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)  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)  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”.
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.
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)  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  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.