MK v CK

In an application for permission to remove children permanently from the jurisdiction, the child’s welfare is paramount. The guidance in Payne v Payne is valuable but is not a presumption or a rigid rule which dictates the result. A court must evaluate all material welfare factors, including the practical care arrangements, the effect on each parent, and the child’s relationship with the parent left behind.

A welfare judgment must show that the competing advantages and disadvantages have been weighed. A judge who rejects a clear CAFCASS recommendation must give adequate reasons. The formal label of a shared-residence arrangement is less important than the reality of the parents’ respective care.

The mother applied for permission to relocate permanently to Canada with the parties’ two young daughters after the breakdown of the marriage. The parents had a shared-residence order. Although the children spent more nights with the mother, the father provided substantial day-to-day care and had six consecutive days with them in each fortnight.

A CAFCASS officer recommended refusal for the time being, principally because of the children’s close relationship with their father. Her Honour Judge Bevington granted the mother permission to relocate. The father appealed, contending that the judge had misapplied the relocation authorities, failed adequately to address the CAFCASS recommendation, and failed to balance the case against removal.

The central issue was how welfare-based relocation guidance should be used where care is substantially shared and the proposed move would substantially reduce the children’s relationship with one parent.

Decision

1. Permission to appeal was granted and the appeal allowed. The order permitting the mother to relocate with the children to Canada was set aside. A fresh welfare determination was required because the dispute depended critically on oral evidence and assessment of the witnesses.

2. The court held that the only binding legal principle derived from Payne v Payne [2001] EWCA Civ 166 is that the child’s welfare is paramount. Its further observations are useful guidance, not presumptions or fixed rules. They must be applied flexibly, with proper regard to the facts of the individual case and to Children Act 1989 welfare considerations.

3. The judge below had applied the guidance mechanically and had not shown that she had balanced the advantages of the mother’s proposal against the serious detriments flowing from a substantial reduction in the father’s day-to-day relationship with the children. Her reasons concentrated on the benefits of the move and did not explain why the countervailing factors did not prevail.

4. The CAFCASS officer’s recommendation was a reasoned recommendation to refuse the application at that time, not a recommendation simply to defer the issue. The judge was entitled to reject it, but had to explain clearly and cogently why. Her reasons did not do so.

5. Thorpe LJ considered that, where the parents share care in practice more or less equally, the primary-carer discipline suggested in Payne v Payne should not be used and the statutory welfare checklist should instead be applied directly. Moore-Bick LJ and Black LJ agreed that care arrangements and the weight of the relevant factors must be assessed in their actual context. Black LJ cautioned against treating Payne v Payne and Re Y as separate legal regimes; the guidance remains relevant but cannot dictate the result.

• Court of Appeal (Civil Division): Allowed the father’s appeal and set aside permission for the mother to remove the children permanently to Canada.
• Family Court: Her Honour Judge Bevington had granted the mother’s relocation application after a four-day hearing and refused permission to appeal.