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Mr Justice Mostyn calls for review of Poel and Payne

Payne v Payne receives further judicial scepticism

Last week's judgment in Re AR (A Child: Relocation) advances the debate concerning the permanent removal of children from the jurisdiction against the wishes of the remaining parent. 

In Re D (Children) [2010] EWCA Civ 50, in which judgment was handed down in February, Lord Justice Wall commented:

'There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.'

He went on to say, 'this .... would, I have no doubt, in the right case constitute a "compelling reason" for an appeal to be heard.'

In Re AR (A Child: Relocation) [2010] EWHC 1346, a French mother sought leave to permanently remove a five-year old child to Troyes in France. The English father applied for shared residence. The child, A, had only French nationality. The father had parental responsibility by virtue of being named on A's birth certificate.

Mostyn J considered the authorities including Poel v Poel [1970] 1 WLR 1469, Payne v Payne [2001] 1 FLR 1052 and Re D (Children) as well as the recent Washington Declaration on International Family Relocation (March 2010). He described the last as follows:  

"The Declaration supplies a more balanced and neutral approach to a  relocation application, as is the norm in many other jurisdictions. It  specifically ordains a non-presumptive approach."

In making a shared residence order, Mostyn J said: 

"In my view (for what it is worth) a review of the ideology of Poel/Payne by  the Supreme Court is urgently needed, where the "emerging body of  significant research in various jurisdictions" would be brought into account."

The Custody Minefield, welcoming the judgment, commented:

"[Mr Justice Mostyn] turns the tables on 40 years of precedent, bringing child welfare back to the fore. In a single judgment, a herd of misguided sacred cows are slain. He reaffirms the desirability of shared parenting, questions the need for supervised contact where there is no evidence of risk, he reminds us of the child's Convention Right to Family Life, he calls for the removal of Thorpe's illegitimate gloss on the purity of the paramountcy principle.

"With such public criticism by the High Court of the Court of Appeal's guidance, and that criticism having been so intelligently reasoned through, an urgent review by the Supreme Court has become a necessity."

Click here to read the judgment in Re AR (A Child: Relocation) and Stephen Jarmain's summary of it.