Brexit – Family Law Perspectives


My first thoughts on Brexit news today was sympathy for parents whose children have been removed to other European countries following leave to remove decisions. The decision last night will be causing them uncertainty and anxiety.

One of the the best EU regulations from a family law perspective  (or bureaucracy that was forced upon us as some would say), were the Brussels II Revised Regulations. Article 21 of those regulations make contact orders made in one EU country (excluding Denmark who opted out) enforceable in another EU member state. Will we lose those protections? Will a replacement to that agreement be made between the UK and EU? Will this protection be removed entirely, and will the parent facing the high cost of legal proceedings in the UK then face the daunting cost of starting again in a foreign jurisdiction with a UK order not worth the paper it’s written on? One can only hope this is not forgotten in the Brexit negotiations which follow. I wish I had the answers to give assurances, but no-one does nor will for some time.

Parents whose children are relocated to other EU states may face higher air fares (Europe saw the end of bi-lateral air service agreements); they’ll face travel insurance costs (while at the moment there are reciprocal agreements); and then there’s the loss of protected rights in terms of travel to other European countries. Will their children be able to return to the UK if they so decide when they reach adulthood? Maybe only if they have the requisite skills to meet an immigrant quota system. School choice and subject choice could become far more important for parents who remain in the UK. Will there be a right to involvement in those decisions? Will that right be enforceable in a foreign jurisdiction? Unlikely.

In terms of protections against international child abduction, we’ll stay part of the Hague Convention on the Civil Aspects of International Child Abduction, but I’ve no doubt that membership of the Brussels II Regulations gave British parents (and all European parents other than the Danish) greater protection. The Hague Convention as we all should know, is no guarantee of having your child returned.

I’ve no doubt that membership of Europe made it harder for the Tories to pursue their wish to extract the UK from the Human Rights Act (and EU Convention on Human Rights). It is the UK’s being subject to the European Court of Human Rights which freed Sir James Munby to insist on legal aid being given to two parents with learning difficulties who couldn’t afford legal representation, who faced their children being permanently removed from them by social workers, but had had their right to legal representation taken away by Government. They faced a Local Authority with a full legal team. Our judges could challenge the decision of Government on human rights’ grounds, because those rights were protected despite what was undeniably a democratic decision to strip those rights from two, vulnerable parents who lacked the capacity to conduct their own case. Democracy isn’t always a good thing or democratic decisions defensible. Europe at least gave a check and balance against human rights abuses. A chance for the man or woman in the street to stand up to large institutions and fight injustice.

I know some who view Brexit as a good thing. In terms of the microcosm of family law, it is not. My thoughts today are with the parents it affects, and who will be affected in the future.


Re C (Older Children: Relocation) [2015] EWCA Civ 1298


The case related to an application for leave to remove in respect of two teenagers. One being under 16, the other aged 17. The appellate court refused appeal against the recorder´s decision to refuse leave to remove in respect of the younger teen, despite their expressing their wish to relocate. The underlying reason was that the mother´s plans for the relocation were not sufficiently thought through. In respect of the older child, appeal was allowed, as “The simple fact is that E is too old to be directed by the court in a matter of this kind.” Continue reading Re C (Older Children: Relocation) [2015] EWCA Civ 1298


How many children were the subject of leave to remove applications in 2014?

baby owl Reg

We’ve just been reading Freedom of Information statistics from Her Majesty’s Court and Tribunal Service (HMCTS).

Now we’ll give you a bit of a clue… according to those same statistics, the number of children involved in cases where an order was made relating to leave to remove was given as 255 (in all of 2014). Also, remember that according to Government statistics, in 2010, the proportion of children born to foreign born mothers was 50% in London (and 25% nationally) so one might expect the number to be quite high!

Source of statistics: HMCTS FamilyMan System

According to HMCTS statistics, how many children were the subject of application for leave to remove in 2014?


Failures in Judicial Case Allocation and Gatekeeping


We have seen a number of cases recently where the courts are failing to follow rules in relation to case allocation. Some of the worst examples include:

  • leave to remove cases (where one parent seeks to remove the children abroad).
  • complex cases previously heard in senior courts ending up heard by magistrates who fail to examine case history prior to varying the existing orders (which came before them for enforcement).

In short, the wrong level of judge is hearing cases in breach of court rules and guidance. If your case is allocated to the wrong level of judge, ask for it to be moved to the right level by writing into the court. We suggest writing into the court where the application was made, and addressing your letter to the Designated Family Judge (DFJ) responsible for Gatekeeping and Case Allocation. If you can, take the letter into court, hand it into the court administration department and ask for a receipt to confirm delivery. After this, if matters continue to be heard at the wrong level, write a position statement including a request for the case to be transferred and deliver this to court two days before the next hearing. Raise the matter orally at the hearing and take a copy of that position statement and the letter sent to the DFJ into court with you.

Case outcomes can be put at risk when too junior a judge hears them. This is why the rules exist to ensure more complex cases are heard by more experienced judiciary. In this article, we remind people of how cases should be allocated and the rules which govern this. Please reference the guidance we cite when asking that the court move proceedings to the correct level of judge.

Continue reading Failures in Judicial Case Allocation and Gatekeeping


New Case Law: Leave to Remove – Gender and Payne – Essential Reading


In August, Lord Justice Ryder handed down judgment in a case which involved leave to remove. Continue reading New Case Law: Leave to Remove – Gender and Payne – Essential Reading


New Case Law – Leave to Remove – N v N (Removal from the jurisdiction) [2015] EWFC B89


The mother´s having placed obstacles in the way of contact was a factor in leave to remove being refused. The mother’s arguments were unduly critical of the father and she could not think of a single positive thing to say about him. Her focus had been on the maternal family whereas it should have been on the child’s needs and his parents.

The judge did not accept she would be devastated but disappointed. The judge usefully bullet points the matters he weighed when considering the case before him. The mother’s application for leave to remove was refused.

Read the full text of the judgment
Download the judgment


Leave to Remove Guidance for the non-relocating parent


On the weekend I was asked what goes through my head (not the first time in the last week) when working on arguments in leave to remove cases. The question “are they very difficult to stop” raises the response “no, but you can’t hope to just walk into court without detailed preparation and get a good result”. You need to have facts pertinent to the individual case to work with and build the arguments around those facts. You need to prepare thoroughly. There are pitfalls too to be avoided and these are discussed further on. Continue reading Leave to Remove Guidance for the non-relocating parent


New US Data on Child Abduction and International Non-Compliance


Of interest to those involved in cases involving international child abduction, the unlawful retention of children abroad, applications for leave to remove, and applications for temporary leave to remove, comes new data from the United States on state non-compliance in respect of the children’s return. Continue reading New US Data on Child Abduction and International Non-Compliance


In today’s Daily Mail – The fathers who only see their children on a computer screen


If you missed the Daily Mail article today on the limitations of Skype as a source of contact, you can read it via the link below:

The fathers who only see their children on a computer screen

It’s worth remembering that some mums are affected by this too. Regardless of gender, all of their children are affected. You really can’t hug Skype.