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family law, divorce, relocation, Payne, shared care arrangements, primary carer
Recently I attended a debate devoted to the highly emotive issue of relocation. I voiced the opinion that too little weight is given – still – to the damage caused to a child when one of their parents leaves the jurisdiction.
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Apr 16, 2015, 09:02 AM
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Recently I attended a debate devoted to the highly emotive
issue of relocation. I voiced the opinion that too little weight is given –
still – to the damage caused to a child when one of their parents leaves the
jurisdiction. I said that parents
who choose to have a child together have a fundamental duty to do everything in
their power to ensure the child has a good relationship with both of them.
I didn’t think it was a radical position to adopt and, as
was mentioned during the evening, most other jurisdictions take a far less
flexible approach than we do on relocation. But I can report that it is certainly not a view universally
shared by family lawyers in London in 2015.
It has been a long journey since Payne v Payne  EWCA Civ 166,  FLR 1052, even longer since Poel v Poel  1 WLR 1469 began haunting
the corridors of the family courts.
Sadly, though, there haven’t been the milestones that we might have
expected given the changes to family
life that have taken place in the last 40 years.
Back in the day, Winn L J said in Poel:
‘I am very firmly of the opinion that the child’s happiness is directly
dependant not only upon the health and happiness of his own mother but upon her
freedom from the very likely repercussions, of an adverse character, which
would result affecting her relations with her new husband … [if she’s refused
permission to take the child to New Zealand.]’
Yet this dated approach is still alive and well in many
decisions on relocation.
Thirty years later Thorpe LJ, in Payne produced the notorious guidance that again placed too much
weight on the happiness of the parent who wants to leave and not nearly enough
on the child’s relationship with the parent left behind. Lord Justice Thorpe, has been
criticised in some quarters for giving too much weight to the ‘reasonable
proposals’ of the parent planning a new life with the child and the anticipated
distress that would be suffered by that parent should their wishes be thwarted.
Although his lordship was sure to
stress that there was no presumption in favour of the leaving parent who was
also the primary carer, that has been the effect in practice.
There have been a number of sightings of judges keen to dissent from
this happy parent equals happy child equation but none has felt able to tackle
it on a fundamental level. K v K (Relocation: Shared Care Arrangement)  EWCA Civ 793,  2 FLR 880 has tinkered a little bit with the goalposts by stressing
that the only principle that comes from Payne
is that the welfare of the child is paramount, the rest being guidance that can
be applied or distinguished depending on the facts of the individual case. Yet, ‘primary carers’ still have the
whip hand in practice.
And it’s too simplistic and dangerous to use the phrase
‘primary carer’ as if it’s set in stone.
Many, many parents are of equal importance to their children whether
they see them 25%, 35% or 45% of the time. Those parents still need to know about their children’s
schools, their friends and their lives on a day-to-day basis if the relationship
is not going to morph into something diminished and superficial.
How out of date it all is. We may have global families but travelling halfway across the
world every few weeks is not the norm. Far more of these cases comprise families with limited funds who
can no more contemplate regular global travel then buying a pied à terre in
Knightsbridge. And don’t get me
wrong. Even for the wealthy hands-on
parent, monthly visits are not enough, especially when factoring in a new
culture or language from which they may be shut out forever.
There’s still a whiff of the 1970s about our judges when it
comes to mothers and children. And
we are miles away from the rest of Europe and most other jurisdictions. The happy parent/happy child approach illustrates the way in
which one parent’s interests can be allowed to completely overrule the
other’s. How sad to lose your
child to, say, Brazil or Uganda with the knowledge that henceforth you may see
them once a year and then only so long as the costs of travel are affordable.
Recently I saw a client for the first time in twenty years.
I had met her when her then husband had secured an order enabling him to take
their two young daughters to live with him in Australia. Twenty years later she
was still traumatised by that decision and cried as she recalled everything
about that time in her life, including the coat I’d owned that winter and the
names of my own children. It had been the most important, if devastating, time
in her life. As a result, it had completely blighted the last twenty years and
I doubt she will ever recover. We have all seen similar cases (although
generally where the mother is relocating) and I’m not sure it’s right that all
the emphasis of the court is on the children and none on the left behind
parent. For that parent, life will never recover and the ones without deep
pockets can be saying goodbye to their children for many years, sometimes
Of course there will be exceptions. There are absent or abusive parent.
Ones who show no interest in their children until they realise that they have
the opportunity to ‘punish’ the other parent by keeping them trapped in a
jurisdiction they have come to hate, depriving them of their new love interest
or the support of their family on the other side of the world. It is a balance,
of course it is, but I think the emphasis has been all wrong. We place great store on parental obligation but then the
court reduces the parent’s relationship with their child to one of a number of
factors that it considers when giving permission to relocate. Children’s interests are at the heart
of our legislation, and rightly so, but parents are people too, not just there
to comply with their financial obligations and reduce the benefits burden on
Judges can look at a mother, with a new life beckoning from the other
side of an ocean or two, and think 'There’s always Skype or the summer
holidays'. Not good enough. We all make sacrifices for our children, and striving
to stay in the same country as the other parent should be as fundamental as showing
them our love. The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.