The case-law governing “leave to remove” as it is called is a 2001 case, Payne v Payne. Here is the key principle which it established:

“refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.”

Intentionally or not, this case created a default position that relocation applications should be granted, unless the non-resident parent can persuade the court otherwise.

However, research has shown the damage which can be inflicted on children who are removed to another country, not only away from the other parent, but from their extended family and familiar surroundings at a time of turmoil following parental separation, and in the last week, Lord Justice Wall invited legal challenges to the received wisdom of favouring the relocating parent:

“There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.”

This may the best news in a decade on this subject.

It has remained fixed at £9.24 an hour for 15 years and has not increased with inflation. Now, the Jackson Review of Costs in Civil Proceedings has recommended that the rate should increase to £20 per hour.

The final report was published by the Ministry of Justice on 15th january 2010. It runs to some 600 pages, but if you want to read just the 3-page section on Litigants in person, it starts at p 142.

Clearly there is a big difference between one case in which the child and his resident mother, for instance, live a mile away from the non-resident father, and another case in which they live 300 miles away. Because of these differences of circumstances, the exact definition of reasonable contact will vary between cases.

We attach great importance to the demand for reasonable contact rather than just contact. A presumption of just contact is too easily dealt with by allowing, for example, one hour-long meeting per month in a supervised setting, or an exchange of Christmas cards. We believe that such levels of “contact” between a child and his other parent are simply not enough for a proper relationship to be maintained.

To those who insist that the amount of contact between child and non-resident parent be quantified – either as a percentage of the child’s time, or in terms of a number of days per year – the family law establishment replies with a by-now familiar objection: that all cases are different, and that to tie the hands of a family court by specifying a fixed amount of contact will mean that sometimes the court will not be free to decide what is best for the child in a particular case. (And in case some of us were in any doubt about our children, we are then helpfully reminded that they are not a CD collection).

The argument that any prior specification or presumption about levels of contact to be ordered, will inevitably conflict with the overriding principle that the child’s best interests are paramount, appeals to many people. After all, you cannot ask the courts to observe two basic principles – one principle has to have priority over the other. And the view of the establishment is that the paramount principle has priority over everything else.

This argument, although superficially attractive, is however completely invalid, and can be easily shown to be nonsense. To see why this is so, all that is necessary is to interpret the “presumption of reasonable contact” principle not as a competing principle that jostles for supremacy over the paramount principle, but simply as an explanation of one part of what the best interests of the child are.

Reasonable contact with his other parent is one of the things that any child needs, just as he needs air, water, food, education, and protection from danger. And he needs all these things quite regardless of whether his resident parent wants him to have them or not.

The best apples

You have gone to the supermarket on an errand for your mother, who has asked you to buy the best apples you can find. Maybe you’re uncertain as to what she means by best, so you ask her: Do you want me to choose the biggest apples, or the sweetest apples? To which she then replies: The best apples are naturally the sweetest ones, regardless of their size. So now you know what to look for: sweet apples, rather than big apples.

In such a case, nobody would say that your mother has suddenly changed her mind – whereas at first she insisted upon the best apples, now she is asking for the sweetest apples. Nobody would say that there was any conflict between the two instructions you have been given: to choose the best apples, and to choose the sweetest apples.

The first instruction was ambiguous, and the second one explained it more clearly. The second instruction did not contradict the first instruction, it simply explained what the first instruction meant.

Similarly, a presumption of contact does not override or contradict the welfare of the child principle; it is in the best interests of the child to have contact with both parents.

An example of a principle rather closer to the original theme of bringing up children is the requirement of compulsory education for school-age children. The Education Act obliges parents to ensure their children are educated, thereby enacting a principle which is almost universal in countries of the developed world, and widely accepted to be entirely for the benefit of children.

No one suggests that children would be better off, if it were left to the resident parents to decide whether to have their child educated. There has recently been a spate of well-publicised cases in which mothers have been prosecuted for failing to ensure this, and in these cases the general view of society is that those mothers have failed to act in the best interests of their children.

So, it appears that the law can say to parents: your child must be educated whether you or he likes the idea or not, because education is one of the things that children need; and furthermore, it can make that requirement without in any way conflicting with the paramount principle.

Why therefore, can the law not say to parents, in exactly the same way and without conflicting with the paramount principle: if you divorce or separate, then your child must maintain reasonable contact with both of you, unless there is a good reason otherwise?

Of course, as we have shown, the law could say this – and it could say this without contradicting the paramount principle.

Why should it be up to one parent to arbitrarily decide whether they act in the child’s best interests regarding their relationship with their other parent – when they don’t have that choice with their child’s education?

Contact “When it’s safe”

A frequent amendment, insisted upon by those opposing a presumption of reasonable contact, is the addition of riders such as “when it is safe” to almost every phrase concerning contact.

The idea, of course, is to pretend only they truly have the best interests and safety of children at heart.

However well intentioned they may be, we believe these amendments are uniformly unhelpful, and do little more than promote the (sadly fashionable) climate of fear regarding contact issues.

More importantly, such amendments are already completely unnecessary; the welfare of the child paramount principle over-rides everything else and clearly precludes anything which puts a child’s safety at risk. There is no more need to say “contact occurs when it is safe” than “contact occurs unless there would be a tub of acid suspended above the child’s head”. Both of these riders state the obvious and are covered by the paramount principle in any case.

We believe a resident parent should be required to act in the child’s best interests in all matters concerning their welfare. Most normal people would regard this as an important part of the parental role.

We believe neither parent should have the right to choose whether they harm a child by denying it either education or a relationship with their other parent. The Children Act (and the way it is implemented in family courts) gives the resident parent that right; the right to harm their child if they choose.

In our view, the law and courts should robustly protect the child’s best interests in all matters and not arbitrarily ignore them when inconvenient. At the very least, a parent should be required to have good reasons for damaging a child’s relationship with their other parent.

A presumption of reasonable contact without good reason to the contrary, would weaken the right of a resident parent to harm a child by denying their relationship with the other parent for no reason.

Surely, this should be the minimum the family justice system is aiming for?

If you look up Abused Father Syndrome in any sociology or psychology textbook, you won’t find it, so what is it we are talking about? Could there be such a psychological condition recognised in the future that could be used as a defence or partial defence in the law of provocation?

Abused Father Syndrome (AFS) arises when the victim has been a long and constant sufferer of Domestic Violence (DV) perpetrated by his children’s mother and/or the maternal family over many years. The type of DV that a non resident father suffers most from is emotional and psychological abuse.

Unlawfully denying a father to a continuing loving relationship to his children by the children’s mother when the relationship fails constitutes emotional and psychological abuse. We use unlawfully to mean without a lawful reason to stop contact such as being convicted of child abuse or DV.

The mother informing the children’s school that the father cannot see the children to prevent the father from being involved in his children’s education even when the father as Parental Responsibility (PR), calling the police and lying by telling them that the father goes round to her house to harass her, so she can frustrate family court proceedings and to get the father arrested and locked up; which would keep the father from seeing his children, getting the maternal family to beat up the father to keep him away from his children are a few types of psychological abuse.

After suffering years of abuse at the hands of his children’s mother and maternal family it has a devastating affect on the father. Sometimes, mainly around Christmas time a father may commit suicide because he cannot handle the abuse any more. But what happens in the most extreme cases of a father suffering from AFS is that he kills the mother of his children. Can this behaviour be interpreted as DV?

The Department for Constitutional Affairs, which used to be the Lord Chancellor’s Department, published a paper in 2003 called Domestic Violence: A Guide to Civil Remedies and Criminal Sanctions, which gives the legal definition of DV as being:

“Domestic violence and abuse is best described as the use of physical and/or emotional abuse or violence, including undermining off self-confidence, sexual violence, or the threat of violence, by a person who is or has been in a close relationship. Domestic violence can…involve…the destruction of a spouse’s or partner’s property, their isolation from friends, family, or other potential sources of support, threats to others including children, control over access to money, personal items, food, transportation and the telephone, and stalking” (Probert R., Cretney’s Family Law, 5th Ed. 2003, p.107).

After reading the legal definition it is easily seen that AFS is the result of years of suffering from DV very much in a similar way female victims have suffered, and as a result, when women have lashed out they have been able to use the term ‘Battered Women’s Syndrome” to assist the defence of provocation in murder cases to prove it affected the accused’s personality for it to become a relevant characteristic, (Taylor CJ, R v Thornton (No 2) [1996] 1 WLR 1174, Jefferson, M., Criminal Law, 5th Ed. 2001, p.90).

If we are meant to live in a society where men and women are treated equally in the eyes of the law then it would only be right if non resident fathers if they have been victims of DV have the same defences as women and be able to claim AFS. After all, non resident fathers are only human too.

Pete Molloy