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Court of Appeal rewrites relocation guidance for divorced parents

8 July 2011

The welfare of the child should be “the paramount consideration” for family judges considering applications by divorced parents to relocate abroad, the Court of Appeal held last week.

The ruling by the appeal judges in MK v CK [2011] EWCA Civ 793 set aside earlier interpretations of the Payne v Payne precedent which bound judges to take particular account of the welfare of the main carer but was increasingly seen as out of touch with modern arrangements encouraging shared parenting.

“As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance,” said Lord Justice Moore-Bick. “Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted.”

Moore-Bick LJ said that while such guidance was very valuable, “the circumstances in which these difficult decisions have to be 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. As Hedley J said in Re Y, the welfare of the child overbears all other considerations, however powerful and reasonable they may be. I do not think that the court in Payne v Payne intended to suggest otherwise.”

The Payne v Payne guidance was laid down by Dame Elizabeth Butler-Sloss in paragraph 85 of the eponymous case, where she listed a series of criteria judges should consider when dealing with relocation applications.

Lord Justice Thorpe – who was sitting in Payne – said: “The only principle to be extracted from Payne v Payne is the paramountcy principle. All the rest, whether in paragraphs 40 and 41 of my judgment or in paragraphs 85 and 86 of the president’s judgment is guidance as to factors to be weighed in search of the welfare paramountcy.

“The guidance in Payne is posited on the premise that the applicant is the primary carer,” he said, before adding a few paragraph down: “Once the care is shared there is not the same dependency and the role of each parent may be equally important.”

Allowing the father’s appeal against the court order granting the mother’s application to relocate to Canada with the children, Thorpe LJ said the judge should have given greater weight to the fact that Mr K was providing daily care to the children.

Moore-Bick LJ cited Hedley J’s dicta in Re Y (Leave to Remove from the Jurisdiction), saying the welfare of the child was “the lodestar by which the court at the end of the day is guided”.

Lisa Fabian Lustigman, a solicitor at Withers, who represented the father, said the ruling would “encourage fathers – and mothers who are not main carers – to seek the real shared care arrangements so many want. It will mean a natural desire to work more flexibly and strive for shared care, especially where the couple have international links.”

She said that in many cases the primary carer would be clearly defined but that in the second decade of the 21st century “the courts should no longer be bound at the wrists by parenting arrangements which no longer apply”.

Miles Geffin, legal director at Mishcon de Reya, said it was time the Court of Appeal ruled that “slavish adherence to the guidance in Payne was inappropriate”.

“Payne was taken to promote a matrocentric approach – which led on occasions to placing the mother’s interests above those of the children.” he said. “It will be difficult to regard a situation where the child only spends alternate weekends with the other parent as shared care but where there is genuine shared care it will now be less likely that judges will grant a relocation order.”

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