BROTHERS DIVIDED BY ATLANTIC IN CUSTODY COURT BATTLE

[Alison J Stevens]

Brothers divided by Atlantic in custody court ruling

Two brothers will be separated by thousands of miles after a judge ruled one could live with his father in America, while the other should stay with his mother in the UK.

By Caroline Gammell5:14PM BST 18 Apr 2011

The older boy, aged 16, wanted to move with his father because of the “dull and depressing” English weather and the chance to play ice hockey and baseball.

However, his 12-year-old sibling – although initially excited about the move – became more ambivalent and was doing well at his school in the Durham area.

Last November, a judge at Middlesbrough Court decided that the brothers should both go and live with their father.

However, after the mother took the case to the Court of Appeal, Sir Mark Potter, a senior family judge, ruled that the boys should not be considered a “unit” and could be separated.

He said the younger boy – known only as C – had been “wrongly subordinated to the wishes and perceived interests” of his older brother, known as B.

The ruling came six months after a 13-year-old schoolgirl told the Court of Appeal she would rather live in Middlesbrough than the Canadian prairies.

Emily Gaffney said she would prefer to live with her mother in Teesside than with her father because there was more to do: “I never, never in my whole life want to go back there. It’s just more exciting here.”

Yesterday, the court heard that B had always wanted to leave England, and had said: “It’s my life anyway and I believe I should decide which path my life takes.”

Described as “an extremely thoughtful and articulate young man” who has already moved across the Atlantic, B said he preferred the hot summers and snowy winters of his new home.

C said he also wanted to go and told the court in Middlesbrough: “I think I should have the same right to choose as everyone else, just because I am 12 does not mean I can’t think for myself.”

In November last year, the county court gave the father permission to leave England with both boys.

However, the mother subsequently appealed on the behalf of C.

The court heard that she realised there was little point arguing for her older son, after seeing his “jubilation” at the news he would be going to America.

But after he left, she noticed C was becoming increasingly ambivalent about the move.

Being separated from the brother he greatly admired had not affected his “cheerful demeanour”, or his school results, the court heard.

The boy now wanted the court to make the decision about where he should go, rather than having to make the difficult decision of choosing between his parents.

Sir Mark, sitting with Lords Justice Lloyd and Patten, said the judge in Middlesbrough “fell into clear error” by treating the boys as “a unit”.

He said although the brother would now only communicate via telephone, Skype and holidays, there was “no overwhelming reason” to break the status quo and send C to live with his father.

Sir Mark said “the right outcome” was that C should spend his childhood in England with his mother and then decide where he wanted to live when he became an adult.