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Home > Articles > 2015 archive

Children: Private Law Update (December 2015)

Alex Verdan QC of 4 Paper Buildings reviews recent important judgments in private law children cases.

Alex Verdan QC, 4 Paper Buildings













Alex Verdan QC,4 Paper Buildings

In this update I will consider the following areas: 


Foreign surrogacy

In Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90, Russell J provided essential guidance for parental orders under the Human Fertilisation and Embryology Act 2008 section 54.

The court was concerned with a commercial surrogacy agreement made between a gestational surrogate and two British citizens in India. Twins were subsequently born by in-vitro fertilisation. The British citizens issued applications for parental orders, but the children did not leave India with the adults by reason of there being a difficulty in securing travel documentation for the children. The proceedings were then not allocated to a specialist High Court judge, which caused further delay.

Russell J provided the following guidance:

"73. Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child's place of birth was outside of England and Wales should be allocated to be heard by a Judge of High Court Level.

iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.

iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a High Court Judge identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).

v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (subject to their own guidance and the guidance below).

74. The President has seen paragraph [73] and has approved it."
Russell J also made clear that the "parental order reporter's investigation in any case must include the child being seen with the applicants unless there are compelling and exceptional reasons based on the child's welfare why such observations cannot take place or where there is sufficient independent evidence pertaining to the child's welfare from an alternative source."


Parental responsibility

In H v A (No. 1) [2015] EWFC 58, MacDonald J was concerned with a father who was serving a discretionary life sentence in prison for offences including battery against the mother, breach of a non-molestation order and driving a burning car into the family home while the mother and children were there. His fixation on harming the children's mother and his consequent total disregard for the children's welfare meant that they lived in a strictly confidential location. The mother said that the provision of school reports, even in an anonymised form, would pose too great a risk of their whereabouts being accidentally disclosed to him.

It was agreed that the father would not have any contact, direct or indirect, and would be prohibited from making any applications in respect of them without permission of the court.

The mother also sought to restrict the father's exercise of his parental responsibility by applying for an order to prohibit him from receiving the children's school reports, where all the father sought was anonymised 'data' comprising the grades of the children stripped of any information that might identify the current whereabouts of the mother and the children.

MacDonald J considered the court's power to limit the exercise of a parent's parental responsibility, and found that only in exceptional circumstances should the court takes this draconian step, and clarified the legal position as follows:

"[47] Section 3(1) of the Children Act 1989 defines parental responsibility as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.'

[48] The rights, duties, powers, responsibilities and authority that comprise 'parental responsibility' are contingent in nature because they are inseparably connected with a parent's obligation to meet the welfare needs of his or her children and arise out of that obligation. A parent's rights, duties, powers, responsibilities and authority insofar as they concern their children are only derived from their obligations as a parent and exist only to secure the welfare of their children (see Family Law Review of Child Law, Guardianship and Custody Law Com. 172 (1988) para 2.4 and Art 18 of the United Nations Convention on the Rights of the Child). Within this context the concept of parental responsibility "emphasises that the duty to care for the child and to raise him to moral, physical and emotional health is the fundamental task of parenthood and the only jurisdiction for the authority it confers" (see Introduction to the Children Act HMSO 1989 para 1.4).

[49] Thus, in Re D (A Child) [2014] EWCA Civ 315 Lord Justice Ryder reiterated that the concept of parental responsibility describes an adult's responsibility to secure the welfare of their child, which is to be exercised for the benefit of the child not the adult. The status conferred by parental responsibility relates to welfare and not the mere existence of paternity or parenthood.

[50] Within the foregoing context, the courts have repeatedly emphasised, and I expressly acknowledge, that in most cases it is in a child's best interests for both parents to have and exercise parental responsibility for the child. Further, and within the context of this case, the courts have emphasised the vital importance of encouraging the exercise of parental responsibility by fathers, children having a right to that benefit (see Re D (A Child) [2014] EWCA Civ 315 at [33] and Art 5 of the United Nations Convention on the Rights of the Child).

[51] Where however the manner in which a parent chooses to exercise an aspect of their parental responsibility is detrimental to the welfare of the child, the court may prescribe, to whatever extent is in the child's best interests and proportionate, the exercise by that parent of their parental responsibility.

[52] Within the context of this case, the court may make a prohibited steps order pursuant to s 8 of the Children Act 1989 to prevent a parent from exercising his right to see the children's school records under the Education (School Records) Regulations 1989 (see R v Leicestershire Education Authority ex parte C [1991] Fam Law 302 ). Pursuant to s 2(8) of the Children Act 1989 , the fact that a father has parental responsibility for a child does not entitle him to act in a way which would be incompatible with any order made under the Children Act 1989."

MacDonald J, in granting the mother's application, considered the welfare of the children and the risk of further harm, and considered the impact on the mother and her ability to meet the children's needs, which might have been impaired by any risk that the father would locate her, or by the worry and anxiety associated with a persistent and pernicious fear that her location and that of the children would be revealed to the father.

In Re D (A Child) [2014] EWCA Civ 315) (sub nom Re DW (Termination of parental responsibility) [2015] 1 FLR 166) the Court of Appeal was concerned with clarifying the circumstances in which a parent's parental responsibility could be removed. 

D was born in 2004 and the parties were not married, but the father was named on D's birth certificate as his father. In 2009, the father pleaded guilty to sexual offences committed against the mother's two daughters from a previous relationship. On his release, the mother successfully applied for an order that the father's parental responsibility should cease. Baker J found that D had suffered serious emotional harm as a consequence of the father's actions and that he was at risk of further emotional harm.

The father submitted that the judge failed to (1) distinguish Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048 to have regard to the Human Rights Act 1998 and the changing social norms in the intervening 18 years since Re P; (2) consider whether the mother had established the allegation that he was a sexual recidivist; and (3) make a proportionate order, or take into account policy considerations that such applications should not become "a weapon in the hands of a dissatisfied mother", and the court should have considered making a s 91(14) order instead.

The Court of Appeal held that, whatever the change in social norms since Re P, the concept of the welfare paramountcy principle had remained intact and had been applied.

"[32] In the 18 years since Re P was decided there have been no reported decisions of that kind and the changed social conditions over those years has not led to any reported increase or change in applications of this kind. There is nothing before this court which would suggest that there is a need to enhance the court's vigilance in that regard. Furthermore, even if this vigilance is sensible, which it is, there is no remedy that is suggested other than that the court should be careful. Baker J was very careful and I can see nothing that can be derived from this submission other than support for the general proposition that the court should take the most proportionate route to a welfare resolution that is consistent with the best interests of the child concerned. The application in this case was manifestly not being used as a weapon in the hands of a dissatisfied mother. The proceedings simply could not be regarded in that light."

Re P could not be distinguished on the basis that the father had not inflicted harm directly on D. The father had inflicted devastating emotional harm on the whole family, including D, and hecould not be said to be capable of exercising his parental rights with responsibility.

It was well established that the provisions of the Children Act 1989 were compliant with the European Convention on Human Rights 1950. To the extent that differences existed in the statutory treatment of unmarried and married fathers, that difference should be construed as justified; Smallwood v United Kingdom (29779/96) (1999) 27 E.H.R.R. CD155 was applied.

The Court of Appeal held that the judge had applied the correct test and considered the key issues. He utilised the welfare checklist and reminded himself of the interference with Article 8 rights which needed to be justified. His conclusion that, despite the need of every child to have a relationship with each parent wherever possible, D's welfare would be imperilled if the father had any involvement in his life was unassailable on the facts and as a value judgment within a careful welfare analysis.

The Court of Appeal also confirmed the ambit of the court's powers to make findings not sought by either party:

"[28] Provided that procedural protections are identified and used by the court, the process of fact finding in family proceedings is quasi-inquisitorial. The welfare of a child may sometimes require a judge to make decisions about facts and/or value judgments that are not asked for by either party. A judge cannot shrink from doing so. That is his function. He must identify such questions and where necessary decide them. Although identified in relation to a different supervisory jurisdiction, the quasi-inquisitorial process to which I have referred was considered and approved in its use by the family courts in public law children proceedings and must as a matter of good practice be available to the same inquiry in private law children proceedings."


Natural parent presumption?

Re E-R (A Child) (Child Arrangements Order: Best Interests) [2015] EWCA Civ 405 concerned an appeal against an order that the child, aged 5 years, live with her father on the death of the mother, who suffered from terminal cancer. The child was living and being cared for by the mother's friend (H), who had become the primary carer, and the mother had named her as the child's testamentary guardian.

H applied for a special guardianship order and the court made an interim order conferring parental responsibility on H. However, at the final hearing the court made an order that the child live with her father, whom he had not seen for some time following separation.

The trial judge made the order on the basis that:

"There is a broad natural parent presumption in existence under our law and indeed common sense would cause one to recognise that a young child will all other things being equal be best off in the primary care of a parent. Part of the conundrum in this case is working out if all other things truly are equal."

In finding that the trial judge had erred in his application of the law, the Court of Appeal recited the correct position as follows:

"[28] In Re G 2006 UKHL 43; [2006] 2 FLR 629 the House of Lords held in a dispute between a lesbian couple, one of who was the biological parent of the child, that the welfare of the child was the paramount consideration and there was no question of a parental right which might over ride that consideration. Baroness Hale said:

30. My Lords, the Children Act 1989 brought together the Government's proposals in relation to child care law and the Law Commission's recommendations in relation to the private law. In its Working Paper No 96, Review of Child Law: Custody (1986), at para 6.22, having discussed whether there should be some form of presumption in favour of natural parents, the Commission said this:

"We conclude, therefore, that the welfare of each child in the family should continue to be the paramount consideration whenever their custody or upbringing is in question between private individuals. The welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child, in particular to his sense of identity and self-esteem, as well as the added commitment which knowledge of their parenthood may bring. We have already said that the indications are that the priority given to the welfare of the child needs to be strengthened rather than undermined. We could not contemplate making any recommendation which might have the effect of weakening the protection given to children under the present law."

Nor should we. The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it "rules upon or determines the course to be followed". There is no question of a parental right. As the Law Commission explained, "the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child" or, as Lord MacDermott put it, the claims and wishes of parents "can be capable of ministering to the total welfare of the child in a special way".

31. None of this means that the fact of parentage is irrelevant. The position in English law is akin to that in Australian law, as explained by Lindenburgh J in Hodak, Newman and Hodak (1993) FLC 92–421, and subsequently approved by the Full Court of the Family Court of Australia in Rice v Miller (1993) FLC 92–415 and Re Evelyn [1998] FamCA 55 :

"I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process… Each case should be determined upon an examination of its own merits and of the individuals there involved" (emphasis supplied)."

[29] In her conclusion Baroness Hale said:

"44. The fact that CG is the natural mother of these children in every sense of that term, whilst raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future."

It remains clear that the involvement and role of the natural parent will be taken into account and given appropriate weight when the court considers what is in the child's best interests.


Prohibited steps orders

Re A and B (prohibited steps order at dispute resolution appointment) [2015] EWFC B16
concerned an appeal by the father, a candidate for UKIP, against the making of a prohibited steps order preventing the father from involving the children in political activities.

The case highlights the potential procedural errors in making such orders. The father had not been provided with notice of the hearing and when his position was ascertained, it was clear the matter was disputed, but the court did not hear evidence. The wording of the order was ambiguous in respect of the ambit and duration. The appeal court found that the order interfered with the father's Article 8 rights. HHJ Wildblood QC, who allowed the appeal, emphasised the need for the terms of such orders to be clear and justified in order to be enforceable. 


Internal relocation

There has long been a debate concerning the issue of conditions on 'live with' orders in respect of internal relocations, and whether it is right to refuse a parent with primary care from relocating within England with the child. Thorpe LJ in Re S (A child)(Residence Order: condition) [2001] EWCA Civ 847 described the cases in which refusal would be legitimate as "highly exceptional."

However, what is the rationalisation for a different test to be applied on an application to relocate from Dover to Calais, as opposed to, say, an application to relocate from Dover to Newcastle?

The Court of Appeal has recently been asked to clarify the legal considerations on internal relocation applications, and in particular the status of certain previous authorities which appear to state that restrictions on internal relocations are 'exceptional,' or whether the Courts, as in international relocation cases, are simple to apply the paramountcy principle. Judgment has been reserved and is expected shortly.


International relocation

In August 2015 the Court of Appeal sought to provide definitive guidance as to the correct approach to relocation cases in Re F (International Relocation Cases) [2015] EWCA Civ 882.

This was an appeal by a father against a decision granting a German mother permission to take their 12 year old daughter to Germany. Following the parties' divorce the father applied for a child arrangements order, and shortly before the hearing the mother applied for permission to relocate with the child to Germany. The father was seeing his daughter twice per week for two and a half hours, and staying contact once every three weeks from Saturday into Sunday with a visiting Sunday contact in the second of each three week cycle.

The issue for the Court of Appeal was identified by Ryder LJ as follows:

"Whether an holistic evaluative analysis is the appropriate approach to be taken in section 13 relocation cases……. The crux of the question on the appeal is whether [the Judge] allowed herself to be deflected from a welfare analysis that was required in order to do justice to that exercise and instead, and despite what she records in her judgment, allowed herself to be constrained by the narrower guidance that was given by this court in Payne v Payne [2001] EWCA Civ 166, [2015] 1 FLR 1052."

Ryder LJ sets out the well known jurisprudence in relocation cases at paragraphs [15]-[26] referring to K v K [2011] EWCA Civ 793 and Re F (A Child) [2012] EWCA Civ 1364:

"[19] The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

"[37] ... There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child's welfare is paramount and the evaluation of where the child's interests truly lie is to be determined having regard to the 'welfare checklist' in section 1(3) ....

[61] The focus from beginning to end must be on the child's best interests. The child's welfare is paramount. Every case must be determined having regards to the 'welfare checklist', though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court."

[20] That endorsed and reinforced the earlier and binding decision of this court in K v K . In the interests of clarity I will now set out those passages in K v K and in Re F which, in my view, are required reading by any judge faced with determining any international child relocation case. These passages state the law as it is to be applied. Payne is to be read in the context of these authorities and not in substitution for, or priority, over them. In K v K there was a divergence between Moore-Bick and Black LJJ, on the one hand, and Thorpe LJ, on the other, both as to the depth offered in their respective judgments in analysis of the approach to be taken and, in particular, on the question of whether Payne was confined solely to cases where it was possible to identify a 'primary carer'. Although Thorpe LJ's judgment appears first in the law report, I propose to set out the key parts in the judgments of the majority before turning to Thorpe LJ's judgment.

[21] At paragraph [86] of K v K Moore-Bick LJ highlighted the important distinction between legal principle and guidance:

"I accept, of course, that the decision in Payne v Payne is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi. Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles. I am conscious that any views I express on this subject will be seen as coming from one who has little familiarity with family law and practice. Nonetheless, having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance. In my view Wilson L.J. was, with respect, quite right to warn against endorsing a parody of the decision. As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance. Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted. Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them. It also plays a valuable role in promoting consistency in decision-making. However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child. As Hedley J said in Re Y , the welfare of the child overbears all other considerations, however powerful and reasonable they may be. I do not think that the court in Payne v Payne intended to suggest otherwise."

[22] For her part, Black LJ's judgment begins at paragraph [96] by explaining the point upon which she differs from the view taken by Thorpe LJ:

"Where my reasoning and that of Thorpe LJ diverge is in relation to point ii), in particular in relation to the treatment of Payne v Payne . Thorpe LJ considers that Payne should not be applied in circumstances such as the present and that the judge should instead have applied the dicta of Hedley J in Re Y . For my part, as will become apparent, I would not put Payne so completely to one side. Whilst this makes no difference to the outcome of this case, it may not be without significance more generally."

[23] After a comprehensive review of the existing authorities, Black LJ sets out her conclusions on the law beginning at paragraph [140]:

"[140]. Looking back over what is now nearly 40 years of jurisprudence in this area of family law, I have come to a number of conclusions. I am indebted to my Lord, Moore-Bick LJ for his judgment which, like that of Thorpe LJ, I have read in draft, and in particular for its analysis in paragraph 86 of the approach to be taken to Payne in the light of the conventional treatment of principle and guidance.

[141]. The first point that is quite clear is that, as I have said already, the principle — 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 a view to measuring its impact on the child.

[142]. Whilst this is the only truly inescapable principle in the jurisprudence, that does not mean that everything else — the valuable guidance — can be ignored. It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle or so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable.

[143]. Furthermore, the effect of the guidance must not be overstated. Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed. Thorpe LJ said so in terms in Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of paragraph 26 ("Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children") for re-elevation to a status akin to that of a determinative presumption. It is doubly inappropriate when one bears in mind that the judgments in Payne must be read as a whole, with proper weight given to what the then President said. She said that she wished to reformulate the principles since they may have been expressed from time to time in too rigid terms with the word 'presumption' over-emphasising one element of the approach (paragraph 82) whereas the criteria in s 1 Children Act govern the application (paragraph 83) and there is no presumption in favour of the applicant (paragraph 84). Dame Elizabeth referred, of course, to the effect on the parent with residence (paragraphs 83 and 84) but she also stressed that the relationship with the other parent is highly relevant and that there are many other factors which may arise in an individual case (paragraph 84). I detect in her discussion of the factors and in her summary at paragraph 85 no weighting in favour of any particular factor. She said that the reasonable proposals of the parent with a residence order wishing to live abroad carry "great weight" whereas the effect on the child of denying contact with the other parent is "very important" but I do not infer from that phraseology any loading in favour of the reasonable proposals as opposed to the effect of the loss of contact.

[144]. Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. I do not see Hedley J's decision in Re Y as representative of a different line of authority from Payne, applicable where the child's care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.

[145]. Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application. The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered."

[24] Those passages from the majority judgments in K v K , endorsed as they have been by Munby LJ in Re F, in my view represent the current law with respect to any application for the permanent international relocation of a child. In K v K Thorpe LJ, at paragraph [39], was entirely in agreement with the majority on the all important point that the only principle of law to be extracted from Payne is that the child's welfare is to be afforded paramount consideration:

"[39]. As My Lord, Moore-Bick LJ, pointed out in argument, the only principle to be extracted from Payne v. Payne is the paramountcy principle. All the rest, whether in paragraphs 40 and 41 of my judgment or in paragraphs 85 and 86 of the President's judgment is guidance as to factors to be weighed in search of the welfare paramountcy. "

[25] The point of divergence in K v K between Thorpe LJ and Black LJ arises from paragraph [41] where Thorpe LJ states:

"I am in no doubt at all that the guidance in Payne v Payne is posited on the premise that the applicant is the primary carer. It so states in terms."

[26] I have already set out the contrary view given by Black LJ at paragraphs [144] and [145] to the effect that Payne will have relevance to all categories of case, and is not confined to those where there is a 'primary carer'. Black LJ's conclusion on this point was roundly endorsed by Munby LJ at paragraphs [44] and [60] of his judgment in Re F:

"[44]. On this point, therefore, the correct approach is that of the majority, that is to say Moore-Bick LJ and Black LJ. ....

[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K , "the circumstances in which these difficult decisions have to be made vary infinitely." This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a " Payne type case", or a " K v K type case" or a " Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided."

[27] Selective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law. In particular, a judgment that not only focuses solely on Payne , but also compounds that error by only referring to the four point 'discipline' set out by Thorpe LJ at paragraph [40] of his judgment in Payne is likely to be wholly wrong. There are no quick fixes to be had in these important and complicated cases; the paragraph [40] 'discipline' in Payne may, or may not, be of assistance to a judge on the facts of any particular case (whether there is a 'primary carer' or not) in marshalling his or her analysis of the evidence prior to the all important analysis of the child's welfare.

[28] Given the agreement of the parties to an holistic approach to the court's welfare analysis, I need to set out what that involves. The re-crafting of section 8 orders from residence and contact into child arrangements orders has inter alia the benefit of emphasising, absent adverse circumstances and welfare conclusions, the equality of parental responsibility that each parent has. Parents are to be expected to exercise their autonomy and to respect the autonomy of their children by entering into arrangements that plan for their children's long term welfare by providing for a meaningful relationship between each adult and each child. Where they cannot agree there is likely to be more than one proposal for the court to consider."

At [30] Ryder LJ refers to Munby P's approach to the 'welfare analysis' in Re B-S (Children) [2013] EWCA Civ 1146, and makes clear that the approach is one of good practice in all cases:

"We emphasise the words 'global, holistic evaluation'. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.

[30] That approach is no more than a reiteration of good practice. Where there is more than one proposal before the court, a welfare analysis of each proposal will be necessary. That is neither a new approach nor is it an option. A welfare analysis is a requirement in any decision about a child's upbringing. The sophistication of that analysis will depend on the facts of the case. Each realistic option for the welfare of a child should be validly considered on its own internal merits (i.e. an analysis of the welfare factors relating to each option should be undertaken). That prevents one option (often in a relocation case the proposals from the absent or 'left behind' parent) from being sidelined in a linear analysis. Not only is it necessary to consider both parents' proposals on their own merits and by reference to what the child has to say but it is also necessary to consider the options side by side in a comparative evaluation. A proposal that may have some but no particular merit on its own may still be better than the only other alternative which is worse."

The judge below in this case had been too preoccupied with the application of the guidance in Payne, and had failed to focus on the paramountcy principle.

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