The Custody Minefield

Leave to Remove – Facts and Expert Opinion

· Leave to Remove cases concern applications by a parent to permanently ‘remove’ the children from the jurisdiction of England and Wales following parental separation. For this, the relocating parent normally requires the court’s permission (‘leave’).

· Statute, introduced in 1989 (the Children Act), requires that in any decision taken by a court over arrangements for children, the child’s welfare must be the court’s paramount consideration.

· The courts however are also ‘bound’ to follow precedent first set in 1970, and reinforced by the court of appeal in 2001 which is incompatible with the children act.

· There is a conflict between law set by Parliament (statute), and law set by the judiciary (common law).

· The President of the Family Courts in 2010 finally acknowledged that the precedent which the courts MUST follow places too great an emphasis on the wishes and feelings of the relocating parent.

· Anecdotal evidence indicates that the courts hear 1,200 leave to remove cases a year, but the numbers are growing.

· 85% of solicitors held that leave to remove applications are too readily granted.

· It is estimated that 90% of leave to remove applications succeed.

· We are not aware of a single appeal against a decision in favour of leave to remove succeeding. A parent normally finds that even permission to appeal is refused by the Court of Appeal.

· Lord Justice Wilson has called the court’s guidance ‘controversial’ (Sir Bob Geldof has called it barbaric, and effectively the ‘state sponsored kidnap of children’).

· Ann Thomas, Managing Partner of the International Family Law Group said ‘the law on child relocation has not changed for 40 years yet parenting patterns and family expectations today are unrecognisable from those of the 1970s. Unintentionally, by favouring the mother as residential parent, the law has become gender discriminatory and often too little interest is place on the children's real interests as the parents battle over their future in court. It must change.'

· Research, published since 2001, has found children to be at an increased risk of developmental, emotional and psychological harm when separated from a father. Their risks of experiencing mental illness are 40% greater and there is a direct correlation between childhood depression and the diminishing in paternal parenting time. IQ is lower, academic attainment is lower. There is a greater likelihood of teenage pregnancy, substance abuse and delinquency.

· Research confirms that in 40 years, the level of father involvement in childcare has increased nine fold, to be near equal to that of mothers today. The difference? Just 15 minutes a day on average.

· Research has also found that after parental separation, children fare better on all ‘adjustment measures’ when subject to shared parenting, as opposed to sole residence arrangements. Leave to remove denies children any chance of shared parenting, and exposes them to risks of emotional, developmental and psychological harm.

The evidence to support the statements made in this information sheet can be found on our websites ‘The Custody Minefield’ and ‘Relocation Campaign’.

We highly recommend you download and read our Parliamentary Briefing Report, presented at the Palace of Westminster on 9^th November 2010.

Support

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