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Court of Appeal's groundbreaking decision on leave to remove applications

Application of Payne v Payne scrutinised in ‘shared care’ cases

In Re K (Children) [2011] EWCA Civ 793 on 7 July 2011 the Court of Appeal has taken the opportunity to consider the application of Payne v Payne [2001] EWCA Civ 166 in international relocation cases. The judgments in the case – delivered by Thorpe, Moore-Bick and Black LJJ – follow continued criticism of the authority both at home and abroad.  The decision of the Appeal Court constitutes the most groundbreaking decision in an external relocation case since Poel and Payne

As Andrea Watts of 1 King's Bench Walk explains in a detailed analysis of the judgments:

'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.'

In this case the mother was Canadian, the father Polish.  They met in Toronto in 1992 and later moved to England. They married in 2004 and had two daughters; I aged 4 years and A aged 18 months.  They separated in July 2010.

Both parents worked in the banking industry, although not full time.  They shared the care of the children under a shared residence order made in August 2010. The children spent five nights (six days) with their father and nine nights with their mother in every fourteen day period.  The mother had the assistance of a nanny whilst at work whereas the father cared for the children unaided. In this respect the father's share of the care was not inferior to the mother's.

The mother applied for permission to relocate to Canada with the children.  She wanted to go home to enjoy the support of her parents following the breakdown of the relationship with the father.  The father objected due to his commitment to the girls and the significance of the shared care arrangement.  CAFCASS had provided a report on the issue recommending that the mother's application be refused, although it was a "fine and difficult balance". Her Honour Judge Bevington granted the mother's application. 

The father appealed on the basis that (i) the Judge rejected the recommendations of the CAFCASS officer without proper analysis or explanation, (ii) she directed herself by reference to guidance for applications by primary carers (Dame Elizabeth Butler-Sloss at paragraph 85 of Payne), rather than guidance in applications by a parent with a shared care arrangement (Hedley J in Re Y [2004] 2 FLR 330) and (iii) she referred only to the case raised by the mother and did not remedy this defect even when it was raised by counsel on behalf of the father.

The Court allowed the father's appeal.  Their Lordships agreed that the only principle to come from Payne was that the welfare of the child is paramount. The rest is guidance to be applied or distinguished depending on the circumstances. The judge should apply the statutory checklist in section 1(3) of the Children Act 1989 in order to exercise his discretion.    Thorpe LJ confirmed the approach set out in Re Y; that the guidance in Payne is only applicable where the applicant is the primary carer. Where parents share the burden of caring for the children in "more or less equal proportions" the approach in Payne at paragraph 40 should not be applied.  The label "shared residence" is not significant in itself. Black LJ reached the same conclusion as Thorpe LJ and Moore-Bick LJ, but by a different route saying Re Y is not a different line of authority from Payne but "a decision within the framework of which  Payne is also part".  Future cases should not become embroiled in arguments as to whether the amount of time a child spends with each parent makes it "a Payne case" or "a Re Y" case.  All the facts of the case must be considered.

Michael Robinson, who has campaigned for a reconsideration of Payne v Payne, commented: 

"The Relocation Campaign welcomes the Court of Appeal's acceptance that the guidance within Payne v Payne harks back to a stereotypically 1970s view of family life, and is not relevant to modern parenting or society (at paragraphs 68 to 70 of the judgment). We particularly note and welcome paragraphs 78 and 79 of the judgment. Since starting this campaign, we have held that the rigid application of the guidance within Payne v Payne has gone counter to the paramountcy principle within the Children Act.

"The test applied by judges when considering matters which impact on child welfare was warped. The assumptions and weighting given to the distress argument were and are unscientific and unsubstantiated, yet until this judgment, have remained fiercely defended by Lord Justice Thorpe. We would further like the courts to properly consider the child's Convention Rights to contact and family life, and its repeated failures to put in place adequate safeguards to protect a child's relationships. We note that the child in Payne v Payne went on to lose all contact with their father. The guiding case was a failure. It's continued application as binding precedent has been a scandal."

To read Andrea Watts' article The End of Payne?, click here.