UK Court Restricts Move-Away by Mom

A British appeals court stopped a mother from moving to Canada to prevent separating the children from their father.  Read about it here (Telegraph, 8/24/11).

It seems the parents are Canadians living in England.  The two have two children, one aged four and one two.  Dad and Mom divorced, Mom got primary custody and after a while, wanted to move back to Canada, effectively cutting off all physical contact with Dad.

The father objected, but the trial court didn’t see anything wrong with depriving children of their dad and green-lighted the mother’s wishes.  Not so fast ruled the appellate court.  Dad’s cared for the children 35% of the time (which I assume means two days plus one half day) and it would be traumatic for the children to lose him.  So if Mom wants continued custody of the children, she has to stay in the U.K.  Of course if she wants to go to Canada badly enough, no one’s stopping her, but she can’t take the kids with her. 

In other words, she could do herself what she asked the court to do for her – separate one parent from the children by a distance of thousands of miles.  But it seems that when she’s the one to be separated, she’s not so enthusiastic about the idea.

According to the article, that’s the first time such a ruling has been made in England even though some 1,000 move-away cases are heard by courts there each year.  It goes on to say that “almost all” of those move-away requests come from mothers.

Interestingly, in those move-away cases, courts have always placed great weight on the “distress” caused to the mother by being forced to remain in England.  In the case reported on, the mother claimed she was distressed by the prospect of not returning to Canada, but the court said the children’s welfare outweighed that. 

In brief, the mother”s application was refused because the damage to the children caused by the reduction in the contact with their father, should she be allowed to relocate, outweighed the damage arising from the distress to the mother if the application was refused.

Interesting too is the fact that the appellate court didn’t simply rule that the father’s visiting the kids via Skype should be good enough for them.  I reported on a case just like that not long ago.  There, the mother wanted to return to Australia from England and the court ruled that that was perfectly acceptable because contact with Dad on the Internet was good enough for the children and good enough for him.

So it’s with a deep sigh of relief that I’m able to say that neither the trial nor the appellate court resorted to that worst of all possible “solutions” to a mother’s move-away request that would take the father out of his children’s lives forever.

Still, it’s worth mentioning the reasoning of British courts in move-away cases.  One of the major – if not the major – factor in the courts’ determinations is the “distress” caused to the mother by remaining.  Never mind the father, the courts want to know how upset she’d be by being chained to the island nation. 

And that too is interesting.  That’s because the single most common rejoinder over the years to the assertion of fathers’ rights in custody disputes is “it’s not the parents who are important, it’s the children.”  That is, if Dad really cared about the kids he’d butt out of their lives instead of asserting his rights.

Now the ways that argument is bogus are too numerous to list, but the main one is that fathers enhance child welfare.  So Dad’s insistence on his parental rights is, with rare exceptions, in the child’s best interests.  Opponents of fathers believe the wellbeing of children and fathers’ custodial rights are mutually exclusive.  On the contrary, each promotes the other.

Turning back to move-away cases, it’s always intrigued me how courts in this country and England place so much emphasis on Mom’s state of mind.  If staying in a particular place distresses her, children’s rights to their father and father’s rights to his children all take a backseat.  The reason? 

Until now courts in England and Wales have followed the general principle which was that if refusing the primary carer”s (usually the mother) reasonable proposal for relocation of her family life should impact detrimentally on her emotional state, that in turn would impact detrimentally on the welfare of her dependent children. And family courts work on the basis that the welfare of the child is paramount.

See?  The courts rule openly that mothers and children’s interests are the same.  If she’s upset, so will they be.  But when it comes to fathers, the opposite assumption wins the day.  Depriving children of their father, in any of a number of ways, is assumed to be either neutral or actually in their interests.  The interests of fathers and children are assumed to be antithetical, so it’s OK to separate them, if doing so satisfies Mom.

As President Obama said, “When Mama’s happy, everybody’s happy.”  Well, not everyone, but we know what he meant.

It’s straightforward example of a double standard in a court system that’s stuffed to the gills with them.

Meanwhile, back in the U.K., the appellate court strongly encouraged Mom and Dad to make the best of things there for the time being. 

The court told the Canadian couple to explore an immediate future in the UK, flowing into a planned future move to Canada.

Here’s my prediction:  a few months will pass and Mom will go back to court explaining again how very distressed she is.  Dad will reply that he’s still doing a lot of the child care and doesn’t want to move to Canada.  The court will find that he hasn’t made plans for “flowing” back there and his failure impermissibly contributes to her distress.  And she’ll be free to go.

We’ll see.

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