Leave to Remove – a (now) family lawyer’s view

The author of this article was formerly a commercial partner in a City of London firm. Having successfully defended his own leave to remove (relocation) case in 2007, he wrote about his experiences and his concerns for this area of law in Family Law Week [familylawweek http://www.familylawweek.co.uk/site.aspx?i=ed1212]. He now practises family law, specialising in leave to remove cases, drawing heavily upon the support of a psychological expert in order to replicate the commercial law multidisciplinary model for the provision of legal advice in which commercial clients demand that their legal team has an understanding of the subject matter of their practice area. In family law, this is the psychology of the individuals and of the case concerned.

In addition to a brief analysis of how leave to remove law has evolved since 2007, he further explains how this fundamental flaw may impact the case from initial client instruction to final hearing.

Introduction

In 2007, after I had successfully defended my own leave to remove case involving my, then, 2 young children in the face of legally advised hopelessness as to my chances of success, I wrote an article for [familylawweek http://www.familylawweek.co.uk/site.aspx?i=ed1212] highlighting my concerns for certain aspects of leave to remove law and practice. 

That article was published at the height of the Payne V Payne “presumption” in favour of the applicant parent. That presumption frequently led to the self-fulfilling prophecy whereby (usually, fathers) were set up to fail in their defence by their legal team giving them the apocryphal 10% chance of success. This resulted in those parents opposing relocation feeling disempowered and, therefore, disengaging from the case to a greater or lesser extent to the detriment of their defence.

That type of psychologically driven outcome is as significant as the similarly psychologically speculative (and expertly untested) construct underpinning the “distress argument”: that if the applicant was refused their relocation aspirations they would feel “utterly devastated” and project that negative emotion onto their child (thereby bridging the gulf between adult centric emotion and the child centric welfare checklist). As I argued in 2007, a parent’s ability to cope with such a relocation refusal is as individual as their coping mechanisms and, therefore, needs to be considered by a psychological expert, rather than be a matter assessed by general legal principle.

Of more general importance to parents in such leave to remove cases is the feeling of disempowerment they experience due to their child centric concerns not being understood and, therefore, their case being presented in an oversimplified manner. I believe this is due to the fundamental flaw in the practise of family law emanating from the absence of the necessary psychological (as well as legal) skill set amongst family law practitioners.

Nearly 10 years after becoming a family law practitioner and with the unique experience of being poacher turned gamekeeper (as a legally qualified litigant in the family justice system prior to my conversion to family law), it is timely to see whether my “overwhelmingly negative” experience in my own relocation case was a “one-off” or typified the experiences of many parents who find themselves embroiled in this most extreme example of “private law” children litigation.

Developments since my previous article

Before examining that fundamental flaw, how have those aspects of leave to remove law examined in my previous article changed? The answer is important since these cases have very serious ramifications for child and parent alike – the reason why Mr Justice Mostyn compared leave to remove cases to the private law equivalent of adoption cases.

In more recent cases, it is now generally accepted that the “presumption” operating in favour of a primary carer’s leave to remove application succeeding through the “distress argument” has been replaced by the need to conduct a more “holistic” analysis of the subject child’s best interests.

In my view, this change is more cosmetic than substantive. Judges have always adopted a “holistic” assessment of the facts presented by the parties in a leave to remove case, even though it could certainly be said that the distress argument became unduly prominent in their considerations.

However, my argument is that any such holistic analysis of leave to remove cases or other disputes involving children are severely impeded because family law practitioners lack the necessary combination of legal and psychological skill sets to undertake such a holistic assessment, in other words the need to understand and present their client’s case beyond the facts. Any case is more than its facts and the paucity of legal principle, which in any event can be easily departed from in any given case, does not assist in achieving such a holistic assessment.

Rather, what is unique about every case and, therefore, what needs to be “holistically assessed” is the psychology of the individuals, their personalities, interactions, communications, belief systems and conflict resolution capabilities as well as the dynamics of the relationship itself and the reasons for its failure. If they can be understood, then the client’s case can be presented far more effectively. 

Turning back to my 2007 article, my suggestion for an increase in expert psychological, child centric evidence on the issue of the distress argument and the impact of relocation on the child has not occurred. Indeed, expert psychiatric and psychological reporting, as a whole, has been pared back because of the need to make cases more time and cost efficient. That prevents the court from being informed by such an expert’s report where, in my experience, the experts, because of their skill set, approach the leave to remove dispute from an educative, holistic, and non-adversarial perspective, thereby making them more insightful and interesting reading than the usual collection of unconnected allegations and counter allegations which populate the average witness statement and fall upon desensitised ears.

Children are still not routinely independently represented in leave to remove proceedings but, from a professional experience, I do not believe that to be overly worrying. Simply having another set of legally qualified opinions, pointing out truisms from the child’s perspective is not so much informative as an admission of the lack of confidence that family law practitioners have in presenting their cases from a child centric, non-blaming perspective.

That lack of confidence is also implicit within the role of Cafcass, who I argued in that article should be restricted to reporting on their observations of the parent-child relationship only. Apart from the obvious attraction of diffusing responsibility for decision-making, it is curious why experienced judges and family law practitioners should need the opinion of a non-legally and non-psychologically qualified individual to profess what they believe to be in the child’s best interests. It is not particularly informative to have a psychological child centric analysis in a section 7 report restricted to the truism, which it repeatedly is, that the parents concerned need to put the emotional needs of the child first or of the negative impact of the proceedings on the child(ren). As with much in family law, the fragile edifice of subjective, albeit well-meaning opinion comes tumbling down with the follow-up question “but, how will that be achieved?” The answer to that question is not legally or factually based but, rather, one which can only be answered through a psychological understanding of the complex communication and relationship dynamics between the parents.

Since that article, there have been other developments which make parents involved in leave to remove cases feel even more disempowered, depersonalised and devalued at the most stressful time in their lives. Final hearings are becoming shorter, cases are being heard by (deputy) district judges rather than circuit judges, and due to limited resources in the system and the increase in the number of cases, frequently, the most passionate legal argument that parents are likely to experience in the court room relate to the length of the trial bundle and the number of pages in their witness statement. 

When things go wrong, as they frequently do in leave to remove procedure, the parents find they have even less of a voice. That is the price one pays for a system which lacks the type of accountability which occurs in commercial law. The family law marketplace is fragmented, comprising of a never-ending supply of unconnected individuals engaging and disengaging with the system and where market reputation of the judiciary/legal teams and repeat business is not a driver for improvements in professionalism nor quality of the decision-makers. Neither do insurance premiums create an upwards pressure on quality since even if there is negligence or reckless decision-making (often passed off as judicial discretion and case management powers) the outcome for the child cannot be quantified in terms of financial loss. This is a system which is unable to self regulate because advocates, who have no difficulty in agreeing with me outside of the court room that the system is a “blunt instrument”, are dependent upon the goodwill of the judiciary both personally and professionally.

Such a system is open to abuse and it regularly is. From the clumsy, albeit well-meaning, off-the-cuff comments regarding the respective roles and characteristics of men and women and their relationships, more appropriately positioned in the relationship section of a daily newspaper, to the equally destabilising attempt to gain empathy and introduce jocularity by the disclosure of their own childhood and family experiences, to clear breaches of natural justice and restrictions on transparency, it is the unfairness with which parents are treated by the legal system, not the “finely balanced” analysis of their children’s best interests which they often remember.

There is significant bullying and hubris going on in the family courts, I suspect because the system and the individuals involved in it are devalued by the judiciary. It is difficult to see how in the majority of private law act children cases, highly intelligent and legally qualified individuals are really excelling as lawyers in applying that skill set to parental disputes. Certainly, their solutions are not creative and even when they try to be so, for example, in cases of emotional abuse or parental alienation, judicial insight is invariably limited to platitudes such as “why can’t the parents get on better for the sake of the child or why can’t the parents put the children first?”……… Again, the question is “but how?” 

The judiciary should not confuse the importance of their opinion (however unqualified) with the importance of ensuring that both parties feel listened to. They must ensure that parents’ concerns are dealt with seriously, even if they are content to practise without the necessary psychological skill set to undertake the “holistic” analysis which really means to them a more balanced assessment on the facts. 

Similarly, Cafcass misconduct or incompetence is deflected as a matter for cross examination at the final hearing, not complaint and re-examination of the child(ren’s) best interests so that the report to the court has integrity. 

However, these “sideshows” pale into insignificance when one considers that there is a fundamental flaw in the family justice system. Unlike their commercial law brethren, family lawyers have no training in the subject matter of their practice: the psychology of the individuals and the case in dispute as reflected in their client’s parental behaviour, interactional, communication and decision-making function, negative belief systems about each other as well as their conflict resolution abilities and, where relevant, “clinical” mental health. 

It would be completely unthinkable for any commercial law team not to have as one of its number a lawyer or professional adviser who understands the subject matter of the transaction or litigation. A mergers and acquisitions lawyer, for example, would not only work with an employment and tax lawyer but also a lawyer skilled in the industry and contracts in which the company operated. Commercial law clients demand that.

And yet, family law practitioners dealing with the most important aspect of their client’s life, their children, and at the most stressful time of their lives, lack the psychological training, experience and, therefore, understanding of the subject matter of their practice in order to ensure that they are best supported in their interactions with the family justice system and their case is presented in the most “holistic” way. 

The family justice system’s own admissions of failure

Before I receive sack loads of mail from family law practitioners complaining about my attack on their inadequate skill set, only to be equalled by the sackloads from parents who agree that their experiences of the family justice system left them feeling misunderstood and the case oversimplified, the family justice system, itself, has implicitly accepted its own failings in resolving family disputes.

The first is mediation, through which “gateway” the vast majority of leave to remove parents will pass as a precursor to litigation. It may appear, at first gloss, that mediation is simply setting up the parents for failure in cases which are as polarised as leave to remove cases. After all, geographic separation is not something which can be easily compromised. 

Notwithstanding that, I agree that the principles on which mediation are based have much to offer leave to remove parents. In cases with such serious implications for child and parent alike, it must be right to ascertain whether parents are able to improve communication, their interactions and belief systems in order to align behind the child and support one another sufficiently either for the relocation to go ahead or be withdrawn. We have had many cases where we have achieved a consensual resolution to relocation on that basis.

However, in achieving such alignment, whether for or against relocation, there are a number of weaknesses in mediation which can be addressed if one or both parents has access to psychologically skilled advisers. First, legally qualified mediators, operating under a different marketing banner, cannot mediate the very thing that needs to be mediated for a long-term positive outcome for parent and child(ren) alike: the belief systems of the parties towards one another. 

That is something which needs to be dealt with psychologically and therapeutically, principally through improved communication between the parties outside of the mediation or court room. We are not talking here about diagnosing the parent or family therapy which is dealt with below but rather supporting the client’s communication with the other parent through giving them an objective, empathetic and non-blaming understanding of themselves, the other parent and the case. This is dealt with in more detail below.

Further, mediation will frequently give the impression that highly complex dynamics can be resolved through a simple agreement. This may mean that even though agreement may be reached, there is a considerable potential for the acrimony and dispute to continue.

Parents will arrive at mediation with potentially long-lasting and deep-seated negative beliefs systems about the motivations and actions of one another. Inevitably due to the lack of a psychological understanding of the mediator, addressing these beliefs systems will be secondary to facilitating agreement against a likely litigation outcome. Mediation, in its wish to find simple solutions to highly complex problems, offers no strategy or system to deal with future problems. Both parties have to want to find solutions in order for mediation to be successful, which is often not the case where there is unresolved acrimony. 

Family therapy is the second admission by the family justice system that a pure legal skill set is insufficient to understand and deal with the complex dynamics involved in a parental dispute through family therapy. In so far as it does address those individual and relationship dynamics, it should be applauded. 

However, as with mediation, since it is isolated procedurally and operates sequentially (mostly, after litigation has failed resulting in positions having become even more polarised, in the same way that litigation follows a failed mediation) it has several problems. First, it may be that either or both parents do not feel that they need therapy. They may agree to attend but by the very nature of the therapeutic process, being one in which the parents have to be willing to admit they have a responsibility for the problem, it becomes paradoxically flawed. This dramatically impedes the therapist’s ability to help. If the parent did not acknowledge their responsibility before family therapy and believed it was all the other person, they are unlikely to acknowledge that they have a problem after attending as they are simply attending for the purposes of proving that they are the “healthy” one.

Further, joint family therapy can be fairly described as the last resort “long grass” into which judges kick difficult cases. It should not be. In an area of law where the emotional and psychological make-up of the parties is central, psychological and therapeutic principles should be applied from the beginning. 

Further, parents may have underlying family issues which can be addressed in family therapy but that does not necessarily mean they have become any more empowered or psychologically aware to deal with disputes. Family therapy also has the distinct disadvantage of not being focused on achieving binding legal agreements or outcomes as with litigation.

Although litigation provides certainty, there is no guarantee that it will address and improve the underlying conflict between parties which is likely to re-emerge like a weed which has simply had its head chopped off rather than exposing and dealing with the root problem.

Applying a joint legal and psychological approach throughout the case in order to maximise the principles of mediation, litigation and family therapy throughout leave to remove disputes

By possessing joint legal and psychological skill sets, the legal service that my client provides to clients from initial instruction to final hearing is able to adopt and implement the most useful principles underlying mediation and family therapy.

Having experienced a very upsetting relationship breakup, compounded by the uncertainty surrounding whether they can relocate or facing the potential loss of their child (depending upon which parent one acts for), it is clear that the vast majority of leave to remove litigants require intensive emotional and psychological support in order to best present their case. 

In the absence of such support, their consequent loss of objectivity and insight may result in a narrowing of their understanding and awareness of themselves, the other parent and the dispute. In addition to their ability to engage with the litigation process due to their levels of upset being negatively impacted, this narrow, superficial approach can lead to an inadvertent strategy based on blame and resistance towards the other party. Such cases are typified by narrow, blaming labels such as the other party being “abusive”, ”controlling” or “narcissistic” rather than a broad, objective understanding.

The very vast majority of cases in which I am involved, have the risk of simply being an expression of the self-fulfilling prophecy of resistance and control of the other party. That leads to the client inadvertently acting and communicating in such a way as to attract a negative inference from the court and, therefore, the very failure in their legal case that they wish to avoid. 

This approach works with all clients, save with the exception of those who are adult centric, strategic or intentionally manipulative which is an extreme minority in my view. Most clients simply unintentionally trip themselves up by running the case from a subjective, emotional and unaware position since they have not been educated to see the real “truth” in their case.

Once they do, this being as result of an understanding of the psychology of the individuals and of the case, not of the facts or of the law, the client is happy to retreat from blame. One of the main reasons for this is because they are enlightened to understand that, whether in the relationship or litigation, the other parent is operating with less premeditation and negative intent than they may originally believe to be the case.

In order to “re-strategise” a case in this way, it is very important not only to listen to the factual detail of the leave to remove or other children dispute but to explore and understand the underlying dynamics which make the client’s case truly unique. In order for the case to be presented in the most effective way, the process of instruction should be a learning process for both lawyer and client alike as to how the underlying facts inform a deeper understanding of the case, not simply standing alone.

Dealing with a client’s instructions from a psychological perspective also provides an opportunity for the client to obtain an emotional and psychological understanding of why the relationship has failed. As a result of the client understanding their dispute in a more objective manner, they are less likely to blame and be more willing to improve communication with the other parent. Not only does that increase the chances of reaching a consensus in the legal case at an early stage, but it can lead to a long-term improvement in the parents’ relationship. Such an approach, results in a more creative, unique and, therefore, attractive case to Cafcass, any expert and the judge.

Particularly when anxious, there is a tendency for a client to communicate to their legal advisers what they believe they wish to hear. Guided by the adviser who does not possess such a combined skill set, the client will see their role as an information resource only, communicating facts, dates, events and more facts! Conversely, their solicitor will compound the problem of limiting their client’s case by seeking to demonstrate their value in the only legally skilled way possible: through their ability to recollect and argue the facts in order to “out prove” the other side’s case. 

It rarely, if ever works that way. Virtually every fact in family law can “cut both ways”, depending upon which parent’s case the child centric decision maker finds the most persuasive on a “holistic” analysis, including the emotional and psychological make-up of the parties.

If the legal adviser is not able to process the client’s concerns at this deeper level of psychological processing, the client will be left with the feeling that something important has still not been communicated regarding the case. After all, their legal problem and its underlying dynamics are far deeper and more complex than the summary of the facts into which they are invariably straitjacketed by their lawyer. 

A mastery of the facts and the construction of a credible relocation plan in any leave to remove case is a given. However, those facts should simply inform and support the more important psychological perspective of the case which will improve communication, chances of agreement and litigation outcome. A failure to move beyond the facts completely misses the opportunity to maximise the client’s position by offering a full and informed understanding of their experiences.

Psychological experience at this stage is also important to overcome the natural inclination for a client to seek to avoid to express information which may be painful to access but which can dramatically enhance their position through a deep understanding of the case. Clients also need to be encouraged to understand the value of any facts which they may, incorrectly, believe may be detrimental to their case from a legal perspective, even though from a psychological perspective they hold the key to understanding the entire case. 

If not addressed, such undisclosed feelings and beliefs systems may bubble to the surface during litigation, thereby attracting a negative inference, because they have not been expressed and explained throughout the case. 

The court is bound to take any growing tension or dysfunctional communication into account. Accordingly, the typical advice from family practitioners that clients should not communicate directly is extremely unhelpful as it can escalate the acrimony and possibly give rise to a negative inference on their own client, for example, that they have something to hide, are being resistant or are highly acrimonious. 

From our experience, clients irrespective of where they are within the litigation process need support and guidance to enhance and increase their communication with the other parent. Whether or not this leads to initial understanding by the other parent or a reduction in the emotional intensity of any ongoing acrimony, it is fundamental that during this process a framework for communication is established. Failing to acknowledge this means that from our experience, irrespective of the judgement on whether or not leave to remove application is allowed, there will remain a latent underlying conflict which is likely to damage the party's lives and that of the children through ongoing acrimony well into the future.

Time and again we have assisted our clients to express their narrative and case more objectively, transparently and with greater psychological awareness and then been informed that the other side had not even been aware of this information. It is this increase in information and broadening of the case so that blame is no longer central, which increases the opportunity of reaching agreement through an increase in productive and supportive communication and a reduction in fear and unnecessary acrimony.

This is the exact opposite of what usually happens where a solely legally qualified solicitor applies a “more of the same” strategy i.e. they seek to defend their client through intensifying their factually based arguments. Without adding any further value of the type referred to in this article, clients should not simply be expecting nor paying for such a one-dimensional “strategy”. As the judges themselves are not able to analyse a parent’s case at this deeper level of processing, they will simply respond to that fact driven, adversarial strategy by switching off and complaining that the child’s wishes are being lost under the weight of paper reflecting parental acrimony. 

This increase in effective communication also pays dividends in relation to the instruction of experts and the drafting of formal witness statements, both of which are more effective if there is less blame and more high-level understanding of the interactions between the parties. Fact findings and alcohol, drug or mental health testing are fallible and will only result in a “snapshot” (at a point in time), superficial understanding of the parties and their dynamic. In the absence of understanding and presenting the context of the individuals and of the relationship enabling a deeper understanding of the case to be communicated in correspondence and witness statements, they simply become another blunt instrument in which to seek to understand complex family and dispute dynamics.

As a caring professional, an expert psychiatrist or psychologist, is more interested in the prognosis, long-term outcomes and the potential for improvement through such a deeper understanding of the individual and the family than focusing upon the factual case history or of the existence of blame and counter blame. 

Similarly, it is my belief that judges do not approach cases from solely or even mainly a legalistic or factual foundation (which they know, from experience, will have been set out in the most favourable way by a parent’s legal team) but rather how clients present in the witness box. Being desensitised by the same type of allegations and blame they see on a daily basis, it is my view, that they are more guided by the emotion and psychology of the case than witness statements which simply contain a series of allegations and counter allegations thereby limiting a deeper understanding of what really has gone on and where the best interests of the child lives in a leave to remove case. 

Judges inevitably take a particular interest in anything which reveals a uniqueness or understanding in the parental dynamic which has led to the dispute. Whatever else they are, the judiciary are human and engage with emotion, empathy and transparency far better than negativity and aggression and “inert” historic facts which they have seen numerous times before. 

Performance in the witness box will become more important as written evidence is streamlined. Of course, witness coaching is not permitted but by the time our clients step into the witness box, they have benefited from many months of being educated how to view the case from a more objective, transparent and empathetic perspective for the benefit of themselves, their child and therefore their legal case. 

Many clients have commented on how they have found their experience leading up to the final hearing to be transformative and deeply empowering in giving evidence and in general in understanding the reasons for the breakup, the litigation, their partner’s responses and reactions in the context of presenting their child centric concerns. This avoids the possibility that by the time they have reached the witness box, the clients have been so trapped in the acrimony of the case that they are unsuccessful in their leave to remove case. 

After all, emotional and psychological principles are fundamental to judicial decision-making (albeit unconsciously) in leave to remove cases since acrimony, lack of support, emotional intelligence and empathy for the child are all factored in when assessing issues of whether there is sufficient emotional support for the applicant parent to remain in this country by the parent opposing the relocation, or whether the applicant parent has sufficient insight to support the dramatic effect on the child and international contact, should leave to remove be granted. 

It has also been our experience that because clients feel that their concerns are addressed at a deeper level than negative blaming, they feel far more empowered and less anxious when giving evidence because they feel more listened to and engaged due to the manner in which they are able to deliver their concerns. 

Richard Gregorian 2 June 2017

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