregorian Emerson Family Law Solicitors (http://www.gelaw.co.uk ), a specialist in matrimonial and family law cases. Fears about the way the system works are particularly acute in cases where the primary carer – usually the mother – wants to emigrate overseas with the child (‘leave to remove cases’), against the wishes of the father. But the outcome of such cases may not be the foregone conclusion that most assume.
