If you find this site useful, please donate to support our work
Subscribe

Get our latest news by email:

Search

Looking for something?

Find news about...
shared parenting (52) research (24) Parental Alienation (22) child support (16) consultation (15) contact (14) fundraising (14) family law (10) Scottish Parliament (9) bar reports (8) courts (8) CSA (8) legislation (8) AGM (7) child maintenance (7) CMEC (7) legal aid (7) party litigant (7) shared care (7) child protection (6) contact orders (6) Court (6) Court reform (6) domestic violence (6) false allegations (6) fathers (6) FNF Scotland (6) lay assistant (6) parental involvement (6) parental rights (6) relocation (6) contempt of court (5) divorce (5) family courts (5) family research (5) Father's Day (5) leave to remove (5) male victims of domestic violence (5) mediation (5) parenting (5) school information (5) Scottish family law (5) absent fathers (4) conference (4) education (4) enforcement (4) England (4) English family courts (4) family law reform (4) family law reform (4) funding (4) Hague Convention (4) high conflict disputes (4) ICSP (4) legal (4) McKenzie Friend (4) Parenting Apart (4) parenting strategy (4) Public petitions Committee (4) schools (4) Scottish courts (4) Scottish Government (4) social work (4) sponsored events (4) sweden (4) training (4) unmarried fathers (4) abduction (3) child support (3) children resisting contact (3) children's rights (3) children's views (3) Christmas (3) consultation response (3) court rules (3) Cross-border issues (3) domestic abuse (3) education in Scotland (3) education law (3) Equal Parents (3) Families Need Fathers Scotland (3) FNFS (3) gill review (3) involving fathers (3) judgements (3) lay representation (3) maintenance (3) PA (3) School involvement (3) separation (3) Sheriff Court (3) shred parenting (3) SLAB (3) sshared parenting (3) summary sheriffs (3) supporting fathers (3) survey (3) surveys (3) Tough Mudder (3) tv (3) 10k (2) Aileen Campbell (2) Australia (2) bedroom tax (2) breach of the peace (2) charging (2) child development (2) child maintenance reform (2) Child Welfare Reports (2) children (2) children's minister (2) civil court reform (2) CMS (2) complaints (2) contact centre (2) court delay (2) Court of Session (2) court reports (2) cross border (2) Cross Border cases (2) Dads Rock (2) debate (2) DWP (2) ECHR (2) edinburgh Men's 10k (2) England and Wales (2) English family law (2) Equal Opportunities Commitee (2) events (2) Family Justice Review (2) Family Mediation (2) fatherhood (2) film (2) Fundraising (2) GIRFEC (2) Glasgow (2) grandparents (2) habitual residence (2) holiday contact (2) Holyrood event (2) international abuction (2) international child abduction (2) interviews (2) Ironman Edinburgh 70.3 (2) ISCP (2) Japan (2) Justice Committee (2) Karen Woodall (2) law reform (2) local groups (2) Louis de Bernières (2) Malin Bergstrom (2) Mens 10k (2) Minnesota (2) national parenting strategy (2) new partners (2) Nicholas Bala (2) Nick Child (2) non-resident fathers (2) non-resident parents (2) overnights (2) Pakistan (2) Parental Alienation (2) Parental Alienation Awareness Day (2) parenting courses (2) parenting information (2) parenting support (2) party litigants (2) Penelope Leach (2) relationship support (2) relationships (2) Relationships Scotland (2) reports (2) Safeguarders (2) Scottish Schools (Parental Involvement) Act (2) seminar (2) shared residence (2) SLCC (2) sponsorship (2) statistics (2) student intern (2) Supreme Court (2) Switzerland (2) TV coverage (2) videos (2) Warshak (2) welfare reform (2) year of the dad (2)
Facebook

Entries in leave to remove (5)

Friday
Apr072017

'Leave to remove' judgment: lessons to be learned

There are two lessons to be drawn from a recent Court of Session judgement by Lady Wise refusing an application by a mother to relocate to England with their son against the wishes of the father.  FNF Scotland hope that this case will inform the coming debate on the review of family law and consideration of case management in family cases in Scottish courts.

The first is that any reform will have to be accompanied by a programme of public education – and political leadership - that parents who separate have a responsibility to their children to support their former partner's right to be their father/mother above any personal animosity they may still feel.

While we do not want to pick further at the raw wounds of the parties in that specific case, some of the observations made by Lady Wise are continuing themes in the stories we hear at our monthly group meetings around Scotland.

Not least of the resonances is in her observation that, “O [the child] is not a prize to be won or lost in this contest. He is a little boy with two parents whose ongoing involvement in his life he has come to expect insofar as a 2 year old child has any expectations.”

Lady Wise also explained why she was refusing the separate application by the mother for an order that she should be awarded residence with the child. It is one of the themes FNF Scotland will be stressing during the forthcoming debate and that underpins our campaign for a presumption of sharing parenting after separation.  

In refusing the application Lady Wise said, "I have already commented that she (the mother) seems to misunderstand the nature of such an order.  It would not give her the right to take important decisions about O’s (the child) care and upbringing, including his education, without reference to the defender." and adds "There are good reasons for not making a Residence Order in this case.  The absence of a Residence Order will send a signal to the pursuer that neither party has ultimate authority over this child.”

The terms “resident” and “non-resident” parent immediately invite parents and their families to perceive a difference in status between them.  The Children (Scotland) Act 1995 refers to "residence" and "contact" orders, which perpetuates this unhelpful distinction.

The second lesson we hope is taken seriously in the forthcoming debate concerns the current adversarial process in deciding family conflicts.  While such proof hearings may be successful in testing the evidence of the parties, this adversarial process may itself drive them further apart.  We have written before that parents have to find a way of collaborating in the interests of the children long after the judge has moved to the next cases and their solicitors have closed the files.

This proof hearing took six days in the Court of Session, with both parents and a large number of witnesses producing affidavits and giving evidence under oath, some of which Lady Wise found inaccurate and unhelpful.  The costs to each party will have been eye-watering.  Following this judgement the mother and father will have to co-operate with each other on bringing up their child for at least the next 15 or more years.  It would help if the maternal and paternal grandparents could be part of the solution not the problem, but this hearing allowed them to demonstrate from the witness box the substantial gulf between the two families.

If evidential hearings in family cases were held on an inquisitorial basis, with the judge deciding what evidence is necessary and conducting the examination of witnesses, such cases could be shortened and some of the hostility taken out of the proceedings.

No family case can be painless, but there is scope for significantly minimising the hurt and thereby making it easier for the parties to work together in future.  Child Welfare Hearings at earlier stages of family disputes are already conducted on more of an inquisitorial basis though the practice varies in courts across Scotland. At their best they focus proceedings on what both parents can do to support their children's wellbeing rather than running down each other's character.

Inquisitorial does not mean soft, but it could take some of the collateral damage out of a difficult process by avoiding some of the evidence that will have no bearing on the judge's decision but can further antagonise and undermine the parties. Lawyers will still perform a vital role, but the inquisitorial approach will focus far more on finding resolution rather than simply outgunning an opponent.

Family cases in some other countries are run on inquisatorial lines.  In an experiment in Oregon, parents were offered a choice of using traditional trials or an Informal Domestic Relations Trial (IDRT) in which the fact-finding and decision making process follows an inquisitorial route. 

Research published recently showed IDRT cases are typically docketed more quickly than traditional trials, last just a couple of hours and decisions are rendered promptly, usually the day of the hearing or trial.  The court retains jurisdiction to modify the process as fairness requires and to divert cases where domestic violence or other reasons render IDRT inappropriate.  There was a broad consensus that the IDRT process significantly enhanced the parties’ sense that the process was fair,  even when the outcome was not exactly what either party had advocated.

Thursday
May032012

Research underway on Relocation Disputes within England and Wales

A British Academy Postdoctoral Fellow at the University of Oxford has begun research on relocation disputes within England and Wales. Dr Rob George is looking to "broaden our understanding of the everyday realities of relocation disputes." He will be reviewing relocation cases, at first instance, in England and Wales between 1 January 2012 and 31 December 2012.

Dr Rob George is of the view that "Although these cases are increasingly common, very little is known about their everyday reality in England and Wales because almost all the information presently available is based on a tiny sample of cases which reach the Court of Appeal. This lack of information makes it difficult to engage fully with the global debate over the law's regulation of post-separation families in the migration context."

Families Need Fathers Scotland welcomes this move to ascertain the realties of relocation within England and Wales. Hopefully this research shall encourage debate on Intra-UK relocation issues. FNF Scotland recognises that there is a distinct lack of research on relocation within the UK.

More information on Dr Rob George's research is available on Family Law Week.

For anyone affected by a relocation dispute the Custody Minefield web site is an invaluable source of information.  FNF Scotland is now collecting Scottish case studies and judgements to supplement its largely English coverage, and we would like to hear from anyone currently involved in such a case.

Sunday
Dec112011

Leave to remove decision overturned on appeal

A recent Court of Session judgement overturned permission for a mother to take her children to the south of England from the Lothians (leave to remove) against the wishes of the children's father. 

This judgement rejects the approach taken in the original Sheriff Court judgement and by the Sheriff Principal in an appeal.

It emphasises that guidance from English cases such as Payne v Payne forms no part of the law of Scotland and stresses that the most important consideration in such cases is the interests of the child or children, not that of the parent who is seeking to move. 

The original Sheriff's judgement is criticised by Lord Emslie because: "It contains no evaluation, from the children's perspective, of the importance of current contact arrangements, nor of the likely effect on the children if, in due course, they were to see much less, or even nothing at all, of their father, aunt, grandmother and friends in Scotland."

Leave to remove decisions will always depend upon individual circumstances rather than any overall consideration, but this appeal judgement will be useful for any non-resident parent who is seeking to oppose a move that will make future contact difficult, even when the parent seeking to move uses arguments relating to support from family or a new partner at the chosen destination.

It re-asserts the need to concentrate on the welfare and interests of the children, rather than placing any special significance on the wishes or well being of the children's primary carer.

For anyone in this position the Custody Minefield web site is an invaluable source of information.  Families Need Fathers Scotland is now collecting Scottish case studies and judgements to supplement its largely English coverage, and we would like to hear from anyone currently involved in such a case.

Tuesday
Sep132011

Cross border cases wanted

Families Need Fathers Scotland is collecting examples of UK cross-border problems in family law cases. 

We already know of various cases in which children have been moved from one country to another without agreement of the separated father, which have then resulted in court action taking place in the new location rather than the country of residence before the move.

If a similar move is made to a foreign country, then the Hague convention on child abduction should apply, and the case would have to be heard quickly in the country of origin.  It seems easier to get children back from the far side of the world than from England - so long as the destination country subscribes to the Hague convention.

We have the impression that the problem is greater if the move is from Scotland to England than vice versa, but that may just be because we hear more examples of that situation.

Anyone with experience of cross-border problems should contact Ian or John in the Edinburgh office - 0131 557 2440 or scotland@fnf.org.uk.

Wednesday
Jun292011

Rise in Parental Child Abductions 

Famlies Need Fathers has issued a call for reform of the current approach to abduction and relocation cases, following news of a 21% rise in international parental adduction cases this year.

The Foreigh Office is launching a new campaign to raise awareness of what people can do to prevent abduction, working with Reunite International.

FNF chief executive Ken Sanderson expressed concern at this news, and commented that the legal system's approach to abduction and relocation is in drastic need of an overhaul.

Although international aspects of abduction are handled at UK level, FNF Scotland has already asked the Scottish Justice Minister Roseanna Cunningham about difficulties in deciding whether English or Scottish courts deal with cases where one parent has abducted the children from Scotland to England.

If you are worried your child might be at risk, or if your child has been abducted you can call the Child Abduction Section at the Foreign Office on 0207 008 0878 or www.fco.gov.uk or reunite on 0116 2556 234.