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Sandra Davis' Week: Payne-Less

Date:12 JUL 2011

Sandra DavisWriting in these pages earlier this year, I suggested that the ongoing controversy surrounding the decision in Payne v Payne could be dampened by the re-affirmation that in relocation cases, as in all other cases concerning children, welfare is the paramount consideration.

By happy coincidence, last week's decision of the Court of Appeal in MK v CK made the very same point.

At paragraph 86 of the judgment, Lord Justice Moore-Bick's noted that "the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance."

This may sound like a statement of the obvious. However, in my view, it serves to reverse a wrong headed judicial approach which has held sway for a decade and more.

The last ten years had indeed seen paragraph 32 of Payne elevated to a legal principle. This had meant that it was almost impossible to successfully oppose a relocation application, irrespective of the strength of the bond between the child and the "left behind" parent. The impact on many families has, undoubtedly, been devastating.

We should be careful not to misunderstand MK v CK in the same way.

The Payne approach, it has been said, remains relevant to the "classic" case where the child lives with one parent and has contact with the other. The same commentators suggest MK v CK will only be relevant in "shared care" cases where the mother and father have broadly equal care of the child.

In my view this can't be right: or at least I hope it isn't.

If I am wrong, this will mean that separating international couples, or couples where one has an overseas connection (or aspiration), will be drawn into preliminary applications for shared residence order. I can't imagine that can be what the Court of Appeal envisaged, in spite of what Lord Justice Thorpe had to say to the contrary at paragraph 57 of the judgment.

I agree with Lady Justice Black's comments at paragraph 145 of the judgment. She rightly states that it must be better for separating parents to try to agree care arrangements that work best in their children's interests rather than take pre-emptive steps to obtain a tactical advantage in relation to any later relocation proceedings.

Such a reading of MK v CK is consistent with children's welfare being treated as the paramount consideration for the Court.

This movement away from a matricentric approach has been long overdue.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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