Re F changes everything and nothing on child relocation

Family Law|August 10th 2015

The Court of Appeal’s decision in F (A Child) (International Relocation Cases) was handed down just last Thursday, yet it has already been hailed by a number of family lawyers as an important decision, marking the passing of a body of jurisprudence on the subject of international child relocation. This evaluation, whilst in a sense not entirely incorrect, was reached despite the fact that in his leading judgment Lord Justice Ryder sought to make clear that the case does not, in fact, indicate a change in the approach to be taken in these difficult cases.

The particular body of jurisprudence that (it is claimed) has been consigned to the status of no-longer-precedent is, of course, the Court of Appeal’s own guidance in the leading case of Payne v Payne. Since it was decided back in 2001, Payne has been criticised in many quarters for placing too great an emphasis on the wishes and feelings of the relocating parent, and for its guidance being couched in terms that assumed that the mother was the caring parent, and therefore the one that sought to relocate. Lord Justice Ryder sets out what Payne said:

“The guidance given in Payne is usually summarised by reference to the three factors isolated by Thorpe LJ … as being the most likely to be relevant in a relocation case:

“(a) 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?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b)       Is [the father’s opposition] 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?…””

However, Lord Justice Ryder, explains:

“The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation.”

In other words, whilst the guidance in Payne was not incorrect, it was misunderstood: it should not be taken rigidly, but rather in the context of an analysis of what is best for the welfare of the child. That misunderstanding was why the first instance judge had fallen into error: she had placed too much emphasis on the guidance in Payne.

So, Payne had never in fact changed the law by setting out legal principles or presumptions; all it had done was to set out some guidance to assist when carrying out the welfare exercise. Relocation cases always have and always will be decided simply by reference to the principle that the child’s welfare is paramount – there are no other principles or presumptions. In deciding what is best for the child’s welfare, the ‘welfare checklist’ in section 1(3) of the Children Act must be considered (despite the fact that technically a relocation application under section 13 is not one of the circumstances in which the court has to have regard to the welfare checklist).

What the court must do, said Lord Justice Ryder, was to adopt a holistic approach to the welfare analysis (I have always disliked the word ‘holistic’, perhaps because it is the sort of word used in the type of jargon that was so heavily criticised by Judge Lea in the recent Derbyshire County Council case). To put that into plain English, the court must evaluate all the options by reference to the child’s welfare, taking into account all the pros and cons of each option. In a consenting judgment Lord Justice McFarlane (who seems to be regretting popularising the word ‘holistic’) clarified that: “a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist”.

The other matter that was relevant in relocation cases, said Lord Justice Ryder, was Article 8 of the European Convention for the Protection of Human Rights: the right to respect for family life. Whilst Article 8 applies to all private law cases, in most of them the right is adequately protected by domestic law. However, international relocation cases could obviously involve the severance of the relationship between the child and one of her parents, and therefore they are more likely to require a ’proportionality evaluation’, i.e. an evaluation of whether a particular option represents a proportionate interference in the Article 8 rights of those involved.

So, Payne has not been overturned or set aside. Instead, it has been re-cast as just one in a long line of decisions based upon the welfare of the child – it contains guidance which may be useful, but it was never intended that a court should base its entire decision upon that guidance.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. stitchedup says:

    Omelette has a tendency to stick to ones face doesn’t it John?

  2. Nordic says:

    So, according to you, the guidance in Payne v Payne was simply misunderstood? I wonder how many parents and children have had their lives blighted and overturned due to such misunderstandings. International relocation is an area in which I have had some direct exposure and, believe me, the “misunderstandings” promoted by Payne v Payne have been widely applied by the courts. So, maybe the real point you are trying to make is that a legal system which relies solely on vague and imprecise case law, is prone to such “misunderstandings”? If so, I can only agree. The reliance on Payne v Payne illustrates how our courts desperately need some proper guidance as to what the paramount principles really means. Such as a proper presumption.
    The truth is that Payne v Payne over the past decade has been used separate children from their parents based on, and I quote the judgement (para 18), “redolent gender based assumptions”. If even the Appeals Court can see it, maybe for once you should try to get on the side of children and families rather than try find excuses for the system’s obvious failings. The discriminatory practice in this area is a national disgrace which has caused life harm to countless children. As Sir Bob once said on this topic, “May God forgive them, for I will not”.

  3. Luke says:

    Yes, John doesn’t seem to feel too bad about it all things considered – which is no surprise because after all despite so many parents and children having their relationships destroyed using this ridiculous precedent (which John was all in favour of and now apparently isn’t !) the main thing is the lawyers all got well paid doing it.

  4. JamesB says:

    I have seen the same lawyer argue one thing in one hearing and the opposite position in the next hearing. I suppose if they get emotionally attached or cared more it would make it difficult for them to carry on doing the job seeing families split up to be fair to them.

    That said, I do find lawyers pushing bad law for their own ends and finances, arguing for more family separation including no fault divorce and legal aid for divorces and more support for divorcing people distasteful.

    The idea that law is paramount and fairness most important in these places I fear is not right.

    To be reasonable to them fairness is difficult to find, but I do find it bad that family lawyers and the family law courts seem to look for it while drunk, wearing a blindfold, looking for money, smoking a cigar and generally seem to not really care, which is not good, we deserve better family law and family law courts.

  5. JamesB says:

    I also support what Sir Bob says and his views on the matter. Should make him head of the Family Division rather than Justice Munby would be a big improvement. Establishment in this country is discredited, like the alledged issues involving Heath Britten Aitkin, South Yorks Police, Archer, Guildford four, and others, I could go on.

    Perhaps family law is too difficult. If parents can’t agree and if no abuse then courts should keep out of it and neither parent should be allowed to remove children from country except if pre nup says otherwise. Same for divorce, one side should not be allowed to push through dodgy petitions as they do. The more people do by (non coerced) agreement the better. I don’t want Sharia law I would rather have family law women and men think is ok in this country. It seems to me the lawyers and the main day to day carer parent of the children from marriage are the only ones who support the laws we have. That means the majority of people in this country do not support the family law in this country. Same with politics, need to get peoples support more. Like with the London mayoral election where need 50% of the publics support as a minimum. I really get upset about what is being done in my name. Like Judges who think it is their courtroom, it is not, it is the supposed to be the publics through our elected representatives. These places need to remember who they should be working for, not an easy life and the money, but they should be working for the public. I also struggle to forgive them for what they have done to my family.

    Someone (a women who was about to go to court and probably would have won against a father wanting more contact with his son) who knew I had been a lot to family court asked me if these places are fair. I thought about it long and hard and had to say “No, they are not”. I was pleased when they didn’t go and she gave the father more contact. That was after I calmed down and got over it over five years after my last (of over 50) appearances there.

  6. JamesB says:

    I remember a Judge blatantly calling me the golden goose that leys the golden eggs in court. That is pretty crazy, these places are pretty crazy. I am not a goose or a slave or rather I like to think I am not and I resent these places calling me names like these which is how they treat people and that is bad.

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