Putting Payne to rest—a holistic approach

Family analysis: What affect does Re F (A child) have on the way that the courts evaluate a child’s welfare? Lisa Burton-Durham, chartered legal executive at Family Law Partners, comments on the Court of Appeal’s approach to permanent international relocation.

Original news

Re F (A child) (International relocation: welfare analysis) [2015] EWCA Civ 882, [2015] All ER (D) 90 (Aug)

A relocation order had been granted allowing a mother to move with her child to Germany. The father appealed. The Court of Appeal, Civil Division, clarified the current law with respect to any application for the permanent international relocation of a child and held that the judge had erred in having not carried out an overall welfare analysis.

What were the key issues in this case?

The primary issue was whether the court had placed too much emphasis on the test contained within Payne v Payne [2001] EWCA Civ 166, [2001] 1 FCR 425 and not enough on the overall assessment of the welfare paramountcy principle.

The case concerned a 12-year-old girl. The child’s father had made an application for a contact order (now a child arrangements order) in accordance with section 8 of the Children Act 1989 (ChA 1989). The mother made a cross-application for leave to remove the child from the jurisdiction in accordance with ChA 1989, s 13(1).

The mother is a German national who came to England in the mid-1980s. Approximately ten years later she began a relationship with the father and they married in 2002. The child was born shortly after. The parties separated in 2012.

The father reported that the mother was very possessive of and over protective of the child and did not want him to share in her care. The father said that he tried, without success, to reach agreement with the mother regarding the arrangements for the child. He issued his application in March 2013.

In May 2014, HHJ Probyn ordered significant visiting contact. In the meantime, the mother made an application seeking leave to relocate the child to Germany. HHJ Waddicor gave the mother permission to permanently remove the child from the jurisdiction of England and Wales to Germany. The order also provided for a minimum period of six weeks in every year that the child was to spend with her father. The father appealed the order.

How did the court approach the process of assessing the application for leave to remove?

The approach to be taken in cases where one parent seeks permission to remove a child permanently from the UK was considered meticulously in Payne plus two other leading authorities: K v K (Children) [2011] EWCA Civ 793, [2011] 3 FCR 111 and Re F (A Child) (International relocation: welfare analysis) [2012] EWCA Civ 1364, [2012] 3 FCR 443.

Although K v K has now been identified as the starting point, the judges in those cases were clearly of the view that Payne should not be discarded, but that it should be used as general guidance on relocation cases. The weight given to its various factors would vary depending on the facts of the particular case being decided.

However, the child’s welfare is paramount in relocation cases.

What were the challenges in this case? What were the weaknesses in the judge’s approach to the analysis?

In this particular case, HHJ Waddicor was found to have erred in law by placing too much emphasis on the Payne criteria. In particular, the judge failed to balance the harm of the removal being refused against the harm that would result from the separation of the child and their father should the move take place. The Court of Appeal talked in terms of apparent absence of using a ‘holistic evaluation’.

Does this decision highlight any trends or ongoing issues in this area of law?

Despite the helpful case law, judges and lawyers continue to grapple with this area of law. Payne has continued, for many, to provide principles and presumptions to be adhered to. It is still good law. What is clear from this case is that the questions raised in para [40] and para [85] of the Payne judgement were always intended to be part of a welfare analysis. Unfortunately, that is not how they have been perceived, and with that it seems the intentions of the court have been lost along the way.

Having dealt with a number of these cases, I have always been cynical about this approach predominantly because the starting point has always been from such a one-sided position. In this modern age, Payne is now somewhat outdated and, in my view, discriminates in favour of the parent with day-to-day care.

What should lawyers take from this case? How might it affect future disputes?

The welfare of the child is the court’s paramount consideration. In deciding where a child should be located it is necessary for the court to consider the proposals of both parents in the light of the welfare checklist and having regard to the interests of the parties and, most important of all, the child. The court will need to carefully evaluate all the competing proposals against each other—a holistic evaluation.

What will continue to be crucial for lawyers is to ensure the client wishing to relocate has a clear and viable plan, which has the welfare of the child at its heart and that plan considers and evaluates the other parent’s role in the child’s life.

Perhaps this case will now put to rest the old approach to Payne and see how the questions it raises can be viewed as a whole through the prism of what is best for the child at the centre of the case.

Lisa Burton-Durham is a chartered legal executive and resolution trained collaborative lawyer. She joined family specialists, Family Law Partners, from a regional firm in 2013 where she had been for over 20 years. Lisa deals with all areas of family law, but has a particular interest in relocation cases and financial remedy proceedings. Lisa has successfully dealt with a number of international relocation cases for both applicant and respondent.

Interviewed by Janine Isenegger.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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