Open UKLSR Volume 1(2) - Uklsa

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CONTENTS ARTICLES In#Whose#Best#Interests?#Reconsidering#the#Judicial#Approach#Adopted#in# Relocation#Disputes.#..........................................................................................................................#1! Oliver Powell, University of Oxford # Google’s#Decision#to#Permit#Competitors#and#Rivals#to#Purchase#Keywords#of# Trademarks#Acceptable#as#Long#as#it#Does#Not#Cause#Consumer#Brand#Confusion #..................................................................................................................................................................#13! Ren-En Lim, Liverpool University # The#Human#Rights#Act#Section#2(1)#Taken#into#Account#................................................#23! Ciju Puthuppally, University of Cambridge # Violence#Against#Women#During#Armed#Conflicts#............................................................#39! Zara Qurashi, University of Nottingham # Was#The#Abolition#of#the#Doctrine#of#Doli#Incapax#Necessary?#...................................#50! Hannah Wishart, Manchester University # Battling#Bolam;'Doctors#1,#Patients#0#......................................................................................#64! Dr Kim Castle, Bangor University # CASE NOTES Al#Skeini#and#Others#v#United#Kingdom#(2011)#53#EHRR#18#........................................#89# Tom Hamilton, University of Cambridge Campbell#v#Mirror#Group#Newspapers#Ltd#[2004]#UKHL#22.#The#Relationship# Between#the#European#Convention#on#Human#Rights#and#Privacy#in#the#Common# Law#.........................................................................................................................................................#94! Emily Whittaker, Exeter University # Judgment#of#the#European#Court#of#Justice,#13#October#2011,#Pierre'Fabre'Dermo/ Cosmétique'Sas,#C_439/09#Concerning#Another#Restriction#by#Object#on#Internet# Sales#Ban#...........................................................................................................................................#100! Dr. iur. Verena Klappstein, London School of Economics
IN WHOSE BEST INTERESTS? RECONSIDERING THE JUDICIAL APPROACH ADOPTED IN RELOCATION DISPUTES. Oliver Powell, University of Oxford I – Introduction The question of whether a primary carer should be permitted to relocate with the child outside the United Kingdom against the wishes of a non-resident parent is a fraught one. 1 These relocation disputes have been described as the ‘San Andreas fault of children’s law’. 2 Indeed, they raise some of the most complex questions in family law. This paper seeks to demonstrate that the approach to relocation disputes in England and Wales does not necessarily produce results that are in the child’s best interests. This proposition will be developed in three stages. Firstly, it will be evidenced that decisions from the Court of Appeal (CA) are sending messages to trial courts as to specific factors they should or should not focus on in relocation disputes. It will be argued that this approach prevents a careful evaluation of each case, and risks leading to a conclusion contrary to the child’s best interests. Secondly, an assessment of social science research from other areas of child law will be undertaken to demonstrate that what is in the child’s best interests in relocation disputes is complex: this complexity militating against the CA’s inflexible approach to relocation disputes. Finally, the approach to relocation disputes in New Zealand, Australia and Canada will be examined; this enquiry showing that, although each jurisdiction focuses on the child’s best interests as the main consideration, none approach the question like England and Wales. Given these findings the paper will conclude that the current approach to relocation disputes in England and Wales should be reconsidered, as it risks producing results that are not in the child’s best interests. In light of this, alternative approaches will be evaluated, with the Declaration developed at the Conference on International Relocation in Washington considered the best alternative. II – Current Law Applications to relocate with a child from the UK where a residence order is in force are governed by section 13(1)(b) of the Children Act 1989: the child’s welfare being the paramount consideration. 3 The now-leading case on this issue is Payne v Payne, 4 involving an appeal by the father against his ex-wife’s permission to relocate with their child to New Zealand. The mother was the child’s primary carer, the father enjoying substantial contact. Dismissing the appeal, the CA considered the approach taken by UK courts to relocation applications outside the jurisdiction, with the President and Thorpe LJ giving full judgments. However, as George states, it is 1 The primary carer is usually the mother, and the non-resident parent the father. For convenience this is assumed herein. 2 Richard Chisholm, ‘The Paramount Consideration: Children’s Interests in Family Law’ (2002) 16 AJFL 87, 107 3 Children Act 1989, s 1(1) 4 [2001] EWCA Civ 166 (CA)
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Page 5: Acknowledgements The UK Law Student
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