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Competing applications involving children

The Court of Appeal has recently reiterated that in cases where there are competing issues to be determined, decisions around who should be the carer and the child arrangements should be made first.
Cases involving the relocation of a parent who is a child’s main carer, with the child, following separation or divorce are always incredibly difficult. On the one hand, that parent may have very good reasons for moving elsewhere, whether within the UK or internationally. On the other hand, the parent left behind faces significantly reduced contact with his or her child or children; the child can also suffer as a result. Added complications arise when the parent who is not currently the main carer seeks to challenge that status, or to change the arrangements that are in place for the care of the child.
In the recent case of F v L [2017] EWHC 1377 (Fam) the Court of Appeal confirmed that the correct approach was to decide who should be the child’s main carer and what the child’s living arrangements should be, before considering an application by one parent (in this case, the mother) for permission to relocate.

The Facts of F v L

F and L are both Italian nationals. They moved to England to work, L in 2001, and then F, having met as teenagers in Italy. D, their child was born in 2012, and has a British passport. L lost his job and assumed care of D while F worked. During their time together, F and L had discussed the possibility of relocating together – either back to Italy or to Lanzarote. However, during a trip to Italy in 2015, the relationship broke down and they became estranged. They had lived separately since May 2016, and F began to plan a return to Italy. She made an application to do so, which was refused, and appealed that decision and a child arrangements order. L applied for a shared care Child Arrangements Order and opposed the application for relocation. Care of D had been shared between F and L for some months up to the point of the hearing early in 2017.

Dealing with relocation before questions of the child’s care is a procedural irregularity

The judge who heard the application for relocation and L’s application for a shared care Child Arrangements Order had evidence available from the parents and from a CAFCASS officer. Although she correctly referred to the appropriate law, she only considered the care arrangements of the child at the end of her judgement, she made no findings of fact, and did not deal adequately with the findings of the CAFCASS officer who raised concerns about the coercive and controlling behaviour of L towards F. As the Court of Appeal pointed out, following the decision of Payne v Payne [2001] 1FLR 1052, the correct approach is to consider care arrangements first and then go on to consider matters such as relocation.

The correct approach is vital to secure the welfare of the child

In Payne, which we mentioned above, the court made it clear that the welfare of the child was best served by dealing with the issues of care first, and then going on to consider relocation
Family Law expert, Susi Gillespie agreed wholeheartedly with the conclusions of the Court of Appeal:
The first instance decision was certainly appealable – the Judge should have decided who would be the child’s main carer and what the child’s living arrangements should be before going on to consider the application for permission to relocate.  Ultimately, the judge considered the child’s overall welfare needs together with the relocation application rather than as the initial primary analysis of which parent was best placed to meet the needs of the child. 
In addition, the first instance judge did not consider or make any findings of fact regarding the mother’s allegations of coercive control and went on to arbitrarily divide the child’s time between the parents with no consideration to how the child would be affected by sharing 2 homes with warring parents in a situation where one parent may be antagonistic and unsupportive towards the other.   Such an approach does not further the child’s welfare.

A final nod – towards Brexit!

The case was remitted back to another circuit judge for a re-hearing to consider the arrangements regarding the child, and then to consider the application for relocation, at which the child would be separately represented and made a party to the proceedings. Interestingly, in making this order, the Court of Appeal gave a nod to Britain’s decision to leave the European Union: “This child is of Italian heritage and most of his extended family live in Italy, while not a deciding factor it is one which should command some consideration by the tribunal deciding his future. The fact that as EU citizens his parents’ residence and their status in the UK no longer has the certainty it previously had, and the possibility that relocation to Italy may become a necessity is a factor that should, properly, have been considered by the trial judge.” (paragraph 16)
It remains to be seen the final extent to which proceedings such as these will have this added dimension introduced. For a fuller discussion of relocation and the issues involved, visit our website. For help and advice in relation to a specific application, get in touch!