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The End of Payne?

Andrea Watts, barrister, at 1 King’s Bench Walk, considers the Court of Appeal’s judgment in Re K (Children) [2011] EWCA Civ 793 and its impact on pre-existing case law and, in particular, Payne v Payne

Andrea Watts, Barrister, 1 King's Bench Walk

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Andrea Watts
, Barrister, 1 King's Bench Walk

The Court of Appeal handed down judgment in Re K (Children) [2011] EWCA Civ 793 on 7 July 2011.  It was a welcome opportunity to consider the application of Payne v Payne [2001] EWCA Civ 166 in international relocation cases following criticism of the authority both at home and abroad.  What followed was the most groundbreaking decision in an external relocation case since Poel and Payne.  Any applicant with a shared care arrangement will now find it much more difficult to persuade a court to grant permission to relocate out of the jurisdiction.  Critics of Payne may be disappointed that the judgment did not go far enough.  The guidance remains applicable where there is no such shared care arrangement which is likely to be the vast majority of cases.  Further, Black LJ argued that Payne should not be put completely to one side even in shared care cases.

The facts
The case concerned a Canadian mother and a Polish father.  They met at university in Toronto in 1992.  The father moved to England in 1993 and the mother moved there 10 years later.  They were married in 2004 and went on to have two children; I aged 4 years and A aged 18 months.  The marriage sadly broke down and they separated in July 2010 but arrangements for the children remained amicable. Both parents worked in the banking industry, although neither of them held a full time position so that they were available to meet the needs of the children.  They obtained a shared residence order in August 2010 which provided for the father to care for the children for five nights per fortnight with the mother caring for them the remaining nine nights, although the reality was that the father spent six consecutive days with the children and the mother had the assistance of a nanny during her time at work.  In this respect the time the children spent with each parent was broadly equal.

The mother applied for permission to relocate to Canada with the children.  Her family was in Canada and she felt isolated and stressed here. She intended to return to live with her parents and enjoy the emotional and material support they could provide for her and the children.  The father opposed the application on the basis that he would lose his relationship with the children and they would no longer enjoy the shared care of their parents. In this sense it was an unremarkable case.

The decision below
The case was heard by Her Honour Judge Bevington, sitting as a Deputy in retirement.  She heard evidence over four days from the parents, the reporting CAFCASS officer, the maternal grandmother, the paternal aunt and the mother's general practitioner.  The CAFCASS officer reported that it was a "fine and difficult balance" but ultimately recommended that the mother's application be refused. She went on to note that the mother needed to feel supported as an adult and a parent in England and that if she still wished to return to Canada in 3-4 years then a move would be likely to be in the children's best interests.  Her Honour Judge Bevington granted the mother's application.  She followed the guidance in Payne v Payne and found that the mother's proposals were reasonable and her application was driven by a genuine motivation and there was no intention to bring about an end to contact between the children and their father. She considered that the effect of a refusal on the mother would be a feeling of increasing isolation and depression.

Counsel for the father politely pointed out that the judgment made no reference to the father's case and invited the judge to deal with that.  The judge responded that she had taken everything into account, including the impact of the decision on the father and the reduction in physical contact between him and the children.  Counsel for the father asked the judge to consider the question of permission to appeal, which was refused.

The Appeal
The father appealed and an oral hearing was held on 18 May 2011 before Thorpe LJ, Moore-Bick LJ and Black LJ.  The father, represented by Deborah Eaton QC and Madeleine Reardon, submitted that the decision was flawed for the following reasons:

(i) The judge rejected the recommendations of the CAFCASS officer without proper analysis or explanation;
(ii) The judge directed herself by reference to the guidance for applications by primary carers given by Dame Elizabeth Butler-Sloss P. at paragraph 85 of Payne, rather than the guidance given for applications by a parent with a shared care arrangement by Hedley J in Re Y; and
(iii) The judge only referred to the mother's case in her judgment and did not remedy this defect even after it was raised by counsel for the father.

The mother, represented by Timothy Scott QC and Indira Ramsahoye, accepted the imperfections in the judgment but submitted that the findings in favour of the mother were so strong that the Court of Appeal could not set aside the permission as an exercise of discretion.

Thorpe LJ and Moore-Bick LJ concluded that the father should succeed on each of the three points raised.  Black LJ disagreed in relation to point (ii).  Points (i) and (iii) were clear on the face of the judgment and their Lordships did not need to dwell on those issues.  Point (ii) however required consideration of the evolution of the case law in external relocation applications.

Payne v Re Y?
The exploration of the case law began with Poel v Poel [1971] WLR 1460, a case where the mother of a 2 year old successfully sought to relocate to New Zealand with the child and her new husband.  Sachs LJ noted that when a marriage breaks down a child will find itself in the custody of a single parent and, if that arrangement is working, the court should not "lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given."  An interference was thought to put strain on the parent and any new marriage which might ultimately impact on the welfare of the child.  Thorpe LJ commented at paragraph 44 of Re K that:

 "Of course that all now seems archaic given our shift from parental power to parental responsibility introduced by the Children Act 1989 and given the more recent emphasis on the value to children of shared parenting where the parental relationship and the circumstances are favourable."

He went on to say at paragraph 46:

"… the survival of the authority of Poel into this century, in my judgment depends crucially upon the primacy of the applicant's care.  As Ms Eaton put it, if she is supplying so much she must be supported in her task precisely because the children are so dependant on her stability and wellbeing.  Once the care is shared there is not the same dependency and the role of each parent may be equally important.  The judgments in Poel consider only the position of the primary carer and an earlier position where there is a pending contest as to who should be the primary carer."

Similarly he notes that Payne does not consider anywhere what the court's approach should be where there is no primary carer.  In that case the mother had a residence order that was not in dispute.  Dame Elizabeth Butler-Sloss P. gave her guidance at paragraph 85 on the basis that residence was not a live issue.  She went on to say at paragraph 86 that where there is a dispute as to which parent should be granted a residence order the future plans that each parent has for the child would be relevant.  There was no mention of a situation in which both parents share the care of the child.

Thorpe LJ and Moore-Bick LJ were prepared to lay Payne to rest in cases involving shared care.  They referred to the decision of Hedley J in Re Y [2004] 2 FLR 330 (cited in support of point (ii) of the father's appeal but not at the original hearing) in which he sought to distinguish between relocation cases where the child clearly lives with one parent and where there is a live dispute over residence or a shared care arrangement.  He concluded at paragraph [14] that in the latter set of circumstances

"…many of the factors to which the court drew attention in Payne v Payne… whilst relevant may carry less weight than otherwise they commonly do."

He went on to say at paragraph [16]:

"…What it seems to me I must do is to remind myself of the opening provisions of the Children Act 1989.  Section 1(1) says that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration, and in considering these issues I have to take a number of matters into account as required by s 1(3)."

Thorpe LJ and Moore-Bick LJ went further than Hedley J in Re Y.  They agreed that the only principle to be extracted from Payne is that the welfare of the child is paramount and the court should consider the statutory checklist in exercising the discretion but went on to say that the rest was guidance and only applicable where the applicant is the primary carer.  In this way Payne is no longer the leading authority in cases involving a shared care arrangement.
What was meant by primary care and shared care?  Even though the Court of Appeal in T v T [2010] EWCA Civ 1366 considered that Mostyn J went too far in Re AR (A Child: Relocation) [2010] EWHC 1346, [2010] 2 FLR 1577 by saying that the shared residence order is 'nowadays the rule rather than the exception' the reality is that an increasing number of shared residence orders are being made where the division of time between the parents is far from equal. Thorpe LJ addressed this at paragraph 57 of Re K

 "....What is significant is not the label "shared residence" because we see cases in which for a particular reason the label is attached to what is no more than a conventional contact order.  What is significant is the practical arrangements for sharing the burden of care between two equally committed carers.  Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v. Payne should not be utilised.  The judge should rather exercise his discretion to grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989."

Black LJ disagreed with this approach.  She considered the relevant case law over 40 years both leading up to and following the Children Act 1989.  She agreed that the only principle is that the child's welfare is the paramount consideration but went on to say that the guidance could not be ignored as a result. She considered the summary of guidance in paragraph 85 of Payne and concluded that there was no weighting in favour of any particular factor noting that whilst the reasonable proposals of the applicant carry "great weight", the effect on the child on the denial of contact with the other parent is "very important."  She considered that Payne identifies various factors which could be relevant to any relocation case and provides guidance to ensure those matters are properly considered.  She says at paragraph 144:

"… 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."

She goes on to say at paragraph 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."

Conclusions
The judgment in Re K is clearly incredibly significant in the area of international relocation cases.  In cases concerning a shared care arrangement between parents the guidance in Payne should now give way to a consideration of the welfare of the child and an application of the welfare checklist. This case does not however result in the end of Payne.  The guidance remains applicable in cases where the applicant is quite clearly the primary carer but Re K makes it clear that it is only guidance, not a binding checklist akin to s.1(3) of the Children Act. 

Thorpe LJ referred to the work of the Institute for Social and Economic Research which reported in the survey "Understanding Society" that the proportion of equal shared care arrangements was 3.1% of the total.  This was a study of 100,000 people in 40,000 households and it is not clear whether "equal shared care" referred to arrangements where the division of time between parents was completely equal or "more or less equal."  In any event a complete departure from Payne will not be applicable in the majority of cases.  If the approach set out by Black LJ is to be followed the guidance in Payne should still be considered in all relocation cases and the court must be clear as to what weight should be attached to the relevant factors identified in each case. It has however, brought the focus back on to the court's primary role: determining what is in the best interests of each child in each individual case. The court makes clear that the guidance in Payne is merely that: guidance. 

Black LJ warned against pitching Payne and Re Y against each other. However, considering Thorpe LJ's judgment, its seems inevitable that parents will try to argue that their case fits into the category of one or other of those cases.  Black LJ also warned against arguments over a shared residence order in attempt to build a case for any relocation application.  Given the clear guidance of Thorpe LJ on this point, this seems less likely but parties may still seek to build their case in advance by arguing over the division of a child's time between parents where an application to relocate is a possibility.  Clearly practitioners will consider advising a parent considering a move abroad not to agree to a shared care arrangement and conversely a non-resident parent to consider whether a shared care arrangement might be manageable.

Black LJ further made it clear that this case, and the principles involved, applies only to international relocation; the approach of the courts to 'internal' relocation cases is unaffected.