Leave To Remove / International Relocation - A Lawyer’s (All Too Personal) View - 18 years on

Time for reflection on my 2008 article, 18 years on from the successful defence of my own relocation proceedings.

By Richard Gregorian, Principal of Gregorian Emerson Family Law Solicitors - a firm unique in having a fully integrated, joint legal and psychological/conflict resolution approach to children disputes

Opportunities to review the outcome of an international relocation (“leave to remove”) application are rare: 

• If the parent applying to court to relocate with their child or children (the “applicant parent”) is successful, any further litigation would, likely, occur in the country of relocation. Through a lack of emotional and/or financial resources, the parent left behind (the “respondent parent”), may be in no hurry to rush back to court. The respondent parent may face other obstacles, such as a lack of legal aid in the country of relocation or the existence of historic or future allegations, made by the applicant parent, making it unsafe for them to travel to that country for purposes of the foreign litigation. The resultant power imbalance created by the successful relocation application will leave the respondent parent wary of tugging the tiger’s tail, already convinced that the real motivation for the application was to remove them from the child’s life. 

• If the applicant parent was unsuccessful, any temptation to “punish” the respondent parent, will be tempered by the recent judicial vote of no-confidence and the drain on their own emotional and financial resources of the litigation. Further, the respondent parent would be well advised to consolidate their victory by being supportive, rather than antagonistic, towards the unsuccessful applicant parent for fear that they could always reapply. English law lacks the “with prejudice” principle in US law which prevents, in this context, another relocation application being brought by the applicant parent.

• Many respondent parents may simply concede, under the threat of relocation proceedings, as they lack these resources to begin with, rightfully scared that they will spend the next 9 to 12 months (perhaps longer) traumatised by the constant threat of losing their child.

It is even rarer for that review to be undertaken by a solicitor, who was not only successful in defending their own relocation, but transitioned from commercial law to family lawyer, as a result. 

Now, hopefully, older, wiser, and, more importantly, having my eyes opened to the fundamental problem in all children litigation: the lack of understanding of communication and conflict resolution, as a separate skill set, how have my opinions changed about international relocation and family law, in general?    

1.       Should relocation applications be possible?

I did not address this question in my previous article, as it was intended to focus on the shortcomings of leave to remove law and procedure. 

It would be very easy to take the view that, if the legislature and the courts were really committed to the paramountcy of the child’s welfare, they would insist that the applicant parent “suck it up” and respect the child’s human right to have both parents in their day-to-day life.  Whilst, at the time of my own relocation proceedings, I felt this strongly, with increased objectivity, it is indisputable that this point of view cannot be separated from the negative emotions which accompany such applications, principally, threat, fear of loss and trauma, all of which are exacerbated by the adversarial nature of our family justice system.  These feelings exist even if, as occurred in my case, the respondent parent is not forced to fund the legal fees of the applicant parent.

In any event, even without such incentives not to compromise, I strongly suspect that the existence of parental conflict, which the family justice system fails to address, would have encouraged my ex-wife’s relocation application to continue. 

In my view, and conscious of being accused of softening my opinion, now I am now part of the “system”, there are deserving leave to remove cases e.g.:

• Where there are insufficient financial resources for the separated family to survive in this country or where the applicant parent is very unlikely to get back on their feet without a financial leg up from their family. To those who argue that the applicant parent’s family should fund the applicant parent to make it financially viable to live in England, to an extent, I agree. Where the well-being of children is involved, there is no room for concepts like “he who pays the piper calls the tune”, which manifests as emotional greenmail, in the sense that the applicant’s family make it known that they will only fund the applicant parent if the relocation is permitted.  To those who say that this possibility is a luxury only afforded to the rich, I would encourage them to go the extra mile in providing the necessary financial support to the applicant parent to remain in this country.  Over time, these amounts may compare, favourably, to travel costs involved in cross-border contact and will not go unnoticed by the court.  I understand that, in an environment of parental conflict, the respondent parent, may not find this suggestion from a particularly, palpable. 

• There are exceptional cases where “happy mummy, happy baby”, does apply. Unfortunately, the judicial presumption in favour of primary carers (however hard the courts, subsequently, sought to deny its existence) as manifested in the tearful cry of applicant parents being “utterly devastated” at the prospect of their application being refused, has rather queered the pitch for any sensible discussion of the issue. In my case, for example, my ex-wife who, no doubt, unhappy at being forced to remain in the UK, was extremely successful in her chosen studies and career in this country and has built on that success in the US. 

However, like many issues relating to international relocation proceedings and, the family justice system, in general, the issue of whether the applicant parent’s distress at being refused, outweighs the child’s right to have 2 parents in their life, is, largely, a red herring.  The type of applicant parent, who is likely to become genuinely unable to function emotionally or mentally, if they are forced to live in a “strange” country, not of their choosing, is rare.  They did, after all, possess sufficient resilience to come to this country, leaving much of their emotional support system behind.  To those who argue that the applicant parent should access therapy to address their understandable distress at being refused, there are a number of therapeutic axioms that would breach e.g. the effectiveness of “involuntary” therapy, whilst the stimulus creating the distress continues (living in this country).

Rather, one example of the family justice system’s inability to address and improve parental conflict (and, so, improve coparenting for the sake of the child) is that the applicant parent’s unhappiness at the prospect of living in this country, is inextricably linked with the quality of their relationship with the respondent parent.  The extent of the difficulty is obvious where the quality of their separated coparenting relationship has its origins many years prior to the relationship ending, with the parents incompatible or problematic conflict resolution skills, being responsible for its deterioration until, ultimately, the failure of their marriage or relationship. 

Having witnessed how, effectively, Gavin Emerson, the firm’s communication and conflict resolution expert (who combines his experience as a therapist) uses these skill sets to benefit our clients, either in terms of maximising agreements or litigation case building but, in all cases, improving their coparenting, (and, although, necessarily a matter of speculation), I feel confident in answering the following 3 questions in the affirmative:

• whether my ex-wife would have been successful in her relocation application, if she had benefited from this firm’s legal-psychological approach;
• whether I could have done more to prevent the application from being issued in the first place by reducing conflict;
• whether coparenting could have been improved in the early years after her application had been refused.

• Where the applicant parent, who is the primary carer, no longer has a right to remain in this country or at least to claim benefits under a parental visa.

• Unless the impact of social media is exaggerating the difficulties, (and as the increase in such applications demonstrates), it is difficult to condemn any parent who wishes to leave the UK, due to the deteriorating social, political, economic and criminal environment - a trend last seen with BREXIT inspired relocation applications.

2.       My central concern regarding relocation proceedings and, indeed, any children dispute

In terms of:

• an applicant parent’s motivation to relocate;
• the distress argument, used by applicant parents to support their relocation aspirations;
• the ability of the respondent parent to provide emotional and practical support to the applicant parent, which is a fundamental factor in determining whether to permit relocation applications;
• the failure of a relocation application, which may otherwise have merit, due to the presence of conflict; and
• improving separated coparenting, whether or not the application to relocate is successful,

having practised family law for nearly 20 years, my overriding concern relates to the adversarial system of family justice and the inadequate skill set of the legal and other professionals who operate it.  It is a concern which applies equally to all Children Act litigation, not just leave to remove proceedings. 

Although an application to relocate, at least, requires a factually based plan to be filed (albeit the applicant parent or their legal advisers would have to be negligent to get that wrong) as with all children litigation, the success or failure of leave to remove litigation depends upon understanding, addressing and evidencing non-legal and non-factual issues i.e.: 

• the problematic communication and conflict resolution between the parents,
• the “psychology” of the parents and of the dispute between them (required to understand and improve the parental conflict),
• the implementation of the axioms and principles of child welfare and coparenting. In other words, not simply understanding the “what” aspect of the judicial plea for the “parents to get on for the sake of the children” but, also, the “how”.

The central paradox in family law is that, even though no aspect of the aetiology of the relationship/marriage or its failure, the way the parents resolved conflicts, whilst they were together or once separated, has anything to do with “the law”, the results of the failed relationship/marriage and parenting are dealt with by a legal system, where applicable legal principle is scarce/irrelevant and the facts are very rarely unique or determinative of the outcome for that family.  As I stress to potential clients when they first telephone me, I am not so interested in the facts, which despite their emotional attachment to them, can be immediately reversed because there are at least 2 sides to every argument, but rather what those facts tell me about these dynamics.  Rather, a client’s case can only be presented properly and authentically if there is an understanding of what is unique about their case: the individuals’ personalities, “psychology”, relationship dynamic and, most importantly, the reasons for and how they engage in conflict.  This is where the most effective client strategy to maximise agreement or litigation case building can be found-one, universally, based in child centricity (and mental health centricity, where relevant), empathy, inclusivity, and an absence of blame.  It is a positive byproduct of this approach , that it also deescalates parental conflict for the benefit of the children.    

As with the combined skill sets of myself and Gavin Emerson, there should be a requirement that any professional involved in family breakdown whether it be solicitors, barristers, judges, mediators, Cafcass, social workers or court appointed expert psychiatrists/psychologists have all 3 components of the relevant family law Venn diagram i.e. expertise in family law, conflict resolution and mental health.  Yet, they do not. 

In the absence of such a combined skill set and encouraged by the adversarial nature of the family justice system, family law solicitors and barristers seek to add value to their clients by “out blaming” or “out proving” the other side.  In doing so, they portray the other parent in an increasingly negative and undermining way, which is not only extremely problematic, so far as their litigation strategy is concerned but also escalates parental conflict.  Any claim by a family solicitor that they are “conciliatory” or “collaborative” or that they wish to avoid conflict because they are members of Resolution is simple windowdressing/marketing.  At the first time of the dispute, being in possession of the proverbial hammer (legal training), they see every problem as a nail (an opportunity to blame).

One of the options I considered at the time was to permit my ex-wife to relocate with my children to the USA or to emigrate, to be closer to them, but such outcomes are rendered very unlikely, where the legal and other professionals are unable to reduce parental conflict by increasing trust, goodwill and empathy between the parents. 

3.       Other difficulties encountered in leave to remove proceedings and family law in general

Although, as the publisher of my original article stated (no doubt wary of the sensitivities of their other contributors), the views expressed in this article are, necessarily, personal and anecdotal, when they appear in every case, from both my experience and that of clients who come to me from other law firms (as well as my experience in commercial law) I anticipate few, if any, detractors. 

• Children Law is not commercial law, where professionalism and client service is ensured through the risk of significant negligence claims and a bad reputation in a small marketplace of fellow professionals. The family justice system reflects the low/public sector value that society gives to children, conflict and mental health. No one will get sued for poor service.  There is always another potential client to offer that poor service to.  The “can’t do” or “tell me what to do, client” style of lawyering in family law would be completely unacceptable in commercial law.  The client is paying for a legal service to improve their chances of success, through strategic advice. As a former commercial lawyer, I ensure that I am available in the evenings or weekends, since that is not only when clients might require advice but, more importantly, support. 

• Except in a small minority of cases, family law is not a technical area of law. It does not attract the brightest legal minds, let alone any knowledge of conflict resolution, psychology, mental health or people in general, which lies at the heart of this area of law. Instead, it encourages outcomes based on personal opinions, supported by confirmation bias and, in circumstances, where the professional, themselves, becomes unknowingly caught by the dispute.  Once they are, even the basics of natural justice, commonsense or child welfare are dispensed with.  Part of any strategy for my clients is aimed at addressing these difficulties since it does not matter how good the message is, if no one is listening or the system is resisting.

• The lack of these critical non-legal skill sets, means that there is an overemphasis, by legal professionals, on the minutiae of relevant legal issues, such as the length and contents of a hearing bundle, whether you can communicate with an expert or Cafcass without copying the other side in, and the confidentiality of information in proceedings. With respect to these minor legal issues, there is a tendency for legal professionals to react, in the same way as they have in previous cases, rather than read the law.     

• Misconstruing emotion or mental health, resulting in expensive fact-finding hearings. On many occasions, I have succeeded in having these hearings vacated (even with the same judge and barristers present who directed such a hearing to occur) where it is clear that mental health or reducing parental conflict through improvements in their conflict resolution, rather than abuse or welfare, is the real issue. Except in relation to the most serious allegations relating to child welfare, their popularity reflects the otherwise limited understanding of legal professionals of the central issue of parental conflict. 

More particularly, without the requisite knowledge of conflict resolution and the therapeutic expertise to explain and support the client in changing their perspective, a client’s normal feelings of upset and anger can very easily be interpreted and misdirected as being caused by the other parent.  Such cognitive dissonance, disempowers the individual who, eventually, feels targeted and abused by the other parent, even though the issue, during the relationship, may have simply been one of their inability to express how their emotional needs should be met.  Despite very early warnings to the other side, where it is clear their client is following this destructive path (for their mental health, litigation and coparenting), as their solicitor is powerless to intervene, typically, that deterioration becomes evident through unguarded statements to the police, social services, and abuse charities, which are revealed on disclosure.

• “Queensbury’s rules” litigation, at the expense of child welfare. Even though family law is characterised by blame and opinion, which does not lend itself to a cohesive and congruent strategy, many clients will be told, by their solicitor, that they cannot be negative about the other parent for fear of attracting criticism by the court or Cafcass. However, in the context of a holistic and non-blaming strategy of the type referred to above, what might be construed as being negative, may contain crucial background information for understanding the non-factual elements of a case.  Conversely, I have experienced many situations where I am the lone voice in insisting that sensitive pieces of evidence are included in evidence because they are pivotal to the interests of the child, where other professionals and the courts seem to be more worried about upsetting the parent or issues of privacy.  Ultimately, beyond the best interests of the child, my view is that if a parent is spending a great deal of emotional and financial resource on the litigation, the least that the court can do is to insist upon litigation based on the truth.  Censorship and breaches of natural justice are commonplace in family law, which are both personally and professionally unacceptable me. 

• The court still seems to be naïve about regarding certain behaviours which, if addressed properly, would do much to encourage parents to act responsibly. Perjury or contempt of court for lying in a witness statement or from the witness box is not “a thing” in family law. This is to be contrasted with the overenthusiastic enforcement of contact orders, which often occurs without the necessity for a final hearing, even though the product of parental acrimony which the court and/or Cafcass identified but have failed to support after the litigation came to an end.  The impact of delay in proceedings does not result in the court sufficiently chastising the self appointed primary carer who uses delay to reinforce their advantage by maintaining the status quo.  The court does not punish those parents who, improperly, retain the child, and breach their parental responsibility by failing to offer sufficient contact or parental communication, prior to the first hearing, which may be several weeks or months away, abdicating that responsibility by referring to the existence of a court application.  The court also seems to be stuck in the past, in the sense of adjudicating a case, as if frozen in ice at the date of separation,  unable to understand that parents may have evolved to become better co-parents through being educated on issues of conflict resolution, child welfare and coparenting.  This may be even though several months or years may have passed since separation and, in my view, is linked to this basic blindness to seeing litigants as people, beyond the facts.  For the same reason, the court does not punish those litigants who claim abuse, when the issue is one of their understanding of conflict, beyond, expensive fact-finding hearings where the abuse is either proved or not and, in the latter case, adverse cost orders can be made.

4.       The involvement of Cafcass

In my original article, I was deeply critical of Cafcass, mainly because they lack the legal, and mental health skill sets to add much beyond observing the child interact with the parents.  Over the years, I have been more impressed, although, there are still cases where it is clear that the Cafcass officer has not read the hearing bundle but based their report on speaking to the parents only or is clearly biased. 

However, the question still remains what value do they really add in summarising the case or recommending directions in their schedule 2 and section 7 reports, which will appear in legally drafted position statements and evidence in any event.  I would say very little and my suggestion is that Cafcass transition from less reporting to more supporting.  Although the legislation exists, in the form of Family Assistance Orders, they are rarely used, through a lack of resources.  As a result, I am increasingly forced to use independent social workers to act as “parental coordinators” who support the family beyond the litigation.  I am reassured that this “great advancement in family law” of equal importance to my insistence that court-appointed mental health professionals must read witness statements from both parties, rather than assessing only on self-serving information (which should be obvious), is already commonplace in America.  

I also believe that

• where the subject child is suffering from mental health issues e.g. autism or ADHD, Cafcass should give way to mental health professionals in speaking with and reporting on them;
• there needs to be greater research into the use of letters that children are encouraged to write to judges, expressing their views, which can be extremely damaging to both them and their relationship with their parents, as well as unreliable in light of the impact of the parental conflict on them;
• subject to the above, contrary to the view I expressed in my previous article, the independent representation of the children through rule 16.4 guardians and their own legal representation, does not add a great deal to the information required for the court to make a decision. Whether or not parents are in conflict, having a third set of lawyers address the same facts from a child’s perspective, is something which the parents’ own legal representations are able to do. This would free up further resources in Cafcass, better suited to addressing and supporting improvements in the co-parenting relationship over the short to mid-term at least.

5.       The Absence of Expert Evidence

In my original article, I complained about the absence of expert evidence on 2 issues of mental/psychological health i.e.

• to test the primary carer’s claim to be utterly devastated at the impact of being refused. I made the point that as a general legal principle, the Court appears to believe that in each case (notwithstanding individuals' infinitely variable psychological make up and ability to cope), the primary carer's feelings of distress and their inability to conceal its outwards manifestations from the children is a given; and
• to better understand the impact of relocation on the child.

However, in light of the far more contentious issues involved in relocation proceedings, I do not believe that mental health professionals would add a great deal on these 2 issues.  The negative impact on the applicant parent, if refused, and the child, if relocation is permitted, is evident. 

In any event, how would such assessment make a distinction between the upset felt due to parental conflict, on the one hand and the applicant parent’s relocation hopes being refused on the other. 

Conclusion

Until the family justice system recognises that the central issue in family breakdown relates to the non-legal skill sets referred to above and does more to address them than recommending simple parenting apps or parenting programmes, the courts will always be full of parents litigating, perhaps not for the first time.  After all, no court order or agreement (including mediation where mediators are legally qualified) addresses the dispute at the required level and with the required skill set. 

Accordingly, rather than a “Court of Psychology”, which my original article proposed should replace the Family Courts, at least, in the context of critique of leave to remove proceedings, I believe what is needed is an appreciation that family lawyers, Cafcass, social workers, and court-appointed mental health professionals must have an understanding of the subject matter of their practice i.e the psychology of the individuals and the dispute between them and, particularly, knowledge of solution focused communication and conflict resolution.  This will enable them to understand the support the family need, beneath the misdirections created by parental conflict and the litigation, deescalate that conflict and address many of the reasons why they are in court, in the first place. 

Richard Gregorian - 5 September 2025