There are few overt bastions of gender discrimination left in the country today. Perhaps a few of the more traditional gentlemen’s clubs remain of the view that ladies should not be admitted, and it was only last year that the Royal and Ancient Golf Club of St Andrew’s admitted those of the female persuasion to its ranks. In CFLP’s world, we often hear criticism of the family courts based on its perceived gender bias against fathers in children matters; we often hear criticism that the child support system, and the financial system on divorce, is stacked the other way. Family law may not be generally considered to move quickly with its perception of gender roles, but its approach to true parental equality has taken a decent step forward with a judgment released recently by the Court of Appeal regarding an application by a mother to take a child to live abroad.
The case, F (a child) (international relocation cases) concerned the application of a mother of a 12 year old girl to relocate the child permanently to Germany. The mother is a German national who had originally come to England in the 1980s to learn English and had worked as an au pair for the father’s sister. The couple married in 2002 and had one child, a girl. Having separated, and later divorced, the mother wanted to return to her native Germany with their daughter. The father objected.
As a little reminder, you need either the consent of all holders of parental responsibility or the permission of the court to remove a child from the jurisdiction of England and Wales to another country on a permanent basis.
Anecdotally, it seems there has been a persistent, if unintentional, gender bias when courts have dealt with these applications. It remains the case that mothers are the main care givers in a lot of families. They are often what is rather unfortunately termed, the “primary carer”. When it is the mother who wishes to relocate with the children, then that role of primary carer has frequently meant that permission has been granted, to the clear detriment of the father, left behind in this country. This perceived bias towards the mother has largely arisen as a result of the guidance given out in a 2001 case (called Payne v Payne) on how the courts should approach cases where one parent wishes to emigrate. That included looking at the effect of a refusal to permit relocation on the parent wanting to go, and giving weight to their wishes, especially if they were returning to their native country.
Now the Court of Appeal has used this most recent case to put forward a new approach which ought to be adopted. It has reminded judges that the child’s welfare is to be the paramount consideration and that the proposals put forward by each parent for living arrangements, education, healthcare, and contact with the other parent are to be carefully scrutinised with the child’s welfare in mind, rather than the effect on the parents of a permission or a refusal of the application.
The Court of Appeal has slightly tied itself in knots in unravelling the guidance from the Payne case, as that was also a decision of the Court of Appeal and it is (in theory) bound by its own precedent. So the Court managed to downgrade the previous guidance and was critical of judges having been over-reliant on it. The Court was also critical of the gender inequality caused by the previous guidance, saying: “in the decade or more since Payne it would seem odd indeed for this Court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role in relationships of parents with a child.”
What this means in practice is that there needs to be a detailed evaluation of the harm to the child (not the parent) on the one hand of permission to relocate being refused as against the harm that would result from separation from the parent left behind should permission be granted. The Court of Appeal has put the child firmly back at the centre of the discussion, rather than focusing on the parents. It said quite clearly that the approach adopted by the courts since the case of Payne is no longer sufficient.
In this particular set of circumstances, the Court of Appeal decided that the judge had not adequately explored the erosion of the quality of the relationship between father and daughter which would inevitably follow on from a relocation, especially where there was acrimony between the parents and the mother had already shown a wish to limit the father’s involvement with his daughter. The father’s appeal against the order permitting relocation was successful and the matter will be reheard before a different judge, with the child’s welfare as the focus. The decision for this family in the end may be different or it may not be – who knows, maybe the parents will even sort things out together, perhaps, before the next hearing takes place.
For situations where one parent wants to take the child abroad to live in the future this case will mean that there is something more approaching parental equality in the court. The realities of the day to day care of the child concerned will be more important than labels such as ‘primary carer’, ‘non-resident parent’ or ‘shared care’. Both parents’ plans for the child going forward (here and abroad) will be scrutinised, and the child’s views will be sought when appropriate. The quality of the relationship both parents have with the child and will be able to have in the future here or abroad will be considered, and the ultimate decider will be what is best for the welfare of the child concerned in light of all the circumstances. The Court of Appeal has made it clear that it will adopt a holistic approach rather than an unintentional bias towards the mother/primary carer.
If you would like to talk to us about international relocation or any other aspect of family law, please get in touch on 01223 443333.