Payne is dead; paramountcy is king in relocation cases

family law

OK, there is nothing new in that headline, which refers to the recent Court of Appeal decision in the international child relocation case Re M (Children). In fact, I don’t think Re M tells us anything new at all. Instead, it emphasises what we already know: that the sole criterion for deciding such cases is the welfare of the child.

Now, before I go any further I should explain the mention of ‘Payne’ in the headline, for the benefit of those who do not know what it refers to. It is a reference to the 2001 case Payne v Payne which, until recently, was the leading authority on international child relocation cases, i.e. cases in which one parent is seeking the permission of the court to relocate with the child(ren) to another country. The Court of Appeal in Payne v Payne set out guidance for how such cases should be decided. However, that guidance was criticised for placing too great an emphasis on the wishes and feelings of the relocating parent, and for being couched in terms that assumed that the mother was the caring parent, and therefore the one that sought to relocate. Recent cases, such as the 2015 case Re F (A Child), have ‘drawn back’ from the Payne guidance, and made it clear that there are no presumptions when it comes to international relocation: the matter should be decided simply by reference to the principle that the child’s welfare is paramount.

Re M concerned two children of a Russian mother and a British father. The parents met in Moscow in 2002 and thereafter lived there until they moved to Paris in 2005, where they were married. The first child was born in Moscow and the second child was born in Paris. In 2006 the family moved to London, where they have remained. Unfortunately, the marriage broke down and the parties separated in February 2011, with the children residing with the mother and the father having contact with them (since the separation there has been virtually continuous, and extremely acrimonious, litigation between the parents over the arrangements for the children).

In November 2015 the mother was offered a position with a company in Moscow. She then applied to the court for permission to remove the children permanently from the jurisdiction to Russia, where she would live with them and her new husband. The application was heard by His Honour Judge Wallwork in the High Court who, on 22 July last, found in favour of the mother and granted her permission to relocate to Moscow with the two children. The father appealed to the Court of Appeal.

Lady Justice King gave the leading judgment of the Court of Appeal. Although she subsequently went into rather more detail, she summarised the law on international relocation cases rather succinctly:

“There is only one principle in relocation cases and that is that the welfare of the child is paramount; there are no presumptions and any guidance is exactly that, guidance, and, as such, designed to be of assistance (or not) depending on the circumstances of the case. It is unnecessary and inappropriate to trawl through the myriad of authorities in relation to relocation cases; after all in how many different ways is it necessary or helpful for it to be said that the welfare of the child is the paramount consideration?”

Counsel for the father sought to utilise this by suggesting that Judge Wallwork had fallen into error by focussing upon what had been said in Payne and attributing too great a weight to the mother’s relationship with her husband, at the expense of focus upon the children’s relationship with their father, and other welfare issues. Lady Justice Black, however, did not accept this. The judge, she said, “did not allow himself to be constrained by the Payne guidance nor did he approach the case on the basis that, because the step-father would go to Moscow whatever the outcome of the case, that it led to any sort of a presumption in favour of allowing the mother’s application to relocate. The judge specifically reminded himself that any sort of presumption was incorrect”. On the contrary, she said: “The judge’s judgment was, throughout, couched in the language of “welfare””.

In slightly amusing language, Lady Justice Black went on:

“The judge’s bald reference to the earlier cases (which themselves emphasise that the best interests of the children are paramount) cannot however be interpreted as an indication that the judge was approaching the case from some sort of antediluvian gender-based perspective. Indeed in the present case the judge was wholly contemporary in his thinking expressing the view that, providing the welfare of the children was not compromised, the mother as well as the father and step-father was entitled to career and business aspirations.”

Counsel for the father put forward other grounds of appeal, but they do not particularly relate to the subject of this post, so I will not go through them. Suffice to say that Lady Justice Black did not accept those grounds, holding that in her judgment the judge had carried out a proper welfare evaluation, and had concluded that it was in the best interests of the children to relocate.

The full report of Re M can be found here.

Photo of Paris by Cristian Bortes via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

Bruno Ditri - November 8, 2016 at 3:52pm

The litigant-in-person father in Re D (2010) EWCA Civ 50 is to be credited with the now oft-cited statement that “Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent”.

The father’s arguments were accepted by Sir Nicholas Wall, the former President of the Family Division and repeated in his reserved judgement.

Wall did not grant the father permission to appeal because the case for removal was strong when assessed using the principles of Payne v Payne!

Payne v Payne is a lame duck, on a life support machine, pleading for a humane and respectable death.

The embarrassing problem faced by the British legal fraternity is that, unless and until Payne v Payne is officially put out of its misery by the Supreme Court, it remains in place, causing much difficulty for legal practitioners.

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