If a relationship breaks down and there are children involved, what rules are applied to cases when one parent wishes to move with the children to another country? In this post, we will be looking at the rules – and how they could change in the future.
External relocation is a difficult subject, and lawyers appear to be particularly exercised by it at present. Here, however, I would like to examine external relocation for the benefit of non-lawyers. It is hard enough when a relationship breaks down, let alone when the child is then going to move hundreds, potentially thousands, of miles away from one parent.
This is a lengthy post, examining the older and more recent judgments that have shaped the rules. When one parent wishes to relocate to another country with the children and the other parent opposes that, there is no perfect answer for what should be done.
The test in Payne v Payne
The case of Payne v Payne (2001) lays down the test for the right to remove a child from the jurisdiction. In Payne v Payne, the mother was from New Zealand and the father was from the UK. There was a residence order in favour of the mother and she took her child from the UK back to New Zealand when the relationship broke down. The father brought proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother had to return to the UK and applied for leave to remove the child permanently. She was successful in her application.
The father appealed this decision, stating that by allowing the mother to relocate to New Zealand with the child, a presumption had been created in favour of that parent. This, he argued, was a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and was also in conflict with the Children Act 1989.
In cases involving children, the child’s best interest and welfare are always of paramount consideration and a judge should not make any decision unless it is in the child’s best interest. In his judgment in Payne v Payne, Lord Justice Thorpe gives very clear guidance on what considerations the judge should have in mind when deciding whether a parent wishing to relocate with the child should be granted leave to do so:
(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
He then goes on to state that he does not wish to diminish the importance attached to the emotional and psychological wellbeing of the child’s primary carer, but that great weight must be given to this consideration when evaluating the child’s welfare.
The principle that the primary carer’s emotional and psychological wellbeing are important factors when determining such cases came to the forefront in a 41-yearold case: Poel v Poel  1 WLR 1469. This was another case in which the mother wished to relocate to New Zealand with her child. In that case, the court held that once the child’s living situation had been established, the court “should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has rightly been given”.
His Honour Judge Langham, who heard Payne v Payne in the county court, states:
The effect on the mother of being forced to stay in England would, in my judgment, be devastating. Having read and (at length) heard her evidence, I have no doubt that her unhappiness, sense of isolation and depression would be exacerbated to a degree which could well be damaging to [the couple’s daughter].
He went on to say that the child’s welfare was of paramount consideration and her future happiness would be best assured by being brought up in a place in which the mother was not merely content, but happy – and this would be in New Zealand. He had made an order permitting the mother to relocate with the child.
However Lord Justice Thorpe, handing down the Court of Appeal’s judgment in Payne v Payne, takes care to state that while great weight should be attached to the primary carer’s emotional and psychological well-being, it should not be elevated into any kind of legal presumption. The judge’s primary task is always to evaluate and uphold the child’s welfare as the paramount consideration – and the inevitable conflict with the adult’s rights is secondary. Under the Human Rights Act 1998 a person has a right to family life; when a child relocates to another country with the relocating parent, the non-relocating parent will lose some of that right, but the first consideration is always the child’s welfare.
In Payne v Payne, Dame Elizabeth Butler-Sloss has also given a very clear judgment of the points that should be considered in such cases. She states:
(a) The welfare of the child is always paramount.
(b) There is no presumption created by section 13(1)(b) in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.
Of course, all of these points are only relevant when there is no issue regarding who is the resident parent. So if one parent has applied for a residence order, this issue must be dealt with before the issue of relocation can be determined.
Criticism of Payne v Payne
Payne v Payne has attracted criticism. It is only 10 years old, but detractors have described it as outdated, arguing that it does not promote co-parenting because it places too much emphasis on the effect on the primary carer if leave to remove the child is refused.
Shared residence orders were not commonplace when Payne v Payne was decided, but have become more common in recent times. The rule in that case was predicated upon a status of sole residence and sole primary carer.
Why Payne v Payne remains the correct test, for now
Re W (Children)  EWCA Civ 345 is a recent case. A mother wished to relocate to Australia with her son and daughter, and the father opposed the application. This case affirmed that Payne v Payne is the correct approach when dealing with external relocation cases. In the first instance the mother’s application was refused, but this was overturned on appeal. It was held that the judge had erred in law by not attaching enough weight to the effect that it would have on the mother if the application was refused.
In the judgment, Sir Nicholas Wall states:
I do not propose to embark upon my own assessment of the criteria to be taken into account when deciding a relocation application. All that I am prepared to state at this stage is that the decision falls to be taken on what the court perceives to be in the best interests of the children concerned. Their welfare is our paramount consideration. The court must apply the criteria and guidance set out in Payne v Payne.
Sir Nicholas Wall has also added an important postscript to his judgment. Last year he criticised Payne v Payne in a case called Re D, in which he stated:
There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.
In Re W, Sir Nicholas Wall expresses his fear that too much weight may have been given to his words. Criticised by Lord Justice Wilson in a case called Re H (A Child)  EWCA Civ 915 for his use of the word “ignores”, he has retracted it. He recognises that until further research is done or Parliament imposes a different test to the paramountcy of the child’s welfare, external relocation cases will remain to be governed by Payne v Payne.
The Washington Declaration on International Family Relocation
In March 2010 more than 50 judges and other experts from 14 different countries met in Washington DC to discuss cross-border family relocation. Their primary objective was to establish whether it was possible to find a common ground between judges from different jurisdictions as to the criteria that should be applied when resolving cases of relocation. They hoped to “promote a more uniform approach internationally”.
The judges and experts agreed that in all applications for international relocation, the best interests of the child should be of paramount consideration. Therefore, there should be no presumption for or against relocation when the applications are made. They provided a list of 13 factors to be used to guide judges when exercising their judicial discretion in such cases. They are as follows:
- The right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest.
- The views of the child having regard to the child’s age and maturity.
- The parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment.
- Where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation.
- Any history of family violence or abuse, whether physical or psychological.
- The history of the family and particularly the continuity and quality of past and current care and contact arrangements.
- Pre-existing custody and access determination.
- The impact of the grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties.
- The nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation.
- Whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden of the child.
- The enforceability of contact provisions ordered as a condition of relocation in the State of destination.
- Issues of mobility for family members
- Any other circumstances deemed to be relevant by the judge.
As you will have noted, Number 8 states that the impact of grant or refusal on the parties is to be considered as well as the impact on the child. Perhaps this demonstrates that the test of Payne v Payne is not as outdated as some would think. The factors in the Washington Declaration are not listed in any order of priority and it is not specifically stated that a great weight should be attached to the impact that refusal would have on the relocating parent. However this seems to be a more balanced guidance, in that the effect on the parties should be considered, albeit with the child’s best interest remaining paramount.
In cases of international relocation there will always be a level of fall out. A parent-child relationship can be maintained even when the parent and child do not physically see one another as often as they would like to, but very few parents are going to be happy if their child is moved to another country and the amount of contact is reduced.
Coming next: internal relocation. What happens when a parent wishes to move somewhere else in the UK?
Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.
UPDATE: It has been an interesting – and lengthy! – debate, but I feel that it has run its course and comments on this post are now closed.