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Important leave to remove case law subsequent to 2001 Payne Guidelines

In more recent cases, it has been emphasised that the approach set out in Payne is " guidance" only and that the only true principle in such cases is that of the paramountcy of the welfare of the child. Accordingly, no assumptions in favour of the parent seeking to relocate should be read into the decision in Payne.

Another Court of Appeal decision: MK v CK, otherwise known as K v K in 2011, emphasised that the approach set out in Payne is just guidance, that the welfare principle is the paramount consideration and that it would amount to a unjustified gloss on that for the Court to do anything more than issue guidance about how the welfare principle should be interpreted in any particular case.

K v K involved a Canadian mother and a Polish father who shared the care of their children under the terms of a Joint Residence Order made following their divorce. Both parents were bankers and both worked part-time to enable them to spend more time with their children. Under the terms of the Shared Residence Order that had been made the two girls spent five nights with their father and nine nights with their mother in every fourteen day period. However, the parents' work schedules meant that the children spent all of their time with the father being cared for by him while some of the time they spent with their mother they were looked after by a Nanny.

The Cafcass Officer described the decision as a finely balanced judgement but concluded that the balance came down against relocation to Canada and recommended the refusal of the mother's application. The Trial Judge nevertheless granted the mother's application to relocate to Canada and the father appealed against the Trial Judge's decision. All three Judges in the Court of Appeal (L.J. Thorpe, L.J. Moore-Bick and L.J. Black) held that the Trial Judge had misdirected herself in law and allowed the father's appeal.

The Appeal Court Judges in K v K disagreed about whether the guidance in Payne applies to a "shared care" case (where the child spends significant time with both parents following relationship breakdown) rather than a situation where there is a main carer. Lady Justice Black in K v K was keen to dissuade parents from becoming bogged down in arguments trying to establish their situation as either a "Primary Care" or "Shared Care" situation, emphasising the paramountcy of the welfare principle.

Lord Justice Moore-Bick stated that the Payne guidance remained of value both in ensuring that Judges indentified what were likely to be the most important factors to be taken into account and the weight that should generally be attached to them: it also played a valuable role in promoting judicial consistency in decision making. "However the circumstances in which these difficult decisions have to made vary infinitely and the Judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child".

Lady Justice Black emphasised that "the only authentic principle" running through the line of relocation authorities was "that the welfare of the child is the paramount consideration". "Everything that is considered by the Court in reaching its determination is put into the balance with a view to measuring its impact on the child. :(However) that does not mean that everything else - the valuable guidance – can be ignored. It must be heeded... but as guidance not as a rigid principle so as to dictate a particular outcome... where the facts of individual cases are so infinitely variable".

She also said "the effect of the guidance must not be overstated even where the case concerns a true primary carer there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary".

More recent cases following the decision in K v K emphasising that the approach set out in Payne is "guidance" only and the only true principle in such cases is that of the paramountcy of the welfare of the child, so no assumptions in favour of the parent seeking to relocate should be read into the decision in Payne, include the decision of The Court of Appeal in Re F (A Child) (Permission to Relocate) 2012. 

In Re F (A Child) in 2012 the Child and his parents were Spanish. The parents were not married but had been in a longstanding relationship and the family had moved to England from Spain in connection with the father's job intended to be for a two year period but then extended. The family then returned to Spain for a holiday by which time the parents' relationship was in severe difficulties. The father returned to England followed by the mother who stayed only a few days before returning to Spain, leaving the child with his father who became the primary carer. Both parents simultaneously commenced proceedings seeking a Residence Order of the child (in England and in Spain).

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The Judge in the English Court proceedings made a Shared Residence Order and granted mother permission to remove the child from the jurisdiction. In his judgement the Judge focused upon Payne v Payne which he described as "the leading case" on leave to remove and K v K, concluding that the guidance in Payne should not be followed in a shared care case but rather the Court should follow the statutory checklist. Noting that the father had been the primary carer and there was not a shared care arrangement at the time of the proceedings, the Judge held that such entitled him to "look at the Payne guidelines", being the "discipline" set out by Lord Justice Thorpe.

Having done that he then turned to an investigation and evaluation of the child's best interests having regard to the welfare checklist before reaching his conclusion that the mother should have permission to relocate the child to Spain, emphasising that the mother had been the child's main carer for most of the child's life, that the child would be returning to his Spanish roots, and into his extended Spanish family and there was no evidence that he would suffer harm as a result of the change in the status quo. He also made a Shared Residence Order and ordered that the child will live with his father for one week during the Easter school holidays, not less than five weeks during the summer school holidays and the Christmas holidays would be alternated.

The father appealed, claiming that the Judge had erred in his application of Payne v Payne and K v K, arguing that Payne did not apply because it was not the primary carer who was seeking to relocate the child and that K v K did not apply because the case did not involve shared care. He also claimed that the Judge had failed to attach sufficient weight to the status quo. The father's appeal was dismissed.

The judgement of the Court of Appeal was given by Lord Justice Munby who stated that the four stage "discipline" of Lord Justice Thorpe was relevant not only to cases where the applicant was their primary carer: it could be used in other kinds of relocation case if the Judge thought it helpful and appropriate to do so. Although the present case was not one where the application was made by the primary carer the Judge had been entitled to have regard to Thorpe L.J's discipline as set out in Payne. He had correctly appreciated that the case had to be decided by reference to the child's best interests and that is what he did. There was nothing which suggested that he started off with any presumption in favour of the mother's claim. There was no proper basis for any complaint that the Judge either took into account irrelevant factors or failed to take into account any relevant factors or that he erred in either the weight he chose to attach to the various factors he had to take into account or in his decision as to where the ultimate balance fell so there was no proper basis on which the Court could intervene. A number of reported cases at trial and appeal level have adopted the approach advocated in K v K and in Re F (A Child).

Most recently in Re F (A Child) (International Relocation), in August 2015 the Court of Appeal allowed a father's appeal against an Order giving a mother leave to remove their 12 year old daughter to Germany. The Court of Appeal held that the Judge's overreliance on Lord Justice Thorpe's four point "discipline" in Payne had led her away from carrying out the necessary overall welfare analysis that was required. In particular the Trial Judge had failed to take account of "the erosion in the quality of the relationship between father and daughter" if she moved to Germany and failed to carry out "an evaluation of the harm" to the daughter of permission being refused as against "the harm that would result from separation from her father should she move".

This was in the context of the father's claims that the mother had obstructed any increase or development in the relationship between the girl and her father and was unlikely to promote any meaningful contact between the girl and her father; that the mother did not want the father to be involved in the daughter's education; that she denied any benefit to the child of her Jewish heritage and she abrogated to the daughter the responsibility for deciding whether or not to see her father and had failed to disclose her intention to move to Germany at the appropriate time in the proceedings.

The Court of Appeal referred to Payne (2001), K v K (2011) and Re F (A Child) 2012 as the three leading authorities in relocation cases and directed that the starting point in all international relocation cases must now be as set out in K v K "that the only principle to be applied when determining an application to remove a child permanently from the jurisdiction: (is) that the welfare of the child (is) paramount: guidance given by the Court of Appeal as to factors to be weighed in search of the welfare paramountcy: which directed the exercise of the welfare discretion (is) valuable... (to help) Judges... indentify which factors (are) likely to be most important and the weight which should be attached to them and (to promote) consistency in decision making; that since the circumstances in which such decisions have to be made vary infinitely the Judge in each case has to be free to decide what is in the best interests of the child, such guidance should not be applied rigidly as if it contains principles from which no departure is permitted" and (as stated by Lord Justice Thorpe) "the only principle to be extracted from Payne... is the paramountcy principle. All the rest is guidance as to factors to be weighed in search of the welfare paramountcy".

In giving Judgement the Court of Appeal in F (A Child) distanced themselves from old fashioned out of date "gender based assumptions" about parental roles in relation to the care and upbringing of children and the absence of the child's participation in the decision making process: "..in the decade or more since Payne it would seem odd indeed for this Court to use guidance which out of the context which it was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise the absence of any emphasis on a child's wishes and feelings or to take the question one step back, the child's participation in the decision-making process, is stark" (Lord Justice Ryder).

The decision of the Court of Appeal in the most recent case of F (A Child) is good news for the left behind parent, nearly always the father, as most applications for leave to remove are made by mothers. Fathers today are more likely to be successful in opposing international relocation cases than they used to be. Prior to the decision in K v K in 2011 the Court's emphasis on the importance of the "emotional and psychological wellbeing of the primary carer" meant that Courts generally would not refuse a mother's application for leave to remove her children unless the relocation was incompatible with the children's welfare. The decision in Re F (A Child) develops the emphasis of the Court of Appeal's decision in K v K and Re F (A Child) that Lord Justice Thorpe's approach ("discipline") in Payne is guidance only and that the only true principle in such cases is the paramountcy of the child's welfare, so no assumptions in favour of the parent seeking to relocate should be read into the decision in Payne.

However, the emphasis on the paramountcy of the child's welfare and further distancing from the Payne guidance by the Court will make it harder to predict the outcome of each relocation case. These cases are frequently referred to by Judges as being "difficult" and "finely balanced". The decision makes it even harder to settle such cases and even more likely that they will go all the way to a final Hearing. This underlines the importance of parents obtaining skilled legal advice in what is a very specialised area of law, with many pitfalls for the unwary. Careful preparation of a parent's case for or against relocation by his or her lawyers and that parent following legal advice about how to conduct him or herself up to and at the final Hearing is crucial for a good outcome when the decision may often go either way.

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