International Relocation (Leave to Remove) Cases - like any other case under the Children Act 1989?

Even if I do not detect a foreign accent on the other end of the telephone, when speaking with a client, for the first time, or there is no other reason to believe that I will be acting for a parent who is involved in international leave to remove litigation, I approach every dispute involving children, as if it were a leave to remove case because:    

• International relocation cases, being at the extreme end of children disputes, provide an ever present reminder of the critical importance of any litigation involving children. The high stakes nature of such cases, so far as the child’s welfare is concerned, led Mr Justice Mostyn, to describe leave to remove cases as the private family law equivalent of adoption cases because of the very real risk that the child could lose contact with the parent left behind. However, to both the parents and any children involved, the outcome of a children dispute without any international implications may be just as important.

• Both international relocation cases and domestic children cases, being part of the same family justice system, suffer from the same systemic weaknesses, disadvantages and vulnerabilities. Principal amongst these are:

• An overreliance by legal professionals on the facts of the case, a product of their legal training. This leads to their sole “strategy” being one of seeking to win the case by blaming, undermining and “out-proving” the other side. In doing so, they have to exist in a state of denial because every fact and related argument/submission has, at least, two sides or different interpretations.  Both sides will, inevitably, rely on their “strongest points”, with confirmation bias, further reducing each side’s ability to be objective about the value of any particular fact or argument.  The difficulty is not so much a case of “he says, she says” (which relates to the frequent lack of independent corroboration in family law cases) but rather the reality that “there is your truth, their truth and then the truth”.  In addition, no single fact or argument determines the outcome of a case.  The courts have seen every permutation of the factual matrix and what may underpin a judgement on the Monday, may be viewed as irrelevant, even by the same judge, in another case, on the Tuesday.  In leave to remove cases, it is difficult to think of any, beyond the long-term voluntary removal from the child’s life of the parent, who seeks to defend the relocation application.

• A lack of understanding of the most important characteristics of the parents, as individuals and of their dispute, which makes their case unique and, consequently, far less vulnerable to the duality of any fact or argument. No single professional in the family justice system, whether it be the lawyers, Cafcass, social services or court-appointed mental health professionals, have all of the skill sets required to properly analyse and present a children case, whether international relocation or otherwise. These skill sets include an expertise in family law but also, more importantly, conflict resolution, mental health (if relevant), the “psychology” of the case and of the individuals and principles of coparenting and child welfare.  Even if these professionals have knowledge of the importance of these matters, they are at a disadvantage to this firm, as they lack the necessary skill set and professional relationship to effect the required therapeutic and educative changes in the client, on which our strategies depend. 

• My transition from being a commercial law partner into family law, was the result of, successfully, defending a relocation application and experiencing these systemic weaknesses first-hand. Accordingly, I feel great empathy for parents who are faced with the same difficulties and, who, in time, realise that the “truth” of their case is not being litigated at all and they have lost their voice.

I feel immense pride in this firm’s combined and fully integrated “joint legal and psychological approach” to children cases because it addresses these weaknesses for our clients, whether it be in maximising agreement or litigation success.  Without the creativity which this combination of legal and non-legal skill sets provides for our clients, I would simply join my fellow family lawyers in seeing every problem as a “nail” (using facts to blame, undermine or seek to “overpower” the opposition) because, having only legal training, they only have a proverbial “hammer”. 

These vulnerabilities in the family justice system are overcome by this firm’s clients as a result of the collaboration between myself, as a family lawyer, and Gavin Emerson, who is an extremely experienced and effective therapist and conflict resolution expert.  That enables him to understand the individuals involved and the conflict between them at a much deeper level than would be possible by any lawyer, Cafcass Family Court adviser, social worker or court-appointed mental health professional and for that understanding to be incorporated into a legal strategy for the client.    

The fallacy of only relying upon the facts to present a client’s case (due to the duality in their interpretation) is even more pronounced, in leave to remove cases, because of the central importance of the relocation plan.  Initially, it comes as a surprise to our clients, that being a factually based document, it is of limited value.  After all, having read legal articles or used ChatGPT (and the like) they have based their entire application or defence (as well as their emotional well-being) on setting out, in detail, every possible advantage or disadvantage of the proposed relocation (depending upon whether they are the applicant or the respondent parent). 

Of course, the facts of a case and the relocation plan have to be communicated to the court, Cafcass and any experts but it would be a truly negligent family lawyer or reasonably intelligent layperson, who could not explain, where they and the child would be living in the destination country, which school the child would be attending, how the plan would be financed and how contact with the parent left behind would be supported.  Likewise, it would be a truly negligent family lawyer or layperson who could not point out all of the disadvantages to both themselves and the child/children of such a plan, including the more infrequent contact they would have. 

In order to provide a degree of consistency, the courts have referred to the existence of different “classes” of relocation (before, subsequently, denying their significance).  The most powerful of these are the “going home” cases, where parents wish to return to their country of birth, after separation or divorce.  Next, are the “stepfather relocation cases”, where the financial stability of the new family unit depends upon moving overseas.  At the bottom of this class pile is the “lifestyle” case, where there is no need for the relocation, beyond the fact that the applicant parent believes it is in the child’s best interests.  With the realities of living in the UK in this day and age, there should not be any embarrassment about running such a case. 

A further “faux” way of giving the appearance of there being consistent principles to guide the outcome of leave to remove litigation, is reflected in the description of these “lifestyle” cases by the courts and Cafcass, as having been brought by the parent for their, rather than the child’s, benefit.  That is a rather unconvincing analysis, when every leave to remove case is brought by the parent and, therefore, justified from the adult perspective and every case results in a loss of contact between the child and parent left behind to a greater or lesser degree.

A further way of introducing some predictability in the outcome of leave to remove litigation, because of the problem of duality of fact and/or argument, was supplied by the (now, denied) presumption in favour of granting relocation applications brought by primary carers.  That presumption was based on primary carers announcing, from the witness box, that they would be “utterly devastated”, if their leave to remove application was refused and the court taking the view that the primary carer would not be able to meet the emotional needs of the child, if their own emotional needs were not met by allowing the relocation.  The concept of duality even put a stop to that as, depending upon whether they wanted to allow or refuse the relocation application for other reasons, the applicant parent was either characterised as over egging the pudding or possessing the necessary devastation but being stoic about it. 

The dangers of relying upon just the facts because of the duality of any given fact or argument is evident in the following outcomes in relocation cases:

• A parent who has only, recently, moved to the UK, prior to applying to relocate back home, on the breakdown of their marriage or relationship, could be argued to have been sufficiently happy to have left their support network and/or acquired a good support system in the UK in a short period of time.

• A parent who wishes to relocate due to professional reasons may be able to obtain equivalent employment in the UK. If the relocation is for financial reasons, then the respondent parent could defeat the application, through “cheque-book diplomacy” or argue that the child’s welfare is more important than a 25%, 50% or 100% uplift in the applicant parent’s salary. Conversely, the impecuniousity of the respondent parent, may be a bar on the relocation due to the unaffordable cost of maintaining contact with the child.    

• Frequently, a job based application is, in fact, the solution to ending conflict with the other parent (i.e. part of the relocation plan they know is required) rather than the real reason for the application, something which is very easily revealed through documentary disclosure and/or cross examination.

• A clearly alcoholic respondent mother being referred to as the “better parent” (if she could, only, stay out of rehab) because of a dislike of the applicant father in order to refuse his relocation. Similarly, two successful professionals (in a stepfather relocation case) were refused permission to relocate because the court could not face taking away the child of the alcoholic biological father, who had limited contact and resources, because, through his alcoholism, he had lost so much already.

So what aspects of an international relocation case or, indeed, any dispute involving children are not vulnerable to the principal weakness in any parents’ case: the duality of every fact/related argument.  The answer is, those aspects which depend upon an understanding of the parents, the case and the reasons for the conflict (both individual and joint) at a far deeper level than their literal interpretation.  In other words, one has to go “beyond the facts”.  This is only possible through:

• An understanding of the parents and their psychology-what makes them unique as individuals;

• An expertise in conflict resolution, enabling an understanding of the difficulties that both parents have and continue to experience. This is necessary to resolve the conflict or, at least, present the truth of the case in a way which is not masked/misdirected by blame, escalating acrimony and parental conflict which, due to a lack of understanding, is treated by the family justice system as an unsolvable “plague upon both their houses”;

• An expertise in mental health (where relevant) and the boundary between that and parental conflict. A bad case of conflict has many of the same characteristics as mental health and needs to be dealt with very differently in litigation, both substantively and procedurally;

• Detailed knowledge of coparenting and child welfare and how to effect positive change and increased knowledge in the client;

• Most importantly, incorporating the above into a unique strategy for each client (supported by the necessary changes in the client).

The result is a unique, compelling and, from our results, unbeatable strategic case for each of our clients.  Being founded in child centricity, inclusivity, empathy, an absence of blame/undermining/acrimony and, where relevant, axioms of mental health, child welfare and co-parenting, our strategic approach is deeply attractive to intelligent and creative professionals (whether it be the court, Cafcass, social services or court-appointed mental health professionals), who are, otherwise, forced to listen to parents blaming each other day in day out.

Judges, like the rest of us, do not like conflict.  Parental conflict is emotionally and psychologically damaging for the children, misdirects the dispute away from the paramountcy of the children’s welfare, leads to the parents being less sensitive to the children and creates so much “white noise” that the uniqueness of their case is lost: their case becomes another example of parental conflict.  Running such a case, therefore, becomes a waste of emotional and financial resources because the truth of the case is concealed and the court cannot do anything about the “default interpretation” of parental conflict.  

The principal reason for refusing international relocation applications is parental conflict.  If such conflict is not a feature of the co-parenting relationship before such an application is launched, it certainly will be after.  Accordingly, each case has to be carefully and skilfully understood and presented by using these legal and non-legal skill sets so that the issue of parental conflict can be placed into context and, for the applicant, the issue does not become a self-fulfilling prophecy, leading to the failure of their relocation aspirations.