PAYNE V PAYNE (2001), EWCA CIV 166, [2001] 1 FLR 1052 (Dame Elizabeth Butler-Sloss P, Thorpe and Robert Walker LJJ)

http://www.bailii.org/ew/cases/EWCA/Civ/2001/166.html

http://www.familylawweek.co.uk/site.aspx?i=ed24

The mother was a New Zealand citizen and applied to remove child from the jurisdiction to live permanently in New Zealand. Mother and child were required to return permanently to the UK following proceedings brought by the father under the Hague convention. Following their return the father had very good staying contact with the child. The father then sought a residence order and opposed the mother’s application for leave to remove the child from the jurisdiction. The mother was granted leave and the father appealed stating that any presumption in favour of the applicant at common law breached the ECHR, incorporated into UK law by HRA.

Held:
1. There was no conflict between domestic case law and the ECHR or the CA 1989.

2. The proposition that refusal of a primary carer’s reasonable proposals for the relocation of the family would impact detrimentally on the welfare of her dependent children did not amount to a presumption in favour of the primary carer. The welfare of the child was always paramount.
3. The court should ask a series of questions in evaluating an application:

(i) is the carer’s application genuine ie not motivated by a desire to exclude the other parent from the child’s life?

(ii) is the application realistic ie founded on practical proposals both well researched and investigated?

(A negative conclusion on (i) & (ii) is likely to result in the application being refused)

(iii) What is the basis of the father’s application? Is it motivated by genuine concern for the future of the child’s welfare or is it driven by an ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(iv) What would be the impact on the carer, either as a single parent or partner in a new relationship, of a refusal of her realistic proposal?

(v) What is the overall impact on the welfare of the child taking into account the above considerations and other relevant criteria from the welfare checklist?

NB The President cited the passage quoted above of Griffiths LJ in Chamberlain v De La Mare with approval.

Thorpe LJ: ’Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal on the mother’s future psychological and emotional stability.’