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Important family law cases: Payne v Payne

As I have said here before, international child relocation cases are amongst the most difficult for a family lawyer to deal with, having the possibility of separating children from one of their parents on what is (or certainly may seem) a permanent basis.

This was the scenario in Payne v Payne (also known as P v P), in which the mother sought to relocate with her four year old daughter to New Zealand.

The facts in Payne are interesting, and I shall set them out in a little detail.

The father was British and the mother was a citizen of New Zealand. The mother came to London when she was in her early twenties. She met the father and they were married in 1996. Their daughter, S, was born in 1997 and the mother gave up work to look after her.

At some time after S was born the parents decided to move abroad. Exactly what was decided was in dispute. The mother said that they had all decided to live in New Zealand, after the husband had first carried out a contract in Kuala Lumpur. The father’s case was that the stay in New Zealand was to be exploratory, with no firm commitment, especially as his work prospects in New Zealand were uncertain.

Whatever, the mother and S left for Auckland and the father for Kuala Lumpur. The mother and S were in New Zealand for about fourteen months, from March 1998 until May 1999, and the father moved there in August 1998, after he completed his contract in Kuala Lumpur. However, by that time the parents’ relationship had broken down and they separated within a week of the father arriving in New Zealand.

The mother then applied to the court in New Zealand for custody and an order preventing the father from removing S from New Zealand, and the father made a cross-application for custody and permission to remove S from the country. The judge did not find the mother a convincing witness, and thought it likely that even before the family left England she had decided to separate from the husband once they got to New Zealand. He ordered that S should be returned to the United Kingdom and she travelled back in May 1999, accompanied by both parents.

On arrival in England the father went to Newmarket, where other members of his family lived, and the mother told him that she was taking S to stay with her uncle and aunt in Finchley. In fact, the mother took S to another address, which was unknown to the father. However, with the help of the police, the father traced the mother and S within a few days.

Proceedings then took place in the Cambridge County Court and in June 1999 a residence order was made in favour of the mother, by consent, with a prohibition against her removing S from the jurisdiction. A contact order was also made in favour of the father and it was accepted by all that the contact thereafter went “exceptionally well”. S also had a strong attachment to the paternal grandmother.

The mother, however, was not happy in England and indicated through her solicitor that she wished to relocate with S to New Zealand. The father then applied to vary the residence order in his favour, claiming “that the mother was not discharging her responsibility satisfactorily and that he could do better”. The mother responded by issuing a cross application for permission to relocate with S to New Zealand.

The judge refused the father’s residence application and granted the mother permission to remove S permanently to New Zealand. He found that if she remained in England the mother’s “unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child”. As to the father, he would be able to afford to visit S or have her visit him two or three times a year, “which mitigated the loss to the child and to him”.

The father appealed.

The Court of Appeal dismissed the father’s appeal. What became the most important part of the case was contained in the judgment of the then President of the Family Division Dame Elizabeth Butler-Sloss (who is also of course in the news at present), when she summarised the guidelines to be followed in relocation cases. She set them out as follows:

(a) The welfare of the child is always paramount.

(b) There is no presumption 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.

Importantly (and as is sometimes overlooked) Dame Butler-Sloss went on:

“All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge`s decision on residence was not an issue before this Court.”

What all of this boils down to is that where a parent with whom the child is residing puts forward genuine, reasonable proposals to relocate then they will usually be allowed to do so.

Payne has been heavily criticised in some quarters, in particular for placing too great an emphasis on the wishes and feelings of the relocating parent. However, it is still the leading case on the subject of child relocation and should therefore be followed.

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, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Nordic says:

    Well, I join the many (fathers) who consider this particular judgement an utter disgrace. Allowing a mother’s claim of unhappiness to override the child’s fundamental right to access to both its parents is a naive, wrong and very harmful precedent. Whether or not the intention is to frustrate contact is surely not the issue. The issue is that International relocation can be expected to result in permanent loss of contact with the parent left behind (and did so also in this particular case as far as I am aware). It takes a very skewed and outdated view of the world to believe that such an outcome can possibly be in the child’s long term best interest.

  2. Luke says:

    Yes Nordic, I don’t see how this can be regarded by anybody as anything but a shameful decision by the Court – it beggars belief…

  3. exInjuria says:

    Although the courts do not take the outcomes of cases into account when making their decisions, it is worth observing that in this case the girl never saw her father again. According to the father’s counsel, commenting 10 years later, all contact between father and daughter ceased following the mother’s move to New Zealand. It seems that the New Zealand judge had a better insight into the case than Butler-Sloss and Thorpe did.

  4. BD says:

    My son is about to go through this hell in court we don’t have enough cash to afford a barrister where could we possibly gain other insights thank yoy

  5. Koffi Mpundu says:

    Payne v Payne is a very naive judgement and a sure way of stopping contact on the part of father to ‘S’! Unbelievable legal thinking

  6. Bruno Ditri says:

    As the litigant-in-person father in the case, Re D (Children) [2010] EWCA Civ 50, I am very pleased that the courts are now pulling away from rigid adherence to Payne v Payne (2001). See Re F (International Relocation Cases) [2015] EWCA Civ 882, in which the Court of Appeal overturned the circuit judge’s decision because she focused too much on the Payne criteria.
    In 2010, in the words of the late LJ Wall, the President of the Family Division, I launched a “root and branch attack” on Payne, and he agreed with me that it placed “too great an emphasis on the wishes and feelings of the relocating parent, and relegated the harm done to children by a permanent breach of the relationship which children have with the left behind parent”.
    I agree with Dr Rob George that Payne is no longer a useful authority, and now acts only to muddy the waters in relocation cases.

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