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K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134, CA Thorpe, Moore-Bick, Black LJJ, 7.7.11
Para 40 of Payne
Approach which should be adopted if the primary carer’s proposals seem reasonable to avoid them being elevated into a legal presumption & to ensure they are compatible with the welfare of the child:
Begin by asking:
* is the mother’s motivation genuine & not inspired by a desire to exclude the father from the child’s life?
* is the mother’s application realistic, practical, well-researched & investigated?
If not the application is likely to fail.
If yes then the court should go on to consider:
* what would be the impact on the mother of refusal either as a single parent or a new wife?
* what is the effect of considering whether the mother’s proposals are well thought through and the impact on her of refusing on the welfare of the child?
Thorpe’s comment was: in any evaluation of the welfare of the child as the primary consideration great weight has to be given to the importance of the emotional & psychological well-being of the primary carer.
In K Thorpe LJ said that if there is no primary carer and the parents are sharing the care in more or less equal proportions the reasoning above is not applicable and the court should simply apply the criteria in the s 1 welfare checklist.
However, he also 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 weighted in seach of the welfare paramountcy.”
Black LJ supported by Moore-Bick LJ disagreed with him that it was necessary to set Payne completely to one side.
She reminds herself that the ratio in Payne was always that the welfare of the child is the paramount consideration.
The other questions and guidance suggested in Payne nonetheless provide a useful thought process and discipline to be used as a tool in getting to a view on where the best interests of the child might lie.
“Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. I do not see Hedley J’s decision in Re Y as representative of a different line of authority from Payne, applicable where the child’s care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case.”
“Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the case “a Payne case” or a “RE Y case”, nor would I expect preliminary skirmishes over the label to be applied to the child’s arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application. The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered.”
