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International Relocation: less ‘Payne’ – more pain?

Anita Mehta, barrister at Crown Office Row, Brighton, considers the implications of Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 to the jurisprudence in respect of international relocation cases and private law generally.


Anita Mehta
, barrister at Crown Office Row, Brighton

International relocation applications have, for some time, rightly or wrongly, been synonymous with Thorpe LJ's much debated paragraph 40 of his judgment in Payne v Payne [2001] EWCA Civ 166

'(a) Pose the question: 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. Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it 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?

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.'

Thorpe LJ called this a 'discipline'.  Although, the writer would hazard a guess (from the number of these applications that have been heard in the Court of Appeal) that the distinction between a legal test and a discipline has not always been clear to courts and practitioners.

The most recent authority dealing with this jurisprudence is Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 in which Ryder LJ gives the lead judgment of the Court of Appeal.  This case is now required reading when dealing with an application for international relocation. However, it is of wider interest, as it sets out the correct approach to private law applications generally.

Permission to appeal was granted on three grounds, in essence questioning the correct approach and how the court should conduct the welfare analysis in these applications. The Court of Appeal has been trying to reduce the importance of the judgment in Payne v Payne in these applications for some time.  What Re F (2015) makes absolutely clear is that any judgment which focuses or only relies on the Payne v Payne 'discipline' is at risk of being appealed.  Ryder LJ notes the earlier Court of Appeal authorities that the Payne v Payne guidance should not to be elevated to 'principle'. 

He notes in Re K (Children) [2011] EWCA Civ 793 (a judgment from May 2011) that Thorpe LJ himself observes that the only principle to be extracted from Payne v Payne is the paramountcy principle and all the rest is 'guidance'.  Then, in October 2012, Munby LJ in Re F (A Child) [2012] EWCA Civ 1364 also made it clear that there are no presumptions in cases governed by s.1 of the Children Act 1989; from beginning to end the child's welfare is paramount. 

To that extent, Re F (2015) adds nothing new to the jurisprudence of the last few years in international relocation cases.   Payne v Payne does not set out a legal principle; it is guidance to assist in the welfare analysis which may or may not be of aid according to the facts of the particular case.  Whilst there has been a lack of clarity as to whether the applicability of the guidance depended on whether the case involved a 'primary carer' or 'shared care' (frankly, practitioners have not been helped by conflicting judgments in the authorities), Re F (2015) makes it clear that the nature of the current care arrangement does not dictate the relevance of the Payne v Payne guidance.

Ryder LJ's judgment states, in terms, that in setting out the correct approach to international relocation cases he is not 're-crafting' the law; he is merely describing the approach that underpins the existing jurisprudence.  Therefore, the writer will endeavour to walk the line to identify what is significant for future practice without suggesting that the Court of Appeal has re-crafted its own dicta.  There are two points of interest in the 'not re-crafted law, merely descriptions'.

Firstly, Ryder LJ describes that in determining these applications the correct approach is a holistic approach to the welfare analysis, although the statute does not require that the welfare checklist is utilised, Re F (2015) reiterates that it should be used. 

The Payne v Payne discipline not only appeared to create a presumption in favour of the primary carer but also seemed to endorse an old-fashioned linear analysis whereby the court considered the proposal of the primary carer first; and if that was genuine and realistic, the discipline did not seem to suggest that the court needed to bring the same level of scrutiny to the other parent's proposal.  Re F (2015) makes clear that the court is to consider the two options side-by-side.  The court then undertakes a multi-faceted welfare evaluation taking account of the pros and cons of each option.  

This is the same approach the Court of Appeal has endorsed in care proceedings.  What this case makes clear, is that this approach is good practice in any decision about a child's upbringing.  Therefore, practitioners should ensure that the court performs this evaluation in all private law applications whether they relate to international relocation or, as McFarlane LJ puts it in Re F (2015), whether handover takes place at 'Starbucks' or 'McDonald's', albeit the extent of evaluation would reflect the importance of the decision.  This is really significant for practitioners in private law applications.  How often, for example, do the Justices (Tier 1 Judges) perform such an analysis in reaching a decision in private law proceedings?

Practitioners in all areas should note McFarlane LJ's caution that courts are not to elevate 'global, holistic evaluations' to a new test; this is just a form of wording to encapsulate the welfare balancing exercise.  No doubt, he is worried that after 14 years of courts and lawyers apparently paying too much attention to the wording in Payne v Payne rather than the overall meaning that we are all about to do the same with the words 'global, holistic evaluation'

The second 'not re-crafted law, merely description' of significance in respect of applications for international relocation is confirmation that the court must consider whether the parties' plans are proportionate.  Ryder LJ points out that there has long since been clarification that the ECHR applies to these cases and no doubt the ECHR and the right to family life have been mentioned in final submissions in every case in recent years where such an application has been before the court.  The writer is less clear how often courts have considered whether the application for international relocation is proportionate. 

In terms of wider practice, Ryder LJ clarifies that although the Convention applies to all private law cases, the court is not specifically required to carry out a proportionality argument in every private law case.  Indeed, it would be quite difficult to apply a proportionality evaluation to McFarlane LJ's example of whether handovers take place at Starbucks or McDonald's.  The reason proportionality must be considered in international relocation cases is because of the potential to sever the relationship between one parent and the child: the same risk that exists in care proceedings. 

For what it is worth, the writer's view is that this case is a welcome clarification of the law in international relocation cases; they have always seemed weighted in favour of the applicant and that has not seemed necessarily right or fair.  However, as lawyers, our primary attraction to the Payne discipline was that we were able to advise our clients as to the likely outcome with some certainty – and that will be missed.