Dear ....,

I would like to draw your attention to the ‘Every Family Matters’ report by the Centre for Social Justice, the M.O.J. funded ‘Relocation Report’ by Reunite and the ‘Relocation: Children’s Needs and Rights’ report by The Custody Minefield, and the arguments therein for removing Payne v Payne as a leading case law precedent in relocation applications.

Generally, decisions regarding relocation in the courts are led by Lord Justice Thorpe who set the leading precedent in 2001 in the case Payne v Payne.

That judgment faces widespread criticism both nationally and internationally, as ranking a resident parent’s wishes above their child’s needs and rights. Furthermore many professionals involved in the Court process have suggested that the current legal precedents are possibly not representative of the true situation in practical family situations”.

I would also like to draw your attention to the following:

1.    The Centre for Social Justice in their report ‘Every Family Matters’ published in July 2009 stated: “Currently the resident parent has disproportionate ‘rights’ in this area, with their desire to move away being the sole or primary consideration...This accords with what many see as the outdated notion that the child has one psychological parent, and the continuation of living with them best serves the interests of the child.”

2.    Also in July 2009, the charity REUNITE published their findings in a report entitled ‘Relocation’ which was funded by the Ministry of Justice. Speaking of the effects on children of relocation, Dr Marilyn Freeman, in the section entitled Systemic Problems, writes ‘Generally, it was felt that children are not well served by the current relocation system and that insufficient attention has been paid, to date, to the effects of relocation on the child. At the same time, the over-emphasis on the happiness of the mother means that the system is apparently stacked against fathers, even custodial fathers, who feel that they suffer a serious legal injustice through the relocation system in this country.’

3.    In December 2009, The Custody Minefield and Sir Bob Geldof released a report highlighting how relocation and separation from a parent can harm a child’s psychological, educational and social development.

4.    I understand that the court’s stance on relocation cases was the subject of a debate at The Law Society by Resolution in September 2005 with the motion ‘leave to remove is too easily granted’. The motion was carried by 77 votes to 19 with 10 abstentions.

5.    LJ Thorpe’s reasoning for his favouring the mother in relocation cases was set out in his leading case law, Payne v Payne at point 32, ‘Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability.’

6.    Early Day Motion 373 calling for greater legislative protection for children's needs and rights in relocation cases before the courts.

In the Law Society debate in 2005, Dr Mark Berlowitz, a child psychologist, argued that no scientific research exists to support the belief that either distress or depression are assisted by allowing relocation (as detailed in the Reunite Report). Legal precedent seems based on an unqualified, out-of-date, unsubstantiated and gender prejudiced belief which remains resolutely held even when challenged by psychological professionals.

Given the systemic problems and bias in relocation cases, we believe that it is not possible to receive a fair trial, and this is in breach of Article 6 and 8 of the Human Rights Act. I further understand that appealing a judgment in a relocation case, as a father, is a futile exercise.

In relocation cases, the courts’ adherence to possibly biased legal precedent over-rides their statutory duty to uphold a child’s welfare as the court’s paramount consideration. This duty is set out in the Children Act 1989. That the courts fail in this is not simply my opinion, but one shared by the charity REUNITE (whose research was funded by the Ministry of Justice) and by the Centre for Social Justice. Internationally, the Court of Appeal in New Zealand, in the case D v S in 2005 rejected the case law Payne v Payne as a leading precedent on the grounds that it put the mother’s needs above the child’s (as detailed in the Reunite Report).

It is of great concern to me that the courts continue to ignore widespread and authoritative research which concludes that children suffer both educationally and emotionally when deprived of paternal involvement in their day-to-day lives. This research was not available at the time of LJ Thorpe’s judgement in Payne v Payne. Among that research are the following findings:

According to a report by the Department for Education and Skills in 2003 entitled ‘The Importance of Parental Involvement in Children’s Education’ 'Father involvement in children's education at age 7 independently predicts higher educational attainment by age 20, in both boys and girls.' This research came from the Department of Social Policy and Social Work at the University of Oxford, in 2002.

According to a report by the Children’s Society in February 2009, ‘a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input’ and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'On average, children are less likely to fail at school or suffer depression the more they see their separated father.'

In Summary

1.    It would appear the court’s current position of upholding a mother’s wishes and the basis for this is not supported by scientific evidence and would appear to be contrary to the rights and needs of the child.

2.    As a result, there is little opportunity for a fair trial for a father who seeks to prevent his child relocating.

3.    The child’s best interests are not the paramount consideration of the court and therefore the courts are not properly considering the welfare needs of children.

4.    The court’s position of upholding a mother’s wishes and the basis for this is not supported by scientific evidence and goes contrary to the rights and needs of the child.

5.     Relocation applications follow, all too frequently, in the wake of a history of implacable hostility to contact on the part of the parent wishing to relocate. It is an acknowledged fact that contact orders made, even across jurisdictions within the UK, are easily thwarted and all but unenforceable. In short, relocation is used as a trump card by one parent wishing to prevent a child having a meaningful relationship with the other.

6.     We believe that in so readily granting these applications, the courts are possibly, in effect, rewarding the hostility of one parent and failing in their duty to act in the best interests of the child.

I would be grateful for a reply, and your comments as to how you intend to address these matters. 

Yours sincerely,