Family Law

Contested international child relocation cases have profound effects on families.  The impact on a parent of being refused permission to relocate abroad can be just as harsh as the impact on the parent left behind if permission is granted. For children the impact is even greater. 

If permission to relocate overseas is granted, their relationship with the parent left behind will, to a greater or lesser degree, become dislocated. If permission is refused, a child will often grow up in the knowledge that their primary carer feels that they have been forced to remain living in this country against their wishes.

Given the competing tensions between one parent who wishes to relocate, the other who opposes relocation and, in the middle of both, the child welfare issues that arise, it is little wonder that the leading decision of the Court of Appeal in Payne v Payne [2001] Fam 475 is so controversial. 

In Re D (Leave to Remove: Appeal) [2010] EWCA Civ 50 Sir Nicholas Wall said there was a perfectly respectable argument that Payne places too great an emphasis on the wishes and feelings of the relocating parent.  "In doing so", he said "it ignores or relegates the harm done to children [by the dislocation of their relationship with the parent left behind]".

This, according to Sir Nicholas, would, in the right case, constitute a compelling reason for the Supreme Court to review the law on relocation.

A couple of weeks ago the President of the Family Division gave the lead judgment in another relocation case, Re W (Children) [2011] EWCA Civ 345, in which he appeared to row back from his earlier decision in Re D.

In the postscript to his judgment, Sir Nicholas retracted his use of the word "ignores" in Re D, adding "unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Payne v Payne."

The most controversial passage in Payne is contained at paragraph 32 where Lord Justice Thorpe said "...in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability." 

Taken in isolation, it is easy to argue that this endorses a "matricentric" approach, putting to one side the overriding statutory imperative that the child's welfare should be the court's paramount consideration.

But there is much in Payne to counter that approach, not least the summary provided at paragraph 85 of the judgment by the then President, Dame Elizabeth Butler-Sloss, setting out the factors that judges should have in mind when trying relocation cases.

According to Dame Elizabeth, these are:

(a)     The welfare of the child is always paramount;

(b)     There is no presumption created by the Children Act 1989 in favour of the applicant parent;

(c)     The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.

(d)     Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(e)     The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.

(f)     The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

(g)     The opportunity for continuing contact between the child and the parent left behind may be very significant.

If the Supreme Court was to hear a relocation appeal, I cannot see how the Justices could improve on Dame Elizabeth's summary.

Perhaps then, all that is needed to move on from the controversy surrounding Payne is a change of emphasis and the recognition that a judicial gloss on any statute is almost without fail unhelpful. Central to this change of emphasis is the re-statement that in international relocation cases, as in all cases concerning a child's upbringing, the child's welfare is the paramount consideration.  This will, at the very least, ensure that international relocation cases are decided on their facts rather than skewed in favour of one parent on the basis of a questionable judicial presumption.

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.