I have long been sceptical of this approach. In an article published last autumn, Edward Devereux and I suggested
that it was unrealistic to expect judges to make these kinds of adjustments on a case-by-case basis, when the guidance that they were being asked to adjust started from such a one-sided position.
And so it has come to pass. The latest Court of Appeal decision on international relocation - Re F (International Relocation Cases)  EWCA Civ 882
- overturns an experienced Circuit Judge's decision because she focused too much on the Payne
criteria and not enough on an overall assessment of welfare. Well, don't say you weren't warned.
In its latest comments on Payne
, the Court of Appeal has reached new extremes of contortion. We are told that: 'it would seem odd indeed for this court to use guidance which, out of the context which was intended, is redolent with gender based assumptions as to the role and relationships of parents with a child' (para ). We are told that the questions asked by Payne
'may or may not be relevant' (para ). We are told that '[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law' (para ).
is also criticised for its lack of focus on the child's views about the decision or, putting it more broadly, its lack of consideration of how the child should participate (paras  and ). It is also impliedly criticised for its focus only on the proposals of the parent seeking to relocate, since in Re F
the court emphasises the need to look holistically at the available options from a welfare perspective, and not to approach the options in a linear manner.
So all around, this seems to me to lead to the obvious conclusion that Payne
is no longer a useful authority. So why won't they just say so? Let's put poor Payne
out of its misery and start again with some sensible guidance which can be applied to all relocation cases without confusing hard-pressed trial judges and requiring unnecessary appeals.
Rob George’s column Last Orders: the View from the Bar
is a regular monthly feature in Family Law
. In the August issue Rob gives the new Divorce Centres – and much else – his individual treatment. And there will be more on Re F
in the September issue. Don’t miss it.
This article was originally published on the Legal Liberal blog and has been reproduced here with kind permission.