LTR

							   Leave to Remove: A Lawyer’s (all too
              personal) view
A commercial litigator presents a highly personal view of some perceived
procedural and evidential flaws in leave to remove cases, borne out by his own
experiences in successfully defending an application through the family courts.


Introduction

As an insolvency partner in a City firm, I was very accustomed to advising clients on
the many legal issues resulting from corporate failure. However, as the father of two
very young children born to an American mother, nothing I had experienced in my
many years of commercial practice quite prepared me for the experience of being
involved in this most shocking by-product of marital failure.

Although I successfully defended my wife's application to permanently emigrate with
our daughters to America and obtained an order for shared residence, the "holy grail"
of non-resident fathers who wish to be involved in their children's upbringing, my
personal experience of the various agencies and Family Court judges I encountered in
the sixteen months prior to the Final Hearing in August 2007 was overwhelmingly
very negative. Indeed, how poorly both my children and I had been served during that
time was clearly demonstrated by the judge presiding at the Final Hearing who, by
contrast, made it clear that he realised the importance of the outcome to both parents,
very quickly focussed on the incongruencies in my wife's case which previously had
been ignored and welcomed the existence of corroborative evidence however
upsetting it proved to be to my wife. That being said, I am very aware of the very
vocal and sometimes misguided criticism that particularly estranged fathers direct at
the family justice system and those who operate it.

Accordingly, the purpose of this article is to highlight certain features of a "typical"
Leave to Remove case which to the "outsider" seem counterintuitive and,
consequently, give those critics of Leave to Remove (LTR) further encouragement
beyond that created by the perceived unfairness in subordinating the children's
relationship with both biological parents to the primary carer's "distress argument".
The "distress argument" refers to the emotional and psychological distress the primary
carer will inevitably feel if their LTR wishes are refused, and which will inevitably
result in an uncontrolled impairment of their parenting skills to the disadvantage of
the child.

Resolution estimates that there are approximately 1200 Leave to Remove ("LTR")
cases heard by the English courts each year. That figure does not, of course, include
the very significant number of cases in which the respondent parent accedes to the
primary carer's wish to emigrate, having received the usual legal advice as to their
limited chances of successfully defending the primary carer's LTR application should
it reach Court, and weighing it against the financial cost of litigation and its effect on
their ability to fund any overseas contact which the Court gives them should the
defence fail. With the growth in immigration and international marriages, these cases
will only increase. Those parents who unsuccessfully defend LTR applications (75%
according to the reported cases, but anecdotally as high as 90%) face the permanent
impairment or termination of their parental role.


The Absence of Expert Evidence

The central significance of the "distress argument" to the primary carer's case and
how to demonstrate it to CAFCASS and the Court will be known by even the least
savvy applicant. Accordingly, I found it strange that the Court does not, as a matter of
course, obtain specific psychiatric and/or psychological expert evidence as to this
most critical of issues. Rather, 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.
Conversely, any speculation by a trial judge that the primary carer will be able to cope
with life in England if their LTR is refused is likely, on appeal, to be relegated to the
realms of mere "judicial hope". In my own case and that of several others where the
LTR application has been successfully defended or where the former spouse has
returned to England after being granted LTR, this hope has not proven to be overly
optimistic. In one of those cases, a bizarre chain of events was set in motion that
resulted in a successful application by the father who had followed his child to Spain
after LTR was granted, for the return of the child from England where the mother had
subsequently taken him.

This refusal to permit expert evidence encourages those who accuse the Family
Courts of lacking transparency. Such reluctance may betray the reality of the situation
that the applicant's statements to an expert concerning their distress may be as self-
servingly untruthful and manipulative as those in the witness testimony. If this is the
reason, and with so much at stake, it seems to me that rather than affording the
distress argument central significance in LTR, it should be given the same weight as
any other piece of subjective, uncorroborated, self serving, and necessarily
speculative evidence.

The need for expert assessment is clear when one considers the typical manner in
which an applicant seeks to demonstrate distress: most commonly that they are
isolated, having failed to integrate themselves into any social or parental network in
this country which could offer them much needed emotional and practical support.
Further, if, as seems to be a reasonable proposition, distress is a manifestation of an
inability to cope with one's environment, how will those same coping mechanisms
perform when they are put under the very significant financial, practical, and
emotional stresses following divorce or separation and as a single parent in a country
which the applicant has not lived in for, perhaps, many years or at all. Emigration may
further add to the primary carer's anxiety if, as is often the case, they are also forced to
work full-time after many years looking after the children. This may happen because
the financial support of the non-resident parent is now diverted from the family into
excessive travel costs at a time when they have also decided to settle for a lower paid
position in order to give them the flexibility to see their children. The Recent Life
Events Questionnaire used by Social Services to evaluate coping mechanisms may be
a useful starting point. Rather poignantly for LTR cases, where a successful
application results in the child losing one of the two most significant people in his or
her life, the Background section of that Questionnaire states "Most negative life
events can be seen as involving the experience of loss" and "Losing a parent at a
young age, particularly before 11, has been reported to independently influence well-
being in both childhood and adult life".

Most significantly where neither CAFCASS nor the Courts are able to exercise any
long term influence over the success or otherwise of contact, expert analysis of the
applicant's co-parenting values and belief systems also seems to require expert
scrutiny. There is, of course, an obvious disincentive for the applicant to show the true
extent of any negativity they may harbour towards the other parent. Whilst not
claiming to be an expert in psychology (albeit its importance in my case cannot be
underestimated) it does seem revealing to me how:

(a) many applicants with a history of obstructing contact promise to literally throw
open the doors of their foreign home should they be granted LTR.

(b) many LTR applications follow closely on the non-resident parent seeking to
formalise their own parental rights with the court.

(c) an applicant who the law treats generally as being unable to control their emotions,
has the self awareness and objectivity to put aside the inevitable acrimony that
accompanies LTR applications in exercising their parental responsibility to decide
whether LTR is in the children's best interests.

In view of the paramountcy principle and the absence of independent representation
for the child, I was also surprised to find that no expert child psychology evidence is
requested by the Court, unless there is a specific need requiring it (for example,
significant parental conflict or the LTR's effect on any special needs they have). There
are a number of factors unique to a child which warrant careful expert scrutiny. These
include the child's ability to cope with the anticipated parental distress, their new
lifestyle and the consequent loss of education, friends and family in this country, as
well as the quality of their parental attachments. Such expert analysis is even more
important when the child's wishes are invariably expressed against the likely
background of coaching and parental alienation.

In the absence of such expert scrutiny, the necessarily more superficial analysis of the
facts and associated conclusions in certain of the reported cases give further
encouragement to those that accuse LTR of being too primary-carer (rather than child)
centric:

   •   Rather than being a significant factor in supporting LTR on the basis that
       refusal will result in the primary carer suffering a reoccurrence of depression,
       a history of parental depression may be a factor increasing the predisposition
       of the child to depression (no known treatment for which includes the loss of a
       parent) or symptomatic of inadequate coping mechanisms which, as discussed,
       will be required as a single parent in the country to which they emigrate.
   •   In seems counterintuitive that negative feelings towards the parent to be left
       behind (even if resulting in child abduction or repeated breaches of contact
       orders), are not universally treated as a warning sign of the increased
       likelihood of obstructive behaviour once abroad and outside the control of the
       English Court, but are viewed as further justifying the need for LTR.
       According to this theory, when "happy" and divided by an ocean, the primary
       carer will be more amenable to complying with their contact obligations and
       portraying a positive image of the other parent. Such twisted logic feeds on
       itself as the commendable wish to minimise child abduction is advocated as a
       reason for justifying the ease with which LTR is granted.

   •   Parents "left behind" can, apparently, conduct their intimate parental
       relationships with children as young as three years old by webcam, email and
       telephone, even though most, if not all, children are unable to communicate
       effectively in person by that age.

   •   Through cheap travel, the world has apparently become a smaller place, but
       only for a parent seeking to balance the cost of international contact with their
       limited holiday time.

   •   The enforced infrequent but longer periods of continuous contact time that the
       parent left behind will enjoy during school holidays if LTR is granted is
       apparently of better quality than the frequent, short periods if it is not
       (notwithstanding that they will miss the children's school activities).

   •   Children form their primary attachments before the age of two years of age, so
       once past that magical milestone, they would not suffer from the loss of
       frequent contact with the parent left behind. It is surely common sense that
       each would treat the other as near strangers.

   •   Lastly, that the parent left behind should take comfort from the judicial
       assurance that children will not be children for ever and will in time be able to
       choose where they live (something that one can, of course, say of being a
       parent).


The Role of the Children and Family Court Advisory and Support Service
("CAFCASS")

Unlike an ongoing domestic contact dispute, CAFCASS's involvement in LTR cases
is likely to begin and end with their court welfare report. Their report is the earliest
indication to the parties of how an "independent" person, with seemingly great
influence with the ultimate arbiter of the case, views the respective merits of their
case. It is, therefore, of great concern that a simple fact seems to have been
overlooked: CAFCASS possess neither the skills nor the time to conduct proper
investigations into the impact of LTR on the children.

As former probation officers and social workers, CAFCASS officers lack the legal
skills to effectively cross examine a primary carer on their reasons for LTR and the
genuineness and extent of their distress argument (and, conversely, the respondent
parent's motivation for defending). That is better done (within the limitations outlined
above) through expert cross-examination supported by the judge's inquisitorial role.

CAFCASS also lack the training in child psychology to expertly opine on a child's
relationship with their parents, to determine their wishes and feelings or the impact of
LTR on them. That function should be clearly carried out by a child psychiatrist or
psychologist (especially if the children are young). Moreover, CAFCASS and the
entire family court system lack any meaningful research on the impact of LTR cases
on children, their welfare, mothers, fathers, contact and the whole range of issues
associated with the matter.

Frequently, a CAFCASS report recommends either for or against LTR being granted.
Several trial judges have made it clear, in my view quite properly, that to do so is to
usurp the function of the Court: the practice continues.

Judicial criticism of CAFCASS in the reported LTR cases bear testimony to some of
the wholly inadequate reporting undertaken by them where, as a consequence, the
judge has refused to follow the CAFCASS officer's recommendation. Since many
months may have passed between their involvement and the Final Hearing, and cross-
examination may not sufficiently demonstrate their reporting errors, there is no
effective "quality control" of their judgements and recommendations.

In my conversations with them, CAFCASS expressed surprise that an applicant
seeking LTR was not required to set out a life plan for themselves and the children if
their application failed. Such a plan may go some way to ensuring that after the
financial and emotional carnage of LTR litigation, the best interests of the children,
are considered, whether or not LTR is granted and, crucially, independently of the
primary carer.


Independent Representation for Children

In advocating their diametrically opposed positions, both parents claim to be the
guardian of the children's best interests. However, in such bitterly fought litigation,
any parental integrity is soon reduced to a "win/lose" scenario with each party
litigating their best points against the other. Each party may be fighting for their own
survival or way of life rather than what is in the interests of the child.

In such an environment and, particularly since the Court of Appeal has clearly aligned
itself with the primary carer's position without specific expert advice, it is desirable
that the children are independently represented. The individual child's case for both
biological parents or, alternatively, the importance of the distress argument could,
with the assistance of expert testimony adduced by the child's advocate, be presented
to the Court in a more independent and, therefore, credible manner. It would, for
example, be an interesting starting point for any guardian of the child's interests to
explore why the experience of loss to the child which is at the heart of the primary
carer's distress argument (of their home, family and friends) should be any more
damaging than the loss of one of its biological parents at the hands of the other which
he or she will experience if the LTR application succeeds.
Such representation would also do much to satisfy the left-behind parent's
understandable need that, even if they are unsuccessful, justice was seen to be done by
the presentation of the child's case.


The advantage of the primary carer in LTR cases

A great deal of the criticism in LTR cases aimed at the Court's clear bias in favour of
the resident parent would be defused if the present preference of residence and contact
evolved into a system of shared parenting (as distinct from shared residence). As a
newly separated parent with nearly half the week with my children, I feel desperately
sorry for those, predominantly fathers, who overnight move from involved co-parent
to one having alternate weekend contact or worse still find themselves in a
(supervised) contact centre solely on the basis of the primary carer's allegations. The
primary carer receives a nearly insurmountable head start in LTR litigation as a result
of the accepted principle that, on the breakdown of marriage, the children revert, de
facto, from the joint custody of both parents to the sole custody of a single parent,
typically the mother This is an old fashioned and discriminatory view of parenting
which manifests itself in numerous areas of the family justice system where the
starting point appears to be that fathers are to be given minimal contact with their
children coupled with full time spousal and child maintenance or where their contact
can be restricted on the basis of false allegations or maternal anxieties as to the
father's involvement. It is truly shocking that Ward LJ felt sufficiently motivated to
make the observation on the issue of parental alienation which he recently did and that
other senior judges have felt it necessary to criticise their own family justice system.
Whilst the Courts maintain that they factor in the circumstances in which one parent
became the primary carer, several of the reported cases demonstrate that abduction
and obstruction of contact are not a bar to LTR but rather are viewed as further
example of the primary carer's distress. Those judges could be said to be rewarding
bad behaviour. Even when a parent enjoys or has recently enjoyed very substantial
parenting time (41% in the recent Court of Appeal case1), leading to the children
having a strong and secure attachment to that parent), this invariably proves
insufficient to counter the LTR application of a primary carer who has taken and
subsequently jealously guards their role as primary carer.


Jurisdiction Concerns and the Primary Carer's ability to reapply for LTR

If the applicant is successful, LTR is permanent. Any enforcement of contact is
undertaken by the parent left behind at their expense and inconvenience in the country
of emigration. Indeed without a hint of irony, the fact that contact rights may be more
easily enforceable and LTR less available in that country than in England has been
used in support of granting LTR. Any breach of the Court approved plan by the
primary carer after LTR has been ordered is necessarily met with a shrug of the
judicial shoulders. Having forfeited jurisdiction to the country of emigration, there is
nothing the English Court can do to rescind its order where a the applicant fails to
follow their proposed plan immediately or, if they have an ounce of common sense, a
short time after they have stepped foot in the foreign country arguing, if necessary, a
change of circumstances. Undertakings, mirror orders, security funds, even temporary
LTR consents are no match for an applicant who, having largely succeeded in erasing
the other parent from the children's life obstructs contact after they have emigrated.
Even if it could order a recalcitrant parent's return, to do so would doubtless be
opposed by arguments that the resultant distress would be amplified to the detriment
of the children. Consequently, any attempt to manage or, if the move can be shown to
have been unsuccessful for the child, reverse the LTR through a process of co-
ordinated international judicial cooperation is prone to failure due to the overriding
importance of the distress argument even though such co-operation is presently very
much on the agenda.

Conversely, it is perfectly possible for a parent whose financial resources, job, and
peace of mind were disrupted by the LTR proceedings to face a second or subsequent
application due to the passage of time or a new relationship formed whilst visiting her
homeland. The fact that the primary wage earner may be obliged to fund both their
and the applicant's legal costs together with the absence of any brake on the
application through compensatory or punitive costs orders or punitive sanctions for
false allegations, means that primary carers may perceive themselves to be in a "no
lose" litigation position.


A word on "Stepfather Relocation Cases"

Encouraging parents to take individual responsibility for the numerous decisions
which lead to the bringing up of children in this country with both biological parents,
is clearly not high on the Court of Appeal's list of priorities in determining LTR. In its
quest for the perfect nuclear family, the Court of Appeal places the respondent
biological parent in the weakest position of all to defend a LTR case rather than
condemning the absence of any critical thinking by the parent and step-parent of how
they will further their relationship when the children are anchored through their
biological parent in England and when the step-parent is anchored by family or career
reasons abroad.

The Court of Appeal clearly prioritises the applicant's new relationship over the
children's contact with the other biological parent on the basis that the "new family" is
the vehicle through which the children's material and other fulfilment is aligned, as
well as providing the primary carer with the obligatory emotional, practical and
financial support 2. This is so even where the new relationship is severely
handicapped from the beginning. In the nature of such cases, the applicant and step-
parent, in all probability, will be embarking upon a second or third marriage each (if
remarriage is involved at all), perhaps shortly after their prior marriages have failed.
The applicant will have the added stress of emigrating to a new country of which they
may have no experience or support, with no career and with a new partner who, if
they are moving for career reasons, may be expected to work long hours. Finally,
there may be the need to merge the two step families together. In one recent case, two
English fathers lost their two children to the Middle East, to a step-father who had no
experience of living with even his own children. With these risk factors in play, LTR
lawyers in the country of emigration should be wringing their hands with glee.

Invariably, whilst the respondent parent's character is put under the microscope, a
common complaint is that not even the most simple of checks (for example, Criminal
Records Bureau) are carried out on the new individual in the children's lives.
Step-father relocation cases polarise those who argue on opposing sides about the
morality, fairness and individual (parental) responsibility of LTR cases. Whilst the
Courts sell the benefits of a long distance relationships between the biological parent
left behind and their children through the "better quality" time they will enjoy, what is
good for the goose is not good for the gander. In promoting LTR in step-parent
relocation cases, the Courts have held that the step-parent cannot possibly be expected
to be placed into the impossible position of having to conduct their relationship with
their new partner across jurisdictional boundaries. Rather, once the step-parent
chooses of their own free will to enter into the relationship, despite the existence of a
biological parent anchored in this country, the Courts also treat them as a victim of
circumstance, unable to control their emotions. The logic this time is that the step-
parent cannot be prevented from emigrating with their new family since his career
aspirations would be frustrated. Such frustration will, as with the biological primary
carer's distress argument, result in manifestations of uncontrolled resentment towards
(this time, another person's) children.


Conclusion
There appear to be a number of systemic problems with the way in which the family
justice system handles LTR cases. Further, LTR, as with many other aspects of family
law, appears in the vast majority of cases to prefer the primary carer as the
evolutionary nurturer.

The accepted bias in the law in favour of the primary carer is amplified by the overly
protective nature of the family justice system towards that parent, typically the
mother. In my own case, each judge and agency I encountered prior to the Final
Hearing was unwilling to respond to my repeated demands for ensuring evidence was
produced or investigated in the children's interests when that demand came into
conflict with the mother's sensitivities. In particular, due to the mother's constant
denials (supported by a belief that corroboration was impossible to obtain) it was
necessary for me to request the Court's assistance to obtain forensic evidence from the
mother. Those requests were denied on the basis of it being a "fishing expedition"
(albeit the directions judge made it clear an adverse inference would be drawn if the
evidence was not obtained by the mother). A pointless and extremely expensive game
of cat and mouse then ensued as the mother, try as she might, "failed" to come up
with the goods. With my hands tied so as to keep the mother happy, that evidence was
obtained in any event, at further great expense, and ultimately defeated the mother's
case. Whether it be video, tape recordings or any other type of evidence, the obtaining
of which routinely back fires on the father, I would suggest that the Courts should
spend more time considering what the evidence shows and why the father was
motivated to obtain it rather than how upsetting its disclosure may be to the mother.
Having spoken to numerous fathers in respect of their own domestic and international
children cases and having read the recent statements of a number of senior judges, I
remain truly shocked.

1 G (Children) [2007] EWCA Civ 1497
2. Re B (Removal from Jurisdiction); Re S (Removal from Jurisdiction) [2003]
EWCA Civ 1149

The author can be contacted at richard@gelaw.co.uk