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.