Monday, 18 January 2016

MOM OR DAD ON DIVORCE: SHOULD THIS BE A CHOICE?



Last week I represented a Father in an application made by the Mother for permission to permanently remove their children from the country. The final hearing was listed for five days. I would like to use this blog to briefly summarise the law as it now stands in this area and to address the old age question as to whether  a Father get a rougher ride than a Mother in cases concerning children. Does gender bias exist?


The extensive arguments filed on the applicable law reinforce how the higher courts have now (helpfully) unified the approach that should be taken in these cases. We now have clarity.  Without getting too bogged down in the law, the decision in a case known as Re F (a child) (International Relocation Cases) [2015] EWCA Civ 882 essentially says the court should now adopt a ‘holistic view’ of the children’s welfare. As part of the overall welfare consideration the court needs to place appropriate weight on the strength of the relationship between the Father and the children.  Essentially is it in the children’s best interests that they remain in there resident country spending regular periods of time in both parents care or move to another country where the relationship they have with the left behind parent (usually the Father) will be inevitably restricted and, in some cases, diminished completely?   


This, I hear you say, is surely common sense.


Unfortunately this was not always the way the court treated these types of applications. A strict discipline set out in the 2001 case of Payne v Payne made it very easy for departing Mothers to permanently relocate with children. If one were able to establish that a move was motivated by genuine reasons and that, to refuse the remove, would have a detrimental impact on the Mother’s emotional well being (which in turn would be felt by the children) the court was likely to permit a relocation. It, regrettably in my view, led to a plethora of decisions that meant Fathers' being left behind whilst their children moved to a new part of the world. Sure you will have holidays, telephone calls, but, as Father myself, I know this could not replace the day to day life with your children. It does not bear thinking about.


Often the difficulties with these cases lie in the complex factual matrix underpinning the legal arguments. Evidence, evidence, evidence is the message that I always convey.

 
Experts instructed to report on welfare issues and making recommendations to the court often play a significant role in the decision of the case. The judge needs to rely on ‘clear and cogent’ evidence to disagree with the recommendations made by an expert witness. Those who have been involved in court proceedings concerning their children will be all too aware of the role of a Cafcass officer.


In my view Cafcass provide a good service under incredibly difficult circumstances, however, resources are scarce and time is a luxury they do not have. This can lead to a feeling that a child's welfare has not been as thoroughly considered as it ought to have been.  As a solicitor you therefore need to consider alternatives to Cafcass as one, but many, strategic moves that may dictate whether cases of this nature succeed or fail.


One question I am repeatedly asked is whether there exists a gender bias in the decision of the courts. Do Fathers get a rough ride? Are assumptions made in favour of Mothers?

One frustrating component of the law in this area is the speed at which the wheels of justice grind. For example an allegation of domestic abuse by the Mother against the Father, whether true or not, could invoke ‘safeguards’ that mean the children’s relationship with that Father is severely restricted (even supervised) until the veracity of the allegations are tested in open court. It can take many months for a trial of that nature to take place, by which time the Father’s relationship with the children may have been damaged almost irreparably and status quos established. Even if the allegations are proven untrue the relationship could take many months to rebuild to a normal level. If a Mother in those circumstances is prepared to deny the children a relationship with their Father by advancing false allegations, it can frequently come hand in hand with episodes of brainwashing.


The question so often asked is: “if this was the other way around and the Father made an allegations against the Mother would the court deal with this in the same way”.

Fair question. The honest answer is that I am not sure. Going out on a limb I believe some gender bias subconsciously exists, however, this is more of a by-product of Mothers still taking the role of the ‘primary carer’ during the marriage or relationship. After a separation they will normally have immediate ‘possession’ of the child and this makes it easier for them to assert control over the non-resident Father and make allegations that suspend a relationship.


Going full circle to the decisions in Payne v Payne and more recently Re F, nothing could symbolise better the way the courts have evolved over the last ten years to reflect the equal status of both parents. Payne was decided in an era where genuine gender bias existed. The decision in Re F now places a great emphasis on the relationship with, not only a child’s Mother, but also their Father. The decision in Re F should not therefore be viewed in isolation but rather indicative of a wider theme to encourage children to have a proper and full relationship with both parents.


I have been lucky enough to represent both sides of the coin where applications of this nature are concerned. I have acted for successful mothers (in relocating) and successful fathers (in resisting relocation) and I conclude with this: In my view no longer does a gender bias exist. Appropriate weight is now (finally) being attached to the relationship with the Father. Cases of this nature will always involve a significant investment of time and discussion of strategy. I have lost count of the number of hours, days, weeks and months I have spent dealing with the case last week. I am pleased to report it was well worth. The children stayed in the country and an order was made providing for the children to spend equal amounts of time in the care of the parents so that they each have the children 7 nights out of every 14.


Reunite, the leading UK charity specialising in the movement of children across international borders, list me as one of only five lawyers in the West Midlands who specialise in this area. If you have any children related legal issues please do not hesitate to speak to me on a free no obligation basis on 0121 203 5309 or get in touch by email at mark.hands@irwinmitchell.com


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