Payne v Payne

On an application to relocate a child permanently abroad, the child’s welfare is paramount. Section 13(1)(b) of the Children Act 1989 creates no presumption in favour of the parent seeking leave.

The court must scrutinise whether the proposed move is genuine and realistic. It must then assess the other parent’s opposition, the loss or reduction of contact, the effect of refusal on the primary carer, and every other relevant welfare consideration. Great weight may be given to the primary carer’s emotional and psychological stability because it directly affects the child, but that factor does not displace the overall welfare balance.

Articles 6 and 8 of the European Convention on Human Rights do not alter this fundamental approach.

Payne v Payne concerned a four-year-old girl whose mother, a New Zealand citizen and the child’s primary carer, wished to return permanently to New Zealand. The father sought a residence order and opposed relocation because of the consequent reduction in his extensive and successful contact with the child.

His Honour Judge Langan refused the father’s residence application and granted the mother leave to remove the child permanently. The father appealed, challenging the established relocation principles as inconsistent with the Children Act 1989 and Articles 6 and 8 of the European Convention on Human Rights. He also argued that findings made in earlier New Zealand Hague Convention proceedings bound the English court and that the court welfare officer had approached the case incorrectly.

The central issue was whether the established welfare-based approach required reformulation and whether the judge had erred in applying it.

1. Appeal dismissed unanimously. Thorpe LJ and Dame Elizabeth Butler-Sloss P held, with Robert Walker LJ agreeing, that Judge Langan had applied the correct legal approach, conducted a thorough factual inquiry and made a discretionary welfare assessment which disclosed no error of law.

2. The child’s welfare remained the paramount consideration under the Children Act 1989. Section 13(1)(b) created no legal presumption favouring the parent seeking relocation and imposed no corresponding burden of proof on the opposing parent. The principles derived from Poel v Poel [1970] 1 WLR 1469, properly understood, treated the effect of refusing the primary carer’s reasonable plans as an important welfare consideration rather than as a competing adult right.

3. A relocation application should be examined by asking whether the proposal is genuine and realistic. If it is, the court must assess the motivation and substance of the other parent’s opposition, the detriment caused by reduced contact, any countervailing benefit from relationships in the proposed country, and the impact of refusal on the applicant. Those matters must then be brought into an overriding review of the child’s welfare, with reference to the statutory checklist where appropriate.

4. Great weight should ordinarily be given to the likely effect of refusal on the primary carer’s emotional and psychological stability. A child normally depends upon that carer for security and stability. Nevertheless, the child’s relationship with the other parent, the feasibility of continuing contact, relationships with the wider family, schooling, health and existing surroundings may all be important.

5. Articles 6 and 8 of the European Convention on Human Rights did not require abandonment of the established approach. Each member of a separated family had relevant rights, but those rights had to be balanced proportionately while maintaining the paramountcy of the child’s welfare. Elevating the primary carer’s proposals into a legal presumption would risk an insufficient inquiry and unfairness to the other parent.

6. The New Zealand court’s earlier findings in Hague Convention proceedings did not bind the English relocation court by res judicata. The proceedings performed different functions, and the relocation judge had to assess the family’s present circumstances independently.

7. The judge was entitled to find that refusal would have a devastating effect on the mother which could damage the child. Although relocation would reduce the father’s contact, his means and working arrangements permitted substantial visits. The order granting leave therefore stood. Permission to appeal to the House of Lords and a stay were refused; there was no order as to costs.

1. Court of Appeal: In Payne v Payne [2001] EWCA Civ 166, the court unanimously dismissed the father’s appeal. It refused permission to appeal to the House of Lords and refused a stay.

2. Cambridge County Court: On 20 October 2000 His Honour Judge Langan QC refused the father’s application for a residence order and granted the mother leave to remove the child permanently to New Zealand.