External Relocation: An update.

Children|August 4th 2011

My recent post about external relocation sparked an interesting debate, and it became clear that there are many readers who have personal experience of this subject – and strong feelings about it. A recent case has provided a useful update to external relocation cases, and I would like to draw upon it to explain how the court approaches cases regarding external relocation, when parents share the care of the child more or less equally.

K v K

The case of K v K (children) (removal from jurisdiction) [2011] EWCA Civ 793 concerned a Canadian mother and a Polish father, both of whom lived in the UK. The couple had two daughters and shared residence.

The mother wished to return to Canada following the breakdown of the marriage, as she felt isolated and stressed  but on appeal, the father successfully overturned an order permitting the mother to relocate to Canada with their two children.

Lord Justice Thorpe stated that in K v K the case of Payne v Payne was not the correct test to apply when parents share the care of the children equally. He stated that a later case called Re Y (leave to remove from jurisdiction) [2004] 2 FLR 330 should be applied:

Since the judgment of Hedley J in Re Y there is clear authority that the Payne v Payne line is not to be applied in cases where the applicant shares the care of the children more or less equally with the respondent.

In K v K, the girls spent five nights with their father and nine nights with their mother every fortnight. However the father was released from work on Fridays and Mondays, so he had six consecutive days with them. The mother did not work on Wednesdays, so on that day and at weekends she was with the girls. The remainder of the time the girls spent with their nanny.

Although the mother spent more nights with the girls, they actually had more daylight hours with the father. Therefore there was “not only a shared residence order but also an arrangement for the sharing of care under which the father’s part is not inferior to the mother’s”.

Re Y

In the 2004 case of Re Y, the mother was American and the father was English. They had one child together. The family settled in Wales but, following the breakdown of the marriage, the mother felt increasingly isolated there and wanted to return with the child to America and be with her family.

In an informal arrangement, the child spent four nights a week with the mother and three nights a week with the father. The child’s home was equally with both parents and Mr Justice Hedley stated:

In those circumstances … many of the factors to which the court drew attention in Payne v Payne whilst relevant carry less weight than otherwise they commonly do.

Mr Justice Hedley adjourned the case into open court for various reasons, one of which was as follows:

This type of case of transnational marriage is and will continue to become increasingly common, and it seems to me that there should be public awareness of and discussion about the intractable problems that it can raise and the sad consequences it can ensue.

In Re Y, the mother’s application to remove the child was refused, and a shared residence order was made.

Another look at Payne v Payne

As discussed in my previous external relocation post, Payne v Payne evolved from another case, Poel v Poel, which was decided in the 1970s when custody was awarded jointly to both parents only in exceptional circumstances.

In K v K Lord Justice Thorpe had this to say about the two older cases:

The survival of Poel into this century, in my judgment depends crucially upon the primacy of the applicant’s care…Payne does not anywhere consider what should be the court’s approach to an application where there is no primary carer…Despite a considerable degree of criticism, the decision in Payne has been consistently applied over the last decade in cases in which the applicant is a primary carer.

Lord Justice Thorpe agreed with Mr Justice Hedley’s observation in Re Y, in that it is not the label of “shared residence” that is important, but the practical arrangements that are in place for “sharing the burden of care between two equally committed carers”.

He went on:

Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised. The judge should rather exercise his discretion and grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989.

Payne v Payne has been heavily criticised – not least by readers of this blog! – but it is apparent that when the care of the child is shared equally by both parents, Payne is not the correct approach to take. The fact that Lord Justice Thorpe was involved in both cases – Payne v Payne as well as K v K – provides a useful insight. He is clear that when care is shared equally by both parents, Payne v Payne should not be applied.

As ever, it is important to remember that in all cases involving children, the child’s welfare is of paramount consideration. In K v K, Lord Justice Moore-Bick stated that the only principle of law from which no departure is permitted is that the welfare of the child is paramount; everything else is guidance. Also in K v K, Lady Justice Black stated:

The only authentic principle that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with the view to measuring its impact on the child.”

Mr Justice Hedley made a similar finding in Re Y:

When everything has been said, done and considered the ultimate test remains the welfare of the child, which in the last analysis overbears all other considerations, however powerful and reasonable they may be.

Some thoughts

It is becoming more common for people from different countries to marry and unfortunately couples do not always “live happily ever after” together. However when there are children involved it is important to put their welfare first.

When one parent wishes to relocate to a different country there will never be a perfect solution. Whatever the outcome, one parent will more than likely feel that the wrong decision has been made. I think that Mr Justice Hedley summed it up very well when he said that in a case such as Re Y, putting the child’s welfare first inevitably means that one parent will be dealt “a crushing disappointment”.

However this is not a complete move away from Payne v Payne. It is important to point out that it seems that it is only departed from when the care of the children is shared more or less equally between the parents. The recent case of H (Children) [2011] EWCA Civ 529 did not allow the father’s appeal against the decision to allow the mother to relocate to Canada with the children. However in that case, the mother was the primary carer of the children rather than the care being shared equally.

In cases where the care is shared more or less equally, it seems that the court is following the decision in Re Y. In the recent case of C v D [2011] EWHC 335 (Fam) the mother made an application to move to America with the children, which the father opposed. The mother was not granted permission, based on the fact that the parents shared the care of the children; the regime they had worked well and was in the children’s best interests. They cared for them on a 20/10 split throughout the month (dividing term time so that 20 days were spent with the mother and 10 with the father), but the father made an application that the time be split equally between them. This application was refused as the court felt that the regime in place was in the children’s best interests.

As understandably difficult as it is for a parent who has had an application to remove a child refused, I agree that a child should not be taken to another country when their care is shared equally by both parents. One parent’s unhappiness, as a result of remaining in a country they no longer want to be in, may have some form of negative effect on the child. But what would the impact on that child be, if he or she went from seeing a parent every week for a significant amount of time, to only seeing them a handful of times a year?

Yes, children who are relocated overseas can still talk to their parents on the telephone and use video calling so that they can see each other, but even this is not without its difficulties when the child moves to a country with a big time difference. In my view, it is entirely appropriate that a different test is applied when dealing with cases in which the parents share the care equally, compared to those in which the non-resident parent has contact once or twice a fortnight.

 

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.

 

Author: Stowe Family Law

Comments(7)

  1.   External Relocation: An update. By guest blogger Laura Guillon.|Untouched Smile says:

    […] External Relocation: An update. By guest blogger Laura Guillon. is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  2. Tulsa Divorce Attorneys says:

    K v. K sounds intense. I’m a child custody attorney in the US and speaking from experience, cases like K v. K are heavy.

  3. Bruno D'Itri says:

    Thank you for your very interesting article.
    I have campaigned vigorously against Payne v Payne (2001) in recent years; specifically against the disproportionate and overriding weight it afforded to the so-called ‘distress argument’ of the relocating parent.
    In Re D (Children) [2010] EWCA Civ 50, for example, despite the existence of a shared care arrangement (70/30 split of parenting time), the ‘distress argument’ was given paramountcy by the judiciary. Sir Nicholas Wall applied the Payne principles rather than the Re Y principles.
    In my view, the importance of Re K is that it rightly relegates the overriding weight which had, hitherto, been given to the ‘distress argument’.
    As announced in the Queen’s Speech recently, our elected Government plans to strengthen, in law, the right of a father to have a meaningful relationship with his children, post separation/divorce. It recognises that family law, as it currently stands, fails to serve children’s paramount interests in this extremely important respect.
    I hope that any amendment to the Children Act (1989) will be robust enough to effectively safeguard children’s rights to be parented by both parents.
    Of course, Shared Parenting does not, as many critics would have us believe, necessitate an exact split of parenting time. Indeed, this would be highly impractical in most cases. Rather, it is expected to range upwards from 30%. Another common misconception is that it will endanger children. However, very plainly, Shared Parenting will be ‘rebuttable’ and thus will only be granted to parents who are not a proven risk to their children (unfounded allegations from disgruntled and vindictive ex-partners should not be enough!).
    I anticipate that Shared Sarenting legislation will have a significant and positive impact upon Relocation law.
    Plainly, a father cannot hope to enact any semblance of a Shared Parenting Plan when his children are residing on the other side of the planet! I speak from personal experience!
    Hopefully, Payne will finally be consigned to the history books…
    Bruno D’Itri

  4. Spanish father loses appeal in Spanish residency case - Marilyn Stowe Blog says:

    […] the international custody case referred to as K v K, which came before the courts last year, Lady Justice Black said: “…I would not wish to be […]

  5. Bruno D'Itri says:

    In a speech to the University of Western Cape Conference on 18 March 2010, Professor Marilyn Freeman stated:

    “Lord Justice Wall, in a hearing for permission to appeal a leave to remove (relocation) order, added his qualified support for a review of Payne v Payne on 9th February 2010 when 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”. He went on to say: “This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a ‘compelling reason’ for an appeal to be heard” [Re D (Children) [2010] EWCA Civ 50]. There are therefore signs that the Court of Appeal may be willing to revisit this position.”

    http://www.millerdutoitcloeteinc.co.za/Paper%20-%20Freeman%20Marilyn.doc

    In contrast, in the Journal of Family Law and Practice, Vol. 2.2 Autumn 2011, Professor Freeman opts to record Wall’s position on Payne v Payne as follows:

    “The Court took the opportunity, in light of the recent criticism of Payne, to clarify the status of Payne. Wall dealt decisively in Re W with the confusion created by his comments in the earlier case of Re D… In Re W, Wall stated that too much weight may have been given to some of his words in Re D”.

    http://www.londonmet.ac.uk/fms/MRSite/acad/lgri/CFLP/Journals%20Free/Issue%205/Issue%205%20Marilyn%20Freeman%20Nicola%20Taylor.pdf

    However, was there really such ‘confusion’ over Re D, as the Professor claims? She certainly didn’t seem to think so in March 2010.

    Furthermore, only a few months after Re D, Wall declared his ‘delight’ with the attention his critique of Payne had received (in an interview with ‘Family Affairs’ on 12 August 2010 – see link below). Wall also reiterated his critique of Payne in a speech to the charity ‘Families Need Fathers’ on 20 September 2010 (see link below).

    Furthermore, the Professor is quite aware that Wall’s critique of Payne v Payne was not merely ‘some spoken words’, as Wall later attempted to claim in Re W. The Professor knows very well that Re D was a reserved written judgment over which Wall took three weeks to carefully deliberate. The Professor of Law is also aware that Re D was a failed application for ‘leave to appeal’ and, as such, would not ordinarily be published. She is aware that Wall specifically released Re D into the public domain in order that the legal fraternity would take full note of his carefully considered critique of Payne v Payne. There could have been no other reason why this failed application was made public by Wall.

    In her assessment, the Professor has also decided to ignore completely Wall’s critique of Payne v Payne in a second judgment. In April 2010, just two months after Re D (Children) [2010] EWCA Civ 50, Wall passed judgment in Re D (A Child) [2010] EWCA Civ 593 as follows:

    “…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.

    Does the Professor ignore this second judgment in order to support Wall’s claim that he had not actually intended to criticize Payne in Re D?

    For a more factual account of the circumstances surrounding Re D and Re W, see: http://thecustodyminefield.blogspot.co.uk/2011/06/leave-to-remove-news.html This letter was sent to Professor Marilyn Freeman in June 2011, but she has decided to ignore its contents completely.

    Surely we deserve more objectivity and thoroughness from an academic?

    Finally, in her Journal of Family Law and Practice article, whilst the Professor appears content at the prospect of being employed conducting further research, it is not entirely clear why she chooses to ignore the large body of existing and compelling research. This research was referred to by Mostyn J in Re AR, was listed in The Custody Minefield’s Report (a copy of which she received from the Director of The Custody Minefield at a ‘Families Need Fathers’ seminar at Westminster in November 2010) and was presented in full to Wall in Re D (leading directly to his critique of Payne).

    Regards
    Bruno D’Itri

  6. Bruno D'Itri says:

    An excellent article which exposes Sir Nicholas Wall’s seemingly confused and contradictory stance on Payne v Payne.
    A frank and comprehensive explanation from Wall would have been of great assistance to the legal fraternity. It’s never too late, Nicholas!

    Regards
    Bruno D’Itri

  7. Bruno D'Itri says:

    I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.

    http://www.guardian.co.uk/commentisfree/2013/feb/05/children-family-bill-panel-responds?fb=native

    This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).

    I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.

    Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).

    There have been well-publicised cases in which the judiciary has recognised this shortcoming in the law, but has been unable or unwilling to act.

    In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, for example, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent.

    Regardless of his concerns, however, he proceeded to apply the very legal principles in Payne v Payne which he had criticised! Wall was either unable or unwilling to challenge a legal precedent which failed to serve the best interests of the children.

    With the forthcoming amendment to the Children Act, the judiciary will now be FORCED to give due and proper weight to maintaining meaningful relationships between children and both their parents.

    It is very hard to see how the principles of Payne v Payne can now survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent!

    I expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.

    Regards
    Bruno D’Itri

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