Voice of the Child in Mobility Cases: an Important decision

Photo by Kat Jayne (courteously of pexels.com)

In one of the most compelling decisions I have read in a long time, a British judge decided to disallow a 14-year-old’s proposal to move to another country with his father, even though the son gave evidence that he very much wanted to move.

It is a touching decision that almost made me cry, mostly because of the profoundly beautiful way it is written.

And it gives those of us who do mediation, med-arb and parenting coordination some new ideas for hearing the voice of an older child in a powerful and respectful manner.

The judge decided to write his decision in the form of a letter to the boy, and what a letter it is.

Justice Peter Jackson had to decide whether allow a 14-year-old child to move with his father from the UK to Scandinavia.

The boy, “Sam,” had his own lawyer and wanted to give evidence at the hearing. Sam’s mother and step-father, with whom he lived, and the social worker who had met with him disagreed, suggesting that the judge meet him privately instead. Justice Jackson did both, allowing Sam to give evidence at the hearing, but did not permit either parent to question him. Rather, each parent was asked to prepare five questions which Justice Jackson then put to Sam.

As Philip Epstein notes in his comment on this case, “This is a sensitive judgement and deals very thoughtfully with the parenting and mobility aspects of this case. It is particularly interesting to review the specific orders made by the learned trial judge in order to reduce further conflict for this child.”

Justice Jackson is direct in his writing style, and he tells the story in a way that Sam will understand. It is an extension of the rule arbitrators follow, which is to write our decisions for the benefit of the losing party. Justice Jackson writes for the benefit of the person most affected— the child.

“I was impressed with the way you gave evidence. You are of an age where your views carry a lot of weight with me,” the judge began.

Noting that Sam’s parents have been litigating custody issues since Sam was one year old, Justice Jackson writes that “Your parents have very different personalities. There is nothing wrong with that….  What is of concern to me is this. I see your mother and (step-father) as being content with the life they lead, but I don’t see that in your father. He is man with some great qualities….. but underneath that, I see someone who is troubled, not happy.”

“My view”, he continues,” is that you brought the proceedings mainly as a way of showing your dad how much you love him. It was mainly to meet his needs and not yours. I have seen the self-centred way that he behaves, even in the court room, and how he makes sure everybody knows how little respect he has for anybody who disagrees with him.”

“And it is not just that. I believe that your father has in some ways lost sight of what is best for  you. He told me he has absolutely no responsibility for the state of the relationship between him and your mother….”

“My conclusion about all of this, I’m afraid, is that, whether he knows it or not, your father has a manipulative side.”

Finding that the father had provided the court with no evidence about his plans for Sam’s care and upbringing in Scandinavia, Justice Jackson noted that all the evidence before him showed that Sam was doing very well in his life in the UK. All the factors we consider in mobility cases supported this finding: Sam’s friends, family, school life and music were all in England.

In denying the request to move, Justice Jackson confirmed the law as we know it; children have a voice but not a veto.

Thanks to Philip Epstein for sharing this wonderful case.

(Between a Father and A Mother and Stepfather and a Young Person, (2017) EWFC 48.)

About Hilary Linton

Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. After litigating family and civil disputes for 14 years, she started Riverdale Mediation which is internationally recognized for high quality dispute resolution services and innovative ADR training. Teaching hundreds of adults every year, Hilary and her team at Riverdale have designed a wide range of courses. Hilary has been honoured with the inaugural James G. McLeod Professorship in Family Law at Western University Law School, and the Ontario Bar Association Award of Excellence in ADR in 2014. She has taught many ADR courses as an adjunct professor at Osgoode Hall Law School, Western Law and Toronto Advanced Professional Education.

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