Imagine : A world without Payne

If you had asked a family lawyer in recent years about the law in relation to international relocation, the reply would have been that if the mother was genuinely motivated and if her plans were reasonable, then it was almost certain that she would be granted permission to emigrate with the child.  If you were acting for the mother, you would no doubt establish that the effect upon her of a refusal of permission would be devastating.  You would then issue an application, confident that you would be likely to succeed, almost regardless of the father.

This reflects the interpretation of the decision in Payne v Payne .  In paragraph 26 of his judgment, Thorpe LJ noted that the mother’s application “will be granted unless the court concludes that it is incompatible with the welfare of the children” and at paragraph 40, he set out a test which essentially reflected this principle.  At paragraph 85 of her judgment, Dame Elizabeth Butler-Sloss P set out guidance as to the considerations which should be in the forefront of the judge’s mind, including that the reasonable proposals of the parent with a residence order “carry great weight”; and that the effect upon the mother of a refusal of leave is “very important”.

These principles had been developed in a growing body of jurisprudence beginning in 1970 with the decision in Poel v Poel.   In that case, it was recognised that it would be a “grave thing” for the child to be deprived of a relationship with his father, but on the other hand “there is no reason to fear that the arrangements which are being made for his protection, support and upbringing are in any respect to be regarded as inadequate properly to serve the protection of his welfare, physical or mental”.   Furthermore, once a child is in the sole custody of one parent, the court should not “lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given”  and any such interference may “produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent.  In that way it might well in due course reflect on the welfare of the child”.

The fundamental importance of the effect upon the mother of a refusal of leave was a concept which was developed in a string of subsequent cases.  It was said to be a “strong thing” to prevent the parent with custody from following her chosen career.   Furthermore, it was said  that if the proposed move is a reasonable one then “leave should be refused only if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parents are incompatible”.   These cases culminated with the decision in Lonslow v Hennig (formerly Lonslow)  which, whilst recognising the importance of the children’s “profound” relationship with their father, nonetheless supported the mother’s plans.

By the time Payne came to be decided, the law could be summarised thus:  if the mother’s plans were rejected, the effect on her would give rise to bitterness which would adversely affect the child;  she, as the custodial parent, was entitled to make plans for the upbringing of the child and, where those plans were reasonable, the court should be slow to interfere.  Her entitlement to make those plans, together with the effect on her of a refusal, gave rise to a presumption that she would succeed.

In contrast, the judges in Payne stated repeatedly that there was no such presumption and that, on the contrary, the decision would rest in each case upon an evaluation of the child’s best interests, those interests being of paramount importance. As they rightly pointed out, the paramountcy principle was accepted in each of the line of cases beginning with Poel.  Butler-Sloss P explicitly wanted to move on from the jurisprudence of the previous 30 years.  She thought that it would be helpful to reformulate principles which “may have been expressed from time to time in too rigid terms” with the use of the word “presumption” over-emphasising but one element of the approach.

Of course the judges recognised the importance of the effect upon the mother of a refusal and the consequent effect upon the child, but that was but one of the factors “to be given appropriate weight in each individual case and weighed in the balance”.   And in her guidance at paragraph 85, the President gave top billing to the paramountcy principle and to the fact that there was no presumption.  Although she ascribed “great weight” and importance to the reasonable proposals of the mother and the effect on her of a refusal, she described the effect on the child of denial of contact with its father and the opportunity for continuing that contact in equal terms.

It is difficult to see how, when reading the President’s judgment as a whole – carefully crafted as it was to move away from the suggestion of a presumption – it could give rise to the generally held view that the mother’s reasonable proposals will be accepted by the court.  The judgment of Thorpe LJ is undeniably more problematic; in saying that the mother’s application “will” be granted unless incompatible with the child’s welfare, it is easier to see where problems have arisen notwithstanding his repeated denial of a presumption.
 
The guidance in Payne was intended to be helpful, but the jurisprudence since then is considerable, reflecting the father’s imperative need to “fight” for his children.  To that extent, no amount of guidance will resolve the conflict, especially given the infinitely varied circumstances which surround each individual case.  Thus, although fathers have carried on trying, Payne has consistently been interpreted and applied so as to relegate them to the position of “also ran”.  It is against this backdrop that the father in CK v MK appealed against the decision to allow his former wife to return to her native Canada with their two daughters.

The children were aged 4 and 2 respectively.  Their father is Polish, although he had spent substantial parts of his life in Canada, and moved to England in 1993.  Their mother moved to England in 2003.  They were married in London in 2004, but separated in 2010, after which a shared residence order was made.  The girls spent five nights with their father and nine with their mother in every 14 day period.  The parents had arranged their respective work commitments around the girls.  The father, in particular, compressed five working days into three extended days, and was able to spend much of his time with them, caring for them without assistance.  The mother did not work on Wednesdays, and relied on a full-time nanny to assist her.

The mother presented a “classic” application.  She wanted to go home.  She felt isolated and stressed in this country.  In “classic response” the father relied upon the significance of his relationship with the girls and the shared care arrangements.

Having found that the mother’s plans were reasonable, and that her distress would be likely to increase if consent was refused, with the consequential impact upon the girls’ welfare, the judge granted the application.  No-one referred her to the decision in Re Y , in which the mother (who shared the care of the child with the father) was refused leave. The father in CK v MK appealed, inter alia, on the basis that the judge should have directed herself by reference to the decision in Re Y rather than by reference to Payne.

Thorpe, Moore-Bick and Black LLJ heard the appeal, and granted it, but they differed regarding the significance of Re Y.

Thorpe LJ – like the other judges – asserted that he was bound by Payne only to the extent that the welfare of the child is the paramount and only principle, with “all the rest” being mere guidance to be weighed in search of the welfare paramountcy.  However, he also found that the guidance in Payne assumed that the applicant is the primary carer and did not therefore apply to the facts in the instant case.

Thorpe LJ cited with approval the judgment of Hedley J in Re Y.  Hedley J found that many of the factors to which the court drew attention in Payne “whilst relevant” may carry less weight in a shared care case.  Thorpe LJ went further:  he said in terms that the approach which he suggested in Payne should not be used in shared care cases.  Rather, the judge should simply exercise his discretion by applying the statutory checklist in s 1(3) Children Act 1989.

Thorpe was thus able to preserve his own judgment in Payne, but in the process created a new uncertainty:  when is the care of the child shared sufficiently to warrant a Re Y approach as opposed to a Payne approach?  Thorpe LJ said that Re Y would apply when the parents share care in a “more or less equal proportion”, but this invites a whole debate on the precise arrangements made, perhaps over a lengthy period of time, when arrangements may be flexible and vary from week to week.  Black LJ recognised the need for caution in this respect.   She did not see Re Y as representative of a different line of authority, but merely as an example of how the weight to be attached to the relevant factors alters depending upon the facts of the case.  She warned against “preliminary skirmishes” in order to establish whether the case is a “Payne case” or a “Re Y case”.  Given that Thorpe LJ was apparently the first judge to use the word “presumption” in this context,  and his arguably conflicting remarks in Payne itself, it would be a pity if any further uncertainty in the law were to be created.

In considering the controversy surrounding Payne, Moore-Bick LJ suggested that it arose as a result of the failure to distinguish clearly between legal principle and guidance.  In other words, the only principle of law enunciated in Payne is that the welfare of the child is paramount; all the rest is guidance.  The welfare of the child overbears all other considerations, and he did not think that the court in Payne intended to suggest otherwise.  Perhaps sometimes it takes a non-family lawyer to see through the trees to the wood.

In arriving at this conclusion, Moore-Bick LJ conducted a whistle-stop tour of the post-Payne jurisprudence.  In a sense, the decision of Mostyn J in Re AR  represented the high watermark of the controversy.  Mostyn J said that Payne “placed heavy, arguably decisive, emphasis on the impact on the primary carer of a refusal of leave” with the result that there was a tendency towards almost invariable success of the application, save in cases where it was demonstrably irrational, absurd or malevolent. This interpretation was mainstream, but represented a continuing misunderstanding of the decision in Payne, as was hinted at by the judgment of Wall LJ in Re W , to which Moore-Bick LJ approvingly referred several times, when he warned against endorsing a “parody of the decision”.  He also said that “when detailed guidance has been given by this court one can understand that a busy judge may be tempted simply to apply it without detailed enquiry, but it is an unduly mechanistic application of the guidance given in Payne that lies behind the current concern” .  As for Re Y, his view was that Hedley J was right to remind himself that the welfare of the child “overbears all other considerations, however powerful and reasonable they may be” and that, to this extent, Re Y and Payne were complementary.

The clear and succinct analysis by Moore-Bick LJ of Payne was supported by Black LJ, who agreed that the only authentic legal principle is that the welfare of the child is the court’s paramount consideration.

It is submitted that the judgments of Moore-Bick and Black LLJ are to be preferred, since they throw aside the controversy which has for years concealed the true relevance of Payne and open the way for any father faced with the loss of his child to have his case heard on its own individual merits.  Practitioners should not fear Payne, since it is now clear that its guidance is not binding and that, in the final analysis, all that really matters is the welfare of the child, however that might be interpreted in the facts of each individual case.