Leave to Remove – Improving Due Process

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.

In the first part of this article, we considered the difficulties arising from the arguments relied on by critics of Payne v Payne and why, in our view, the focus in defending these critically important proceedings should be on ensuring due process. In this part we explain how due process might be improved. Practical issues
As much frustration can be caused to parents from feeling that their concerns are not taken seriously as with the perceived unfairness of leave to remove law.  Whilst such frustrations are understandable in the context of their necessarily subjective beliefs about their case, how the litigation is conducted is vitally important in maximising acceptance of the eventual outcome.  The following are examples where due process could be improved, not only in leave to remove cases but in all private children law disputes. 1. Maximising the use of court appointed experts
Paragraph 1.3 of the Revised Private Law Program at Practice Direction 12 B of the new FPR 2010 acknowledges that:

"There has been growing recognition of the impact of domestic violence and abuse, drug and alcohol misuse and mental illness, on the proper consideration of the issues in private family law; this includes the acceptance that Court orders, even those made by consent, must be scrutinised to ensure that they are safe and take account of any risk factors."

Such expressions of recognition may do little to assuage the anxieties of former litigants who felt frustrated that their psychiatric and psychological concerns of the other parent were viewed negatively or treated with insufficient importance.  In the context of the distress argument, a mother's case history of anxiety and depression may be superficially viewed as a reason to grant consent to prevent a re-occurrence or worsening of that condition rather than investigating the underlying reasons for those conditions, what they reveal about the individual's coping strategies in the context of very significant future life changes and as predisposing factors for the child.  The fact that the mother has received counselling and therapy may be superficially viewed as not making her "mad or bad" without investigating whether the therapy related to abandonment or adjustment disorders which may be the real driver for her decision to relocate.  In a previous article in Family Law Week, we suggested that in much the same way as commercial lawyers are required to advise clients in the context of a full understanding of their client's business, so should a family lawyer be aware of those psychiatric and psychological issues which affect the subject matter of their practice.    Inevitably, family lawyers lack the knowledge to do so and are forced to elicit the assistance of single joint experts ("SJE") in order to discharge their responsibilities to (i) provide the court with early information to determine whether expert evidence or assistance will help the court generally and the court and the parties to identify and narrow the issues in the case, (ii) enable the court to obtain an expert opinion about a question that is not within the skill and experience of the court and (iii) encourage the early identification of questions that need to be answered by an expert [1].  It is our view that the simple appointment of an SJE is insufficient to properly discharge such responsibilities. As Mr Anthony Hayden QC, sitting as a Deputy High Court Judge remarked in F (Children) (DNA Evidence) [2007] EWHC [2]:

"In some cases, family lawyers have found themselves in recent years working in the vanguard of changes in medical science.  Identifying and formulating the correct questions to, for example ophthalmologists, neurologists, paediatricians, can be a considerable challenge to lawyers who are laypeople in these areas of specialism."

One solution is for the parents to be free to instruct their own expert advisers whether or not a court appointed expert is also appointed for the following reasons:

• Subject to a contrary court order, a SJE must be jointly instructed in agreed terms between the parties 5 business days after the relevant hearing, with any dispute between solicitors encouraged to be determined by the court in response to an e-mail request, usually without a hearing [3].  The effect of that short time scale and the wish to avoid confrontation at such an early stage in the instruction, will inevitably lead to the SJE being instructed with a level of complexity acceptable and comprehensible to the legal representatives with the least expertise in the area or in a formulaic way.   Indeed, Annex 2 of the Practice Direction 25A ("Experts and Assessors in Family Proceedings"), suggests separate questions for inclusion in a joint letter of instruction to a child mental health professional or paediatrician and for adult psychiatrists and applied psychologists in Children Act 1989 proceedings, which, in all likelihood, will be argued as having more significance than mere guidance by those without an understanding of the relevant area of expertise.   It should not be for the SJE to re-formulate the instructions and questions before answering them as a way of compensating for the lack of the instructing solicitors' technical ability. 
• It is no answer to this problem that each legal representative may unilaterally pose written questions on any expert report under rule 25.6 of the FPR 2010 [4] or that the time for specificity is at cross-examination.  Experts, like any professional advisers, can be expected to defend their original opinions.   
• Legal representatives who approach the drafting of instructions with more expertise in the area, frequently face accusations of increasing delay and cost or seeking to steer the expert.  It does seem illogical, however, that in determining any dispute between instructing solicitors as to which questions to a SJE are relevant, the matter is discussed and determined by individuals, all of whom lack the necessary expertise.  This contrasts with the duty on experts themselves who are obliged to declare at the earliest opportunity any questions in the letter of instruction which fall outside their expertise, and to volunteer an opinion as to whether another expert is required [5].  
• It remains too easy for a parent with an interest in closing down the other parent's concerns about their medical history to stonewall the process by arguing that the latter's legal team lack the necessary professional qualifications to insist upon the inclusion of questions to the expert, or that they are disproportionate to the nature, importance and complexity of the issues [6]. To resolve these disputes and to improve the quality of court-appointed expert evidence, litigants should be able to instruct their own expert adviser (if necessary, initially funding the cost to do so) in order that expert support is available to advise on (i) the suitability of any proposed expert who may otherwise be chosen from a combination of the "Yellow Pages", expert directories (see below) and the uninformed choice of one or both instructing solicitors (ii) the terms of the instructions and, in particular, which questions are within the ambit of the court-appointed expert's area of expertise, do not contain unnecessary or irrelevant detail, are proportionate and reflect the function of that expert [7] (iii) any application to court necessary to settle those instructions (iv) the interpretation of any technical aspects of the expert's report which are not clearly understandable to a layperson (a feature of the expert reporting in the hair strand testing case ofLondon Borough of Richmond v B and others [2010] EWHC 2903 (Fam)) (v) the content and proportionality of any written questions (vi) the preparation of cross examination questions and the instruction of the advocate to ensure they are not at a disadvantage in asking the first question let alone any follow-up questions (vii) any application to remove an expert for misconduct or breach of their duty to the court – frequently heavily resisted by experts and opposition alike, where typically the presumption is that the application is a response to an unfavourable opinion rather than justifiable concerns about the methodology used to reach such opinion.    
• As the child would not be assessed by the expert adviser, there would be no risk of breaching the prohibition on assessing the child without the court's permission under Rule 12.20 (1) FPR 2010.  
• It is suggested that the FPR 2010 do not prevent the use of such expert advisers.  The FPR 2010 focus on "controlling" the instruction of experts, who may then be called to give evidence at a hearing on the basis of the expert reports they produce per se and through the principle of court confidentiality [8].  However, such restrictions must be viewed in the context that such professionals' expertise is never intended to form a report to the court and their use is clearly permitted by rule 12.75 (1)(a) of the FPR 2010 which allows a party or their legal representative to communicate any information relating to the proceedings to any person where necessary to enable that party "by confidential discussion to obtain support, advice or assistance in the conduct of the proceedings". 
• Such expert advisers are also important since:
  - just as there are extremely competent, objective, professional experts who acknowledge their evidential boundaries, experts also exist who bring the "doctor's orders" approach to their role, overstepping their mark by attempting to mediate between the parties, making recommendations as to the outcome, blurring the boundaries between adult and child expertise and making comments about one or both parties which are not psychiatrically or psychologically based.  This is a particular risk in leave to remove applications, where the expert reports against the background of legal principles which are more prescriptive and publicised than in almost any other area of private children law.   
  - In challenging their opinions, the SJE will always hold the trump cards of being the only person professionally qualified in the area of expertise, having formally assessed the parties and in possession of their medical records (see below).  Legal representatives are therefore at a great disadvantage in challenging the opinions of a SJE.
  - any quality control sought to be introduced into the process by the expert's regulators or professional bodies, will, in all probability not be available in time to be used in the court process.  Indeed, it is likely that such entities will postpone any investigation until after final judgment in the misguided belief that the court will spend its precious resources and limited expertise in conducting the necessary investigation into the expert's conduct rather than determining the core issue of the child's welfare.

In any event, a litigant wishing to actively participate in setting the agenda for the court appointed expert should be conscientious in filing the required expert proposal and be prepared to explain at the hearing the relevance of the expert evidence sought be adduced to the issues in the proceedings, the specific questions upon which it is proposed that the expert should give an opinion and a statement of whether or not the expert evidence can properly be obtained by a SJE [9]. 2. The obtaining of mental health assistance for a child during leave to remove litigation
In the high-stakes environment of leave to remove proceedings, it is easy for the child's interests to be subordinated to the attempts of one or both parents to build a case using expert evidence – this being the justification for the various prohibitions and restrictions relating to the use of experts in Parts 12 and 25 FPR and Practice Directions 12G and 25A.However, the tightly controlled environment for experts has the potential for creating a paradox because of the understandable parental reluctance, particularly in the face of opposition, to obtain genuine psychiatric, psychological or therapeutic assistance for the child the subject of the proceedings which may be caused by the stress of the litigation on the family.   The resistant parent may argue that:

• Rule 12.20 (1) FPR 2010 prohibits a child from being medically or psychiatrically examined or otherwise assessed without the court's permission.  However, that prohibition only relates to an assessment "for the purpose of preparation of expert evidence for use in the proceedings" –  not for genuine medical or therapeutic reasons.  The purpose of such an assessment is not to obtain evidence and consequently any report would not require the court's permission under Rule 12.20 (2) FPR 2010 if, indeed, disclosures or other important information came to light which it was in the best interest of the child to adduce to the court. 
• Rule 12.74 (1) FPR 2010 prohibits an expert from being instructed "for any purpose relating to proceedings" without the court's permission.  However, consulting such a mental health care professional is for the purpose of seeking treatment, not case building. 
• A mental health care professional is not permitted to be informed of information relating to the proceedings, thereby denying them a full case history because rule 12.73(1)(a)(vii) prohibits for purposes relating to the law of contempt of court information relating to the proceedings being disclosed except (where relevant) to "an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings".  However, provided the assistance is for medical or therapeutic, rather than evidential, purposes a full case history may be given by virtue of paragraph 1.2 and 2.1 of Practice Direction 12 G (Communication of Information).  Those provisions state that, subject to any contrary court direction, a party to the proceedings may disclose any information relating to the proceedings to a health care professional or a person or body providing counselling services for children or families to enable the party or any child of the party to obtain healthcare or counselling.  Whilst for these purposes a "health care professional" is defined as a registered medical practitioner, clinical psychologist or child psychotherapist, "a person or body providing counselling services" would include any individual or institution providing psychiatric or psychological advice to the child or parent.

3. Availability of medical records
The difficulties in instructing and challenging experts may be exacerbated by the practice of denying the parties sight of the other's medical records.  The universal practice prefers the more palatable system of having the expert obtain them directly from the respective parents' care providers and leaving it to the expert to determine which medical records are relevant for their report.  The use of such a "black box" approach is consistent with an overreliance on court appointed experts to "plug the gaps" in the parties' technical expertise.  It denies the legal representatives the opportunity of properly articulating the concerns they wish the expert to address, and may present an almost insurmountable obstacle where the thoroughness or integrity of the expert's work product is in question.  Requesting the expert to produce a summary of each party's medical record in his possession, whether relevant or not, in order to give the parties a degree of comfort, is an unnecessary compromise.  If there is any concern about irrelevant, perhaps very personal, information being abused by the other party, the most appropriate compromise is to permit the legal representatives, alone, to review the medical records for the purposes of preparing the instructions, written questions and other aspects of their client's case. In the absence of having sight of the other party's medical records, the drafting of instructions and written questions can easily be accompanied by allegations that they are being used as an opportunity to include uncorroborated and disputed evidence of what one or both of the parties believes is "wrong" with the other party or an exercise in steering the expert.  After an expensive and lengthy court process where expert evidence is challenged, it cannot be right that the expert can seek to rebuff any challenge to his report by claiming that he is the only individual in the court room who has seen the medical records. 4. General Practitioner opinion
It is a feature of leave to remove applications that both parents frequently adduce a multitude of formal witness statements and more informal letters from supporters of their position.  Frequently, because such support is no more than would be expected, its evidential value is limited.  However, frequently letters from applicants' GPs are produced not only confirming case histories (probably inadequate in themselves) but also making recommendations based on perceived welfare concerns that the GP possesses.  This was the case in W (Children) [2011] EWCA Civ 345, where in allowing an appeal by the applicant mother against refusal to relocate out of the jurisdiction, the President regarded a letter from the mother's general practitioner as highly relevant [10].  In addition to setting out an extremely vague case history relating to depression and/or counselling, the general practitioner made a ringing endorsement for relocation combined with a plea for her opinion to be taken into account in permitting it [11]. Consistent with their status in society, it is tempting to attribute great significance to such opinions.  However, it should be remembered that frequently the GP, who has at that time a continuing professional and caring relationship with the litigant, is only reporting on what they have been told by the litigant and may have no useful insight beyond that the patient has had the good sense to carefully craft what they say to the GP and/or has not visited the surgery intoxicated or otherwise displaying behaviours alleged by the other parent.  Invariably GPs neither have the time, facts, nor adult centric or child centric qualifications to be making any such recommendations.  Indeed, and unsurprisingly it would seem that the GP in W (Children) did not recommend a permanent relocation to Australia as a treatment plan  for depression prior to the commencement of the leave to remove proceedings in the case.  5. Mediation in cases of leave to remove
The effect of Practice Direction 3A FPR 2010 (Pre-Application Protocol for Mediation Information and Assessment) is that, except in limited circumstances, before applicants for leave to remove commence proceedings, they are expected to attend mediation. Mediation has always suffered a problematic relationship so far as leave to remove cases are concerned.  The conditioned helplessness that certain advisers create for fathers through giving the usual 10% chance of success based on Payne v Payne even before they have fully understood the case before them is typically replicated by mediators whose purpose is to seek agreement outside the court process but based on what they perceive from to be the likely litigation outcome from an application of Payne v Payne.It is, therefore, little wonder that the summary application of the Payne discipline in the course of mediation invariably results in the dispute being approached as a discussion about international contact.  Respondents must also be aware of the prejudice that mediation can cause to their defence.  Any concerns raised by the mediator or respondent about an ill-thought out, chaotic or otherwise defective emigration plan in confidential mediation sessions, undoubtedly, will be "cured" by the time the applicant files their evidence.  Any negative inferences about the parent's decision making will be offset by claims that the respondent's inclusion in the planning process is symptomatic of the applicant's willingness to be a cooperative parent.  In such important cases, where the applicant parent's resourcefulness should be under scrutiny, the court should be sympathetic to any respondent who does not wish to mediate their caseas a matter of principle. Respondents appear less able to prevent the unfair practice of permitting the applicant two or three attempts at perfecting their plan, frequently with an element of judicial assistance and the granting of temporary leave to remove for the purpose of extended fact-finding trips (under the guise of holidays) near to the final hearing at which the respondent parent may have his contact with the child significantly or totally impaired. As with all family disputes, discussion and agreement should occur so far as possible between the parents themselves, with formal mediation being the last resort prior to litigation, and only after the parties have failed to agree between themselves.    6. The relationship between leave to remove and immigration approval
In response to the global economic meltdown, many countries, particularly those English speaking countries which are the most common leave to remove destinations, have reduced their immigration quotas and/or delayed processing times.  Frequently, without the right type of sponsorship, there can be a delay of one or two years, possibly longer, between the court giving permission and eventual departure. It is difficult to convince a father in such cases that he is not involved in artificial litigation based on out of date facts and reports or that the application will not simply be waived through on the basis that without the court's permission the mother would be unable to commence the visa application process or begin looking for employment in order for their emigration hopes to get off the stocks. Even if it were possible for the father to consent to the issuing of a visa to get the ball rolling, whilst objecting to the leave to remove application, as a response to this inevitable lowering of the evidential threshold, few fathers would be willing to do so.One solution is for a review hearing to be set down closer to the time of departure so that at the very least (and acknowledging the emotional and financial disadvantage of scrutinising the entire case again) the case can be revisited by the court on the material facts as they are likely to be at departure, including potentially the changed wishes of the now older children.Support for such a solution can be drawn from the Court of Appeal in S (Children) [12], an appeal against the court's permission for the applicant father to relocate with his two sons to Canada (even though he was not the primary carer).  Between the granting of permission and the appeal, the eldest son, aged 16 ½, left to Canada and it fell to the Court of Appeal to decide whether, in these new circumstances, the permission for the younger boy (aged 12) to relocate should be revisited as he no longer constituted an inseparable sibling unit with his brother.  In light of these changed circumstances the Court of Appeal performed many of the tasks of a trial court including adjourning the appeal hearing to facilitate a further report from CAFCASS and making provision for the parents to file updating witness statements. 7. Local knowledge
Typically, a father will spend a great deal of time researching publicly available information in order to challenge the mother's emigration plan, itself typically a summary of publicly available information which would not disgrace a travel agent's brochure in its levels of gushing overstatement.  Given the opportunity, a father would wish to put before the court information concerning the mother's plan which could only really be in the direct knowledge of a person with an intimate knowledge of the location of emigration but which could have a crucial impact upon the outcome of the application.  Anecdotal examples include properties clearly not lived in by the mother's support system, barbed wire or metal detectors in proposed schools which are not evident from the prospectus or the local chapter of Hell's Angels in the next block, the five-minute walk to school (as the crow flies) which actually turns into a much longer bus ride unless crossing the equivalent of the M25 appeals.  Private investigators are expensive and frowned upon by the courts.  CAFCASS lack the manpower and resources to be investigating the suitability of the intended locality. [13] A direction by the court for CAFCASS to investigate matters in the country of relocation as happened in H (A Child) [14], where the final hearing was adjourned in order to facilitate a CAFCASS officer's investigations in the Czech Republic, will be as rare as a hen's tooth [15].  In this day and age of global mobility, fathers fortunate enough to have contacts in the proposed locality of emigration who can speak from practical experience should be free to adduce that evidence without it constituting expert evidence –  a nonsensical concept where relevant opinions would include the economy, work prospects, quality-of-life, transport, housing, the immediate environment, and schools amongst others.  If levels of transparency and objectivity are required, then one solution is to instruct local social work or court reporting agencies to provide the court with this information.    8. The importance of a solution for the father
Fathers tend to spend a very significant amount of time challenging the mother's motives and plans but without devoting the same resource to setting out in their evidence what specific funded proposals they have for the child if the application were to be unsuccessful and their child were to live in this country either with or without the primary carer.  In doing so, not only do they run the risk of their challenges losing currency on the basis that it may be viewed that their only option is to attack the mother's plans but they also forego the opportunity to demonstrate their own parental decision-making and ability to put the child's needs before their own or any acrimony with the mother.  9. Inadequate court time
Typically, the length of the final hearing is set down by a district judge many months in advance to ensure a diary date can be secured, and is commonly in the 1 to 3 day range.  Frequently, such time estimates prove to be wholly inadequate once the case has been fully developed and judicial reading in and judgment time become the subject of increased focus.  Once locked into a time estimate, the tendency on the part of the applicant and interim judges is to seek to retain the dates, even in the face of a mushrooming of witness and expert evidence.  Whilst judicial time is not unlimited and delaying the conclusion of these proceedings to accommodate a longer final hearing is not without its problems, a combination of judicial continuity and introducing a practice of reserving a longer period of time with any portion of it being vacated at the earliest opportunity seems far better than seeking a longer hearing at the last minute when a delayed hearing may result in greater cost and disappointment or for the hearing to be adjourned partway through. 10. Witness support
One aspect of case preparation family lawyers need to understand is the psychological make- up of their own client in order to ensure the client can be the best possible advocate for their children at the final hearing.  I am not referring to witness coaching but the fact that very frequently even the most child-centric and professionally competent clients have difficulty in expressing themselves in the witness box in what may be their most important speaking engagement.  Whilst, unbeknown to the client, judges, doubtless, make allowances for the idiosyncrasies of parents under pressure and for parents who, through their work or profession, trained their minds to interpret and express information in a particular way, the impact on parents' evidence and behaviour of such feelings as depression, anxiety, helplessness and the inability to deal with hostility may not be so clear to a judge.  It is a normal human reaction to seek to avoid confrontation but when such coping mechanisms result in a parent stepping back from their opposition or giving the impression of not caring through an inability to communicate effectively in an environment of high conflict and stress, a lawyer must be aware of the potential burden of responsibility that parent may carry around with them particularly if unsuccessful in the litigation. 11. The tendency to minimise the parties' previous conduct 
There is a tendency in what are typically long and complex cases, passionately fought, for judges to seek to reduce cost and delay by minimising the importance of the parties' historic conduct on the basis that the parties have separated and that whatever happened in the past were simply symptoms of a failing relationship. This can be particularly frustrating for a litigant who believes that what happened during the relationship is key to understanding motivations and future conduct and who already does not feel listened to by the system.  That being said, the context in which such historic events is raised is vital to avoid the kind of stereotypical allegations and counter allegations which would have judges seeking certainty in the Payne precedent. See our previous article. Accordingly it is comforting that the President in W (Children) took the view that the trial judge's failure to make essential findings of fact from the written and oral evidence in preference to taking the view that it did not matter who is to blame for past failures was the incorrect approach.  The President acknowledged that whilst the balance has to be struck so as to avoid a long and expensive enquiry into past facts, because leave to remove cases are fact specific essential findings must be made [16].  Lord Justice Elias' conflicting view in that case that a post commencement- of - litigation parental peace treaty and court ordered contact arrangements should be the starting point in assessing such cases [17] risks one or both parents not feeling listened to and is in contrast to mental health professionals who specialise in understanding the reasons for decision making taking detailed case histories even though a patient may appear to be normal when assessed.  12.  The importance of establishing a specific contact regime prior to departure
It is not intended to consider the various international conventions and principles of judicial comity that would result in an English court order granting leave to remove and specifying direct and indirect contact being recognised and enforced in the country of emigration.  As any banker will tell you, the best form of security is over the asset in the jurisdiction in which it is located.  Accordingly, an unsuccessful parent would be well advised to use as a starting point Lord Justice Wilson's analysis of English contact orders attached to leave to remove orders in R (A Child) [18].  In his judgment, he said that such contact orders are contrary to principle, as they are orders taking effect until further orders of the English court.  That is inconsistent with the fact that if the English Court grants leave to remove, at least for practical reasons, it surrenders its control over the child in question to the foreign court (Australian in this case).  The father in that case would, therefore, have to turn to the Australian court as any further order of the English court would not have effect in Australia.  Practically speaking, therefore any father involved in defending a leave to remove should research, in case it is required, the ability to obtain a local order or agreement mirroring and incorporating the English contact order into the local laws of the country of emigration.  In particular, he should research the ability to do so without the child being present in that jurisdiction so that a contact regime can be put into place prior to the child's arrival in the country of emigration.  This is particularly important since it is a matter of principle the English court is not bound to delay emigration until a mirror order is in place.____________
Footnotes
1 Practice Direction 25A, paragraph 1.3 (a) to (d) of FPR 2010.
2 At paragraph 30 of the judgment of Mr Anthony Hayden QC, sitting as a Deputy High Court Judge in F (Children) (DNA Evidence) [2007] EWHC.
3 rule 25.8 of FPR 2010 and paragraph 4.5 and 4.6 of Practice Direction 25A.
4 Paragraph 6.1 (b) of Practice Direction 25A.
5 Paragraph 3.2 (e) of the Practice Direction 25A.
6 Paragraph 1.1 (2) (b) and (d) of the FPR 2010; rule 25.6 (1) of the FPR 2010.
7 As required by paragraph 4.5 of Practice Direction 25A.
8 For example see paragraph 1.7 of and the heading to paragraph 6 of Practice Direction 25A, rule 12.74 FPR, rule 12.73 (a) (vii) FPR 2010 and rule 25.2 FPR 2010).
9 Paragraph 1.11 of practice direction 25A FPR 2010 paragraph 4.3 of practice direction 25A paragraph 4.3 (c) and (f) of practice direction 25A.  
10 Paragraph 29 of the judgment. 
11 Paragraph 31 of the judgment. 
12 [2011] EWCA Civ 454.
13 In R (A Child) [2010] EWCA Civ 1137 Lord Justice Wilson acknowledged that CAFCASS are usually in no position to assess the merits of the applicant's proposals for life abroad.
14 [2010] EWCA Civ 915.
15 Paragraph 5 of Lord Justice Wilson's judgment in H (A Child) [2010] EWCA Civ 915.
16 Paragraph 120 and 121 of the judgment of the President of the Family Division in W (Children).
17 Paragraph 160 of the judgment.
18 R (A Child) [2010] EWCA Civ 1137 at paragraph 22.