F (Child)

In a child-relocation case, the child’s welfare is paramount. There is no presumption favouring either a relocating parent or a parent who is currently the primary carer. Guidance from Payne v Payne [2001] EWCA Civ 166, including Thorpe LJ’s four-stage discipline, may assist the welfare assessment. It must not be applied as a rigid rule or allowed to dictate the outcome.

The court must consider all the facts under the welfare checklist in Children Act 1989, section 1(3). Existing care arrangements and the status quo may be important factors, but neither is decisive. Courts and advocates should avoid attaching determinative significance to labels such as a “Payne case”, a “shared care case” or a “primary carer case”.

The parents and their son, P, were Spanish. After the parents separated, P remained in England with the father, who became his primary carer. The mother sought permission to remove P permanently to Spain.

His Honour Judge Marston made a shared residence order but allowed the mother to relocate with P, subject to substantial holiday contact with the father. Earlier Hague Convention proceedings had established that P was habitually resident in England: F v S [2011] EWHC 3139 (Fam).

The father appealed, alleging that the judge had wrongly applied relocation guidance, failed to give sufficient weight to his primary-care role and the status quo, and reached an unsustainable welfare evaluation. The central issue was whether the judge had erred in law or principle in permitting the relocation.

1. Appeal dismissed. Judge Marston made no error of law or principle and his evaluative welfare decision was open to him.

2. The only governing principle in a permanent-relocation application is that the child’s welfare is paramount. The welfare checklist in section 1(3) of the Children Act 1989 directs that assessment. Earlier appellate guidance identifies potentially important considerations and promotes consistency, but must remain guidance rather than a rigid code.

3. A “Payne v Payne case” properly describes a case in which the relocating applicant is the child’s primary carer. The present case was not such a case because the father was the primary carer when the mother applied. Nor was it a shared-care case in the sense considered in Re Y. These classifications did not determine the result.

4. The propositions in Payne v Payne [2001] EWCA Civ 166 concerning the effect of refusing a primary carer’s reasonable plans are context-specific. They create no legal or evidential presumption for either parent. However, Thorpe LJ’s four-stage discipline in paragraph [40] could properly assist a judge even where the applicant is not the primary carer, provided it is used as an aid to, and not a substitute for, the ultimate welfare assessment.

5. Judge Marston had considered the father’s successful care of P, P’s settled life in England, the mother’s proposals, each parent’s capacity, and the likely effects of relocation. He gave appropriate weight to the father’s primary-care role and the status quo, but neither was decisive. The Court of Appeal could not reweigh the evidence merely because the father advanced a different welfare evaluation.

6. In a significant postscript, Munby LJ emphatically endorsed the warning in K v K [2011] EWCA Civ 793 against satellite disputes over whether a case falls within a particular relocation taxonomy. The focus throughout must remain on the child’s best interests.

• Court of Appeal (Civil Division) — dismissed the father’s appeal and upheld the relocation order: [2012] EWCA Civ 1364.

• Portsmouth County Court — His Honour Judge Marston made a shared residence order and granted the mother permission permanently to remove P to Spain.