18 July 2011

Sandra Davis recently wrote about the relocation case of MK v CK [2011] EWCA Civ 793 and I agree with her reading of the case. When I read the judgment of Thorpe LJ I was pleased to see the clear statement in terms that the only principle to be drawn from Payne v Payne [2001] 1 FLR 1052 is the paramountcy principle - all the rest is guidance. I was however concerned by his further comments that the Payne guidance is not to be applied to shared residence cases, but rather that of Hedley J in Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330. Although Thorpe LJ made it clear that this does not mean shared residence as a label but genuinely shared care on the ground, I could imagine the likely arguments as to at what point care becomes shared - how much time, days or nights, and of what quality is required?

I was therefore relieved and heartened by Black LJ's judgment that in her view it is not simply a case of applying Payne where there is a primary carer and applying Re Y where there is shared care. The guidance in Re Y is part of the same framework as Payne and exemplifies how the weight to be attached to the relevant factors alters depending on the facts of the case. She specifically stated that there is no presumption in favour of relocation even where the applicant is a true primary carer, and that there should not be arguments as to whether a case is a ‘Payne case' or a ‘Re Y case'.

So where does this leave us? All three judges were clear that the overriding principle is the welfare of the child (how could it be otherwise in the light of s1 Children Act 1989?). Personally I would suggest that Black LJ's approach sits more easily with the paramountcy principle. Therefore the guidance from Payne and other caselaw should be applied giving each factor appropriate weight depending on the facts of the case in order to attain welfare paramountcy.

The parody of Payne that Lord Wilson warned against has been avoided. The return to clear legal principle is welcome - no presumptions, no gloss, and presumably now no need for Supreme Court clarification.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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