FAMILY AND CHILD LAW: NEGOTIATION

Introduction

Addressing the position of the parties on these facts, their views as to desired outcome are completely opposed in respect of where the children should be live. It is interesting to note however, that whilst Isabelle wants to relocate to Canada,[1] she suggests that she may remain in England if the children cannot move with her. In other words, she may be open to staying to have a better relationship with the children. The importance of this is that Isabelle is not completely inflexible.

Initial Discussions with Isabelle

Two important initial points must be made clear to Isabelle. The first, is that the Court will only make an order in respect of children if it believes that it is necessary for the children’s best interests.[2] Secondly, it is the children’s wellbeing that is paramount in all considerations for these issues.[3] Even though previously the Courts may have suggested that the effect on a parent not being able to relocate should be given great weight,[4] this approach is now considered wrong and the impact on the parent is only one of several factors taken into account when assessing the effect on the child’s welfare.[5] In this respect, the welfare-checklist factors[6] are relevant considerations.[7]

To this end, Isabelle must, prior to commencing negotiations, be made aware that she should approach the matter by considering what approach the Court might take. The CAFCASS report, whilst not making any specific recommendations, suggest that an order may be necessary in this circumstance and therefore, whilst the Court is not obliged to make an order of the type sought by the parties,[8] is likely to do so. This means that Isabelle should be made aware that if she does not reach a negotiated settlement, the Court may make orders of the type sought by Russell. It may not do, of course, but it would be wrong for Isabelle to enter negotiations believing that the Court will favour her position in any way. This approach may assist Isabelle in being more open to compromise.

Furthermore, Isabelle, in her email, demonstrated a degree of anger towards Russell in respect of her assertions regarding to affairs and drug use. Isabelle also shows a great deal of animosity towards Destiny. She should be made aware that this kind of approach will not assist in terms of engendering co-operation from Russell, and may ultimately be damaging should the matter proceed to Court.[9] In this respect, the authority on these matters will consider the true reason for the wish to relocate,[10] and may consider that Isabelle’s real reason for wishing to take the children is to limit their contact with Russell, rather than her suggested intention that the move would give them a new start and a better standard of living.[11] Isabelle would also be extremely ill advised to mention Russell’s alleged drug use, given that she freely admits that she has used drugs recreationally.

Negotiation Options

Contact, is a fundamental right for children[12] and parents.[13] It seems clear that Isabelle will not convince Russell that the children should be allowed to leave with her unless she is able to provide a robust solution in respect of contact.[14] To this end, she must offer contact for all or most of the children’s school-holidays,[15] and must be open to indirect-contact(Skype)[16] in Canada at other times. It also seems sensible that she should consider addressing the issue of how daily contact can be affected given the time difference. Although the children are perhaps a little young, offering to provide them with some way of contacting their father whenever they want may assist. It seems that she may also have to accept that the children will have contact with Destiny and that they enjoy the contact they have.

Whilst this approach may assist Isabelle, it seems that the CAFCASS report is moderately in favour of retaining the status-quo[17] and, because this is something that the Courts consider very important in respect of welfare,[18] (this approach is reflected throughout the welfare-checklist comments made by CAFCASS) it is possible that Isabelle may need to make concessions beyond simply allowing extensive contact.

It is, at this stage, that Isabelle may be faced with a difficult decision and it may be appropriate to expressly ask her prior to negotiations whether moving to Canada, promotion and Pierre are more important than regular contact with the children.[19] This may shock her, but will clarify the position in her mind.

If Isabelle decided to move to Canada alone, it seems reasonable for her to be able to assert that similar robust contact arrangements are put in place. It also seems that, based on the CAFCASS’s view that the children enjoy contact with their maternal grandparents that such an approach may be acceptable to the Court and ought to be accepted by Russell. If Isabelle decides to remain in England, the position becomes less complicated, in that the current residence and contact provisions can be maintained. It seems reasonable that if Isabelle can show that she can alter her work patterns accordingly, she could seek to extend this contact, but since she asserts that the children spend 50% of their time with her already, she may have difficulty in justifying further contact. It is important to stress to Isabelle that the fact that she does not like Destiny is irrelevant because, according to CAFCASSS, the children like her and she can take care of them.[20]

Conclusions

If Isabelle is intransigent regarding relocation, the only concession she can make is to offer extended contact. On balance, the Courts may favour the status-quo and prevent the children leaving for Canada. Presuming that Russell is properly advised and aware of this, it seems likely that he will retain his current position. In this circumstance, Isabelle must attempt to secure her regular contact with the children. This will be the case regardless of whether she chooses to remain in England or leave for Canada without the children. It seems likely that the Court would support contact.

1000 Words

Bibliography

Primary Sources

  • Table of Cases

K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793

K v K [1992] 2 FLR 98

M v F [2016] EWHC 3914 (Fam)

Payne v Payne [2001] EWCA Civ 166

Re AR [2010] EWHC 1346

Re B (RO: Status Quo) [1998] 1 FLR 368

Re F (International Relocation Cases) [2015] EWCA Civ 882

Re H (Children) (Residence Order) [2007] 2 FCR 621

Re L (A Child) [2016] EWCA CIV 821

Re W [2005] EWCA Civ 1614

  • Table of Legislation: UK

Children Act 1989

Table of Legislation: EU

European Convention on Human Rights 1950

The United Nation Convention on the Rights of the Child 1989

Secondary Sources

  • Table of textbooks
  • Gilmore S and Glennon L, ‘Hayes and Williams’ Family Law’ (5th edn, OUP 2016)
  • Herring J, ‘Family Law’ (Longman Law Series) (7th edn, Pearson 2015)
  • Lowe N and Douglas G, ‘Bromley’s Family Law’ (11th edn, OUP 2015)

[1] Children Act 1989, s 8(1).

[2] Children Act 1989, s 1(5).

[3] Children Act 1989, s 1(1).

[4] Payne v Payne [2001] EWCA Civ 166.

[5] Re F (International Relocation Cases) [2015] EWCA Civ 882 [49].

[6] Children Act 1989, s 1(3).

[7] Re F (International Relocation Cases) [2015] EWCA Civ 882.

[8] Children Act 1989, s 1(3)(g).

[9] K v K [1992] 2 FLR 98.

[10] Payne v Payne [2001] EWCA Civ 166 [40] (LJ Thorpe).

[11] K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793.

[12] United Nations Convention of the Rights of the Child, Art9(1).

[13] European Convention of Human Rights 1950, Art8.

[14] Re AR [2010] EWHC 1346.

[15] Re L (A Child) [2016] EWCA CIV 821.

[16] M v F [2016] EWHC 3914 (Fam).

[17] Re B (RO: Status Quo) [1998] 1 FLR 368.

[18] Re H (Children) (Residence Order) [2007] 2 FCR 621.

[19] Re W [2005] EWCA Civ 1614.

[20] Children Act 1989, s 1(3)(f).

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