Non-Convention Issues
The appeal was dismissed. It was accepted that the trial judge had not misdirected himself or made an error of law, while his exercise of discretion in choosing the option least damaging to the child was not open to challenge. That being so, the lengthy judgment still raised many points of note in this difficult area of law. In the lead judgment Thorpe LJ conducted a detailed review of the English case law on the issue. He noted that previously in MH v GP [1995] 2 FLR 106, he stated that the case law had created a ‘presumption’ in favour of the reasonable application of the custodial parent. Now however he stated that it was not appropriate to use the word ‘presumption’, even in a non-legal sense. He held that concepts of presumption and burden of proof have no place in any Children Act litigation given that the judge exercises a function that is partly inquisitorial. Thorpe LJ was not persuaded by the argument that existing leave to remove case law is inconsistent with the Children Act and current perceptions on contact. Indeed the judge held that no authority had been presented to show that over the last thirty years the comparative importance of contact between a child and the absent parent has greatly increased. He noted that while the language may have shifted the approach seems to have remained constant. He also suggested that the mental health professions had not called into question the approach traditionally adopted. Finally, he concluded that the changes introduced by the Children Act, in how applications for leave to remove were to be made, were ones of form and not substance. On the issue of human rights, the court recognised that following the decision of the European Court in Glaser v UK [200] 3 FCR 193 and of the Court of Appeal in Douglas, Zeta Jones and Northern Shell plc v Hello plc, 21 December 2000, it was clear that the European Convention did apply to private law family proceedings. The father argued that allowing his daughter to go to New Zealand breached his right to family life under Article 8. Thorpe LJ responded that: ‘…once a family unit disintegrates the separating members’ separate rights can only be to a fragmented family life. Certainly the absent parent has the right to participation to the extent and in what manner the complex circumstances of the individual case dictate.’ It was added that the court’s focus on supporting the reasonable proposal of the primary carer is merely an important factor in upholding the paramountcy of the welfare of the child. Nevertheless, returning to his earlier comments, Thorpe LJ did concede that if the regard a court plays to the reasonable proposals of the primary carer were elevated into a legal presumption there would be a risk of breach of the respondent’s rights under Article 8 and Article 6, (right to a fair trial). He then went on to set down several guidelines to be applied in such cases. 1. The first issue to ascertain is whether the application is genuine, i.e. not merely motivated by the desire to exclude the other parent from the child’s life. It must then be determined whether the planned relocation is realistic. If the applicant cannot satisfy both of these tests leave should be refused. 2. If the applicant does satisfy these tests, a list of further issues must be considered: What is the basis of the other parent’s objection? What effect would relocation have on him and his future relationship with the child? To what extent would any negative effects be offset by the new relationships the child would develop in the new state of residence? What would be the impact on the applicant if leave were not granted? 3. The answers to these questions must then be considered in the light of the child’s welfare being the paramount consideration, directed by the statutory checklist so far as is appropriate.
