Relocation cases bore me, so I would have skipped over this one. But it was Justice Peter Jackson, who is generally worth reading. And it has an unusual wrinkle. Stick with it.
The argument in the case was whether a 15 year old and 13 year old should go and live with their father in Switzerland, or stay with mother in England. The parties clearly have money – whether they have more money than sense is a matter for readers to draw their own conclusions about.
S v S (Relocation) 2017
35.I record that the legal costs globally in this case are outrageously high. The estimates that I have been given concern only these proceedings relating to the boys. They do not concern the other costs that the parties are responsible for in relation to the divorce and any financial aspects. The father estimates his costs of this application at £493,000. He has also paid or taken responsibility for costs of £174,000 in relation to the children’s costs, so taken together with the mother’s costs, the total comes to some £938,000 of which the father is already responsible for two thirds of a million.
2.What does have to be remembered is that the court can only work with the material with which it is provided. Often, as here, it is not possible to produce a truly good outcome but only to choose the one which is least bad. In a case of this kind, where a family has every conceivable material advantage, it is easy to forget the old truth that money cannot buy you happiness. It certainly has not done for this family. Instead, the pursuit and accumulation of wealth that has created conditions that have left everyone spoilt for choice and thoroughly miserable. The fact that the family has spent just shy of £1 million on these proceedings, proceedings of no particular complexity that only began in April, is fairly typical. This is not empty moralising. If the parents and children cannot return to a more considerate, a more normal way of behaving, the future is bleak whatever the court may decide. In saying this, I am not only speaking to the parents but also to the three children who are old enough in their own ways to do their bit to repair the damage that has been caused.
That led me to do a google search for ‘costs to hire a private jet’ by way of comparison, which if nothing else, should get me more glamorous pop up ads. You can hire a private jet to take you to Nice for £10,000. So let’s say Switzerland is about the same. The father could have flown the children to Switzerland by private jet every weekend (and back) 32 times for what he’s paid lawyers to argue about the case. As the youngest child has 250 weekends left of his childhood, that does leave a bit of a shortfall, but (whisper it) there are cheaper methods of transporting children to Switzerland.
You can buy a 4.5kg bar of Toblerone for £75. So dad could have bought 8893 huge bars of Toblerone. THAT’S FORTY TONS of Toblerone, people.
(If anyone wants to pay me for my legal advice in Toblerone, I am willing to negotiate. I would give a discount for Terry’s Chocolate Orange…)
Anyway, the real purpose of the blog post is the bit that sneaks into that paragraph on costs
He has also paid or taken responsibility for costs of £174,000 in relation to the children’s costs
The children, if they are of sufficient age and understanding, are entitled to seek their own legal advice, and they can, if they make an application be represented in the proceedings. The solicitors have to get paid, and there would be no legal aid for children in private law proceedings who instruct their own solicitor (i.e there’s not a court-appointed Guardian) so someone has to pay it.
The Judge is not critical of the solicitors involved (who are very experienced and expert in these international cases) but it is an unusual circumstance for one party to litigation funding the children’s own lawyers. More so when you learn that the mother says that she didn’t know that the children were having consultations with their own lawyers and did not know that they were going off to meet with them. Nobody has done anything WRONG here, but it being an issue that I’ve not encountered before, it does throw up some interesting questions.
It feels a bit weird that one parent pays the legal costs of the child. That feels a bit conflict-y, no matter how much effort everyone puts in to ensure that there is no conflict between independence of the advice and the person who is paying for that advice. It feels a bit Sussex Justices – there may be nothing wrong whatsoever happening, but if you were on the other side of that equation, would you feel that this is entirely fair?
28.I now add a coda concerning the impact of the legal representation of these children upon their welfare. The sequence of events concerning the children’s lawyers is this; in February 2016 the father’s Russian lawyer, prompted by his English solicitor, contacted Ms Hutchinson who happened to be in Russia at the time. In March 2016, on her return Ms Hutchinson met the boys in a café close to their school, unknown to the mother. Dawson Cornwell’s fees were paid by the father and nothing happened until a year later. In March and April 2017 when the father’s first application was issued, the boys communicated a number of times with Ms Hutchinson and her colleague, Ms Fleetwood, by social media. In April Ms Fleetwood met D at the school without the mother’s knowledge. She wrote to the mother’s solicitors subsequently that D had made her aware of the relocation application that the father had now issued; in fact Dawson Cornwell had learned about this from the father’s solicitors a fortnight earlier.
29.In May 2017, the boys came to court and later that month they were joined as parties by Pauffley J. In June 2017, the boys met their solicitors at Dawson Cornwell’s offices twice with the knowledge of the parents, and in July 2017 they met the solicitors and counsel locally to their home with the knowledge of both parents.
30.The mother understandably complains that, entirely without her knowledge and at a time when she was having difficulty parenting the children, the father was funding a legal team for the boys, now to the tune of £174,000. She says that this just added to the other ways in which the father was undermining her authority.
31. At my request, Mr Vine QC has addressed the duties of solicitors in these circumstances in a short position statement. That reads as follows:
“In so far as there is further clarification on the obligations of a child’s solicitor in this difficult area:
(1) The Solicitor’s Regulatory Authority (SRA) Code of Conduct secures the obligations to act with integrity (Mandatory Principle 2), not to allow the solicitor’s independence to be compromised (Mandatory Principle 3), and to protect the client’s interests (Mandatory Principle 4 and Chapter 1.1);
(2) The Solicitor’s Regulatory Authority (SRA) Code of Conduct further requires the solicitor to keep the client’s affairs confidential unless disclosure is required or permitted by law or the client consents (Chapter 4.1);
(3) The SRA Practice Note Acting in the absence of a children’s guardian suggests the solicitor is mindful of a guardian’s PD16A duties;
(4) As a matter of general principle, parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision, Gillick v West Norfolk and Wisbech Area Health Authority  AC 11, Lord Scarman at 186;
(5) On familiar principles, a child has an Article 8 right to respect for their privacy in the setting of client/professional information;
(6) Again on familiar principles, a child has a right to confidentiality in the same setting;
(7) The entire area of a child’s Article 12 UNCRC right to participation in proceedings concerning them is one that continues to evolve, Re W (A Child)  EWCA Civ 1051, Black LJ §26 and Re F (Children)  EWCA Civ 546, Sir James Munby P §41.
There would appear to be no direct guidance on the obligations in question, and the answer must be that the obligations will depend upon the nature of the information presented and the instructions given to the solicitor by the child, and their judgment as to their child client’s best interests. Information relating to child protection or the safety of others will generate a more obvious response than information relating to a private dispute.
The child’s solicitor is in a delicate position, calling for sensitivity to the competing interests of the child and parent.”
32.I agree with all of that and I particularly wish to record that the lawyers acting for these two children are among the leading experts in representing children, particularly in international cases. However, I am left with a sense of unease. I am not sure that Mr Vine’s analysis, correct as far as it goes, is the whole picture. There is a tension between the right of children to receive legal advice and the need for parents to know what is happening in children’s lives so that they can look after them properly. For the lawyers to be having secret meetings with children in cafés and at school without the knowledge of their primary carer inevitably leaves a sour taste. How, for example, is the school to react? Is it right that one parent should know what is happening and pay for it while the other is left in the dark? These are also child welfare issues that need further thought but, having identified them, I say no more about it on this occasion.
The boys are actually moving to Switzerland as a result of the case, so in so far as spending two thirds of a million pounds on lawyers could ever be said to be money well spent, perhaps this was. Come to think of it, where would you even KEEP forty tons of Toblerone?