About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Tuesday, 13 July 2010

Money: when is it relevant to children cases?

I am grateful to Peter Ryder, solicitor, for the following thoughts on residence, parental responsibility & relocation. He writes:

"I do think we family lawyers need to start connecting the court's power to make orders under s. 8 CA 1989 with judicial unwillingness to link those powers to the imposition upon non resident parents of responsibility as parents. In the case of T v B [2010] EWHC 1444 the court recognises that, in a case where unmarried parents jointly enter into an AID programme which results in the woman (or one of the women in a same sex situation) giving birth to a child, it lacks the power to treat the mother's former partner in that joint endeavour as a parent despite having earlier made a joint residence order in favour of that former partner. The net effect is that the mother with the child is left to provide for the child and the ex partner with joint residence escapes all contributory financial responsibility, at least in law. No ordinary person would see that as justice and neither should we.

The problem encountered in T v B can only be resolved by legislation but not so other, similar situations.

The same disjoinder of the law and justice can also apply to opposed relocation cases, whether within or outside the jurisdiction. The case law on relocation is generally silent on the question of whether or not the parent who objects to relocation has been providing child support to the best of (usually) his ability. This is, of course because the courts have imposed a de facto embargo on that issue being raised in cases where s. 8 orders are sought. I have encountered numerous cases where a non contributing father's opposition to relocation inside the UK was listened to with great sympathy by the courts whilst the mother's evidence on her economic struggle became a source of judicial irritation when the father's failure or unwillingness to provide child support was raised. Mothers in such situations may feel entitled to conclude that the court favours the interests of the feckless freeloader over those of the working parent.

Since it is nearly always the mother whose relocation is opposed I wonder how long it will be before someone argues that fettering her right to live where she chooses is discriminatory of women. After all there is no reported case of an absent parent being refused permission to relocate even though there must be some cases where a child has suffered as the result of a cherished father deciding to live drop out of his or her life."

A timely thought - Clare Renton in her as usual excellent article on Relocation clearly identifies a certain sea change in judicial thinking on relocation with courts showing slightly more support for the non-resident parent. I don't suggest that the sea change is wrong but I am involved in advising a mother with regards to relocation where the father is on benefits (for reasons which are not clear he seems not to have worked for a very long time and is on DLA but not somehow having any difficulties managing contact etc) and making no contribution to the child's maintenance (although he somehow seems to manage to pay for flights and related costs to get to contact) and is also therefore entitled to legal aid. The mother has relocated partly for work prospects having lost a job and needing to requalify which she could not do where she was originally living. She has been a student teacher for the last year but is now qualified and hopes to have a job soon which will impact on her qualification for legal aid. The court has allowed her to change location but will not yet confirmed that the permission is permanent and the father keeps pushing the case back into court requiring her to take time off, travel to the hearing with associated costs and make complicated arrangements for the care of his child as well as her other older child. As Peter suggests she is often at least impliedly rebuked by the courts if she raises any issues about money and is left feeling that the court considers her relocation to be in the lifestyle choice category rather than as she sees it an economic imperative if she is to provide her children with a stable and comfortable home environment.

Of course, the courts attempts to separate money and children are admirably well-intentioned. Some non-resident parents are genuinely unable to better their financial position and obtain employment and it cannot be right therefore to hold it against them that they cannot make a contribution. Equally some resident parents are in the same position and the courts are rightly reluctant to say that the fact that one parent can offer a higher standard of living to the child is a reason for depriving the less well off parent from looking after the child. It may, of course, present advantages in that a non-working resident parent can offer the child full-time care. It may be heresy to say this out loud but the truth is also that parents who know that litigation is looming with regards to children (not to mention divorce) deliberately place themselves in a position where they are not in employment in order to qualify for legal aid (obviously if they do so obviously we would have a duty to the public funding authority to spill the beans but most parents who do this are clever enough to do so without making it obvious). How often have you been in a case where the Judge will say with a sigh when dealing with a particularly irritating contact dispute which he might have expected to settle by agreement - and I suppose both parties are in receipt of public funding? Experienced and sensitive judges will take on board that the fact that they are not supposed to pay too much attention to financial contributions in cases involving children does not mean that it is necessary unreasonable for one parent not to view the other one as 'responsible' when they are not making a financial contribution or to refuse to make financial contributions when they are not being allowed contact for no good reason. The trick, of course, is to work out the difference between the genuinely can't pay as opposed to the not willing to pay for all the wrong reasons.


Peter said...

Not just to herald the fact that I now know how to post a comment I really do want to add something. The issue of the non-paying but nontheless demanding absent parent can be extraordinarily difficult to resolve fairly but difficulty is never a good excuse for a refusal to think. It is probable that, in the great majority of cases where it could be raised the current attitude prevents unfairness being worked against absent parents who are genuinely too poor to provide support but does anyone really believe that this predetermined approach is always fair?

Anonymous said...

In cases where re-location has taken place but the absent, non-paying parent has opposed this, why should the non-paying but nonetheless demanding absent parent be allowed (and publically funded) to exist in a world in which money is no object, whilst the primary carer, by virtue of the realities of life and demands of bringing up and supporting children, have to face not only the needs of her children alone but also pay for the requirements of the demanding absent father? Since the primary carer's responsibilities as a parent include the financial burden of providing for her children, why should a father seeking parental responsibility be allowed to obtain this without addressing his financial responsibility at all? Non-working wives of men who have to re-locate for employment purposes invariably have to relocate regardless of their own wishes if that is the only means by which the children and the family unit can be supported. Why therefore does the absent, demanding, non-paying, non-working, but perhaps able-to-work-if-he wanted-to parent obtain rights without responibilites?

Anonymous said...

To keep my comment breif I would just like to add so many fathers want to see their kids but the mothers stop it, our legal system is sexist, what ever the woman says is gospel. The system pays the mother more money the less the father sees the kids. If a father pays this money does he have a right to see his kids? the answer is NO.
So many fathers are persecuted by the mothers and the system thats why they avoid paying. You miss the point of a justice system, it must be fair to all, our system is not.
A mother can refuse access to the kids becasue she feels like it, becasue she wants more money from the CSA etc. a father has to fight for every second with his kids, sometimes with the humiliation of being supervised just because the mother says so.
Mothers keep the kids fathers pay the money - where does it say that in the law?

Anonymous said...

With regards to the last two anonymous comments - to be blunt a great many non-resident fathers simply do not pay anything at all for their children's upkeep and their financial needs should not just be allowed to fall on the taxpayer, but having said that I really do not understand why money should have any bearing on parental responsibility (PR) at all in re-allocation cases.

Abigail said...

I'm currently looking for advice on my situation, and i have no clue where to turn to but this poist seems quite relevant. i have a 3 month old baby, i am on my own living with my parents and my parents are the ones to mainly pay for things as i am un employed at the moment but about to start work. the father and i recently split up because of his attitude towards me and my family, being so ungrateful to them, and moody and sometimes aggresive to me. He demands to see the baby by text and texts in a quite arrogant way. though he has never contributed a penny (though can afford plenty of things for his own lifestyle) and also gave quite shabby christmas presents. He is on the birth certificate which i regret giving him equal parenting rights.....where do i stand?

quick quid said...

I had already heard different situation like this. There are so many children who are suffering because of lack in financial assistance from their parents. For me, it would be not a problem if parents are responsible enough for looking a job that could support their children.