Family Law: Relocation and the Case for Reform
Speech by Michael Robinson
of The Custody Minefield
The Custody Minefield – Smartphone
Series (optimised for smartphone users). Copyright Michael Robinson 2010.
Copyright Michael Robinson 2010. Crown Copyright material
is reproduced with the permission of the Controller of HMSO and the Queen's
printer for Scotland.
In the last year, there has been considerable and growing
criticism of the courts’ application of guidance in family law cases where one
parent wishes to move the children of the family some distance from the other
parent.
The court’s current guidance has two main flaws. The first regards
the weighting of evidence, in that unsubstantiated opinion over-rides evidence.
Judgments in these cases rarely turn on facts, but instead adhere to an
out-of-date and a rather patriarchal view of women.
The second flaw is the lack of consideration granted to societal
change in the past 40 years. In 2001 when relocation guidance was last
reviewed, counsel for the father was unable to provide evidence that the
comparative importance of fathers, and their role in childcare, had changed in the previous 30 years.
In the years that have followed since 2001, research has been
published which confirms that father involvement in day-to-day childcare has
increased 9 fold since the 1970s, and is now near equal that of mothers. The
role of the father has increased beyond breadwinner, just as the mother’s role
has changed to one of also providing financially for the family.
The stereotypical roles of the 1970s household no longer apply in modern
society, yet such perspectives continue to influence decisions in family law,
and specifically, relocation related law.
Since the time of the case Poel v Poel, it has usually been the mother applying to the courts
for what is called leave to remove. It is estimated that 90% of relocation
applications are successful.
The 2001 judicial guidance imagined that to refuse a primary
carer’s wish to relocate, would cause her (and the use of gender is within the
guidance) such psychological distress that it would impact on her ability to
care for the children. I say imagined because in 40 years, there has not been
one research study which has supported that opinion. Not one. Not in 40 years. The
child is expected to be robust, whereas the primary carer
is presumed to be emotionally fragile.
There is however research, and compelling research, which supports
that a child will suffer emotional, psychological and developmental harm when
separated from one of their parents. Since 2001, we have developed a far
greater understanding as to how separation from a parent affects a child?
In December 2009, a study by the Children’s Society found children
40% more likely to suffer mental health problems when separated from a parent.
40%. Study after study has found that children are more likely to experience
mental health and behavioural problems and are more likely to have mental
health difficulties in adulthood due to separation from a parent in childhood.
The Children’s Society found there to be a correlation between childhood
depression, and the diminishing of parenting time with a father. No doubt the
same would be true if children were routinely removed from their mothers. Children
now have two significant attachment figures, and separation anxiety and the
ensuing psychological problems caused by this should not come as a surprise.
Yet the granting of a relocation application subjects a child to this
separation 90% of cases.
The Government’s own social and educational policy actively
encourages both parents’ involvement in their children’s schooling and
education. Why? The Government’s own research found that children do better
academically when both parents have meaningful involvement in their children’s
day-to-day lives. In particular, research has found that father involvement has
a positive and independent impact on a child’s academic achievement.
In our new report on relocation, we present the findings of 15
studies by some of the leading academics and institutions in the world into the
effects of parental involvement, and exclusion from children’s care.
If it is accepted that a child is likely to suffer harm due to
separation from a parent, which evidence clearly shows, do we need further
research to confirm that this is only compounded by the effects of relocation?
If we can assume that problems for children are caused by a dramatic change to
their care arrangements and environment, the most basic common sense would suggest
that this is only compounded by the loss of friends, the removal from the
familiarity of their home environment and culture, disruption to their
schooling and separation from their wider family.
I have heard it argued that these cases are very difficult, and no
doubt they are, as one or other of the parents will be disappointed. There is a
simple solution, and one devised by Parliament 20 years ago in the Children Act
1989, that the child’s welfare should be the court’s paramount consideration.
More detailed statutory guidance is however required, to ensure that child
welfare is considered according to what evidence confirms today, rather than
what was believed in the past.
In all British child welfare issues, and the issue of ‘relocation’
is no exception, the precautionary principle should be applied. While I welcome
suggestions that there be specific longitudinal studies into relocation in the
future, these will take years, and there is no reason to ignore the abundant
and compelling longitudinal studies which show a risk of psychological,
developmental and emotional harm when a child is separated from a parent. The
evidence to support there being legal reform, and
legal reform now, is clear.
That evidence, a review of the debate
on relocation, and proposals for legal reform are
published in our new report ‘Family Law: Relocation, and the Need for Reform’.
I would welcome your support in assisting these proposals to become new
statutory guidance for the judiciary, so children are not exposed to the risks
they face today.
Michael Robinson