Lehna Hewitt, Trainee Solicitor
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On 7 July 2011, the Court of Appeal handed down judgment in Re K (Children) [2011] EWCA Civ 793. What followed was the most fundamental decision on leave to remove since Payne v Payne [2001] EWCA Civ 166, and the case has been heralded as the end of Payne hegemony. Where there is a shared care arrangement, the applicant will now find it much harder to persuade a judge to grant permission to relocate abroad. The article will summarise the most significant statements of law made in Re K.
The facts of Re K
The mother was Canadian and the father was Polish. They had met in Toronto in 1992, and later settled in England. They married and went on to have two children, aged 4 years and 18 months. They separated in 2010, but arrangements for the children remained amicable. In August 2010, a shared residence order was made which provided for the father to care for the children for five nights per fortnight, with the mother caring for them the remaining nine nights. The mother had the assistance of a nanny when the children were with her and the father did not. The time the children spent with each parent was therefore held to be broadly equal.
The mother sought permission to relocate to Canada with the children. She emphasised her feelings of loneliness in England and her desire to be near her family. The father strongly opposed the application on the basis that he would lose his relationship with his children.
The CAFCASS report concluded that although this was a “fine and difficult balance”, the application should be refused.
Her Honour Judge Bevington granted the mother leave to remove. She followed the guidance in Payne and found that the mother’s proposals were reasonable, and that a refusal would increase the mother’s isolation and depression.
The Appeal
The father appealed and the case was heard in the Court of Appeal by Thorpe LJ, Moore-Bick LJ and Black LJ.
The father submitted that the decision was flawed for the following reasons:
- The judge rejected the recommendations of the CAFCASS officer without proper analysis or explanation;
- The judge directed herself by reference to guidance for applications by primary carers (Payne) rather than guidance in applications by a parent with a shared care arrangement (Re Y); and
- The judge only referred to the mother’s case and did not remedy this defect even when it was raised by the father’s counsel.
The Appeal was allowed. Points 1 and 3 were accepted by all three judges, and they did not dwell upon these. Point 2 was not accepted by Black LJ, and required consideration of the relevant precedents (namely Payne and Re Y).
All three judges agreed that the only principle to be extracted from Payne is that the welfare of the child is paramount; the rest is guidance. The court should apply the statutory checklist and determine what is in the best interests of each child in each individual case. However, there was some divergence in the judges’ reasoning.
Thorpe LJ and Moore-Bick LJ’s approach
Thorpe LJ and Moore-Bick LJ referred to Re Y, where Hedley J distinguished between relocation cases where the child lives with one parent, and those where there is a shared care arrangement. They said that Payne should not be applied in cases involving shared care, and the judge should have used the Re Y approach in this approach.
Black LJ’s approach
Black LJ reached the same conclusion, but used a different approach. She stated that Re Y and Payne were not different lines of authority, and that she “would not put Payne so completely to one side” in cases of shared care. She was concerned that cases should not get bogged down with arguments over whether a situation is a Payne or Re Y case.
Conclusions
There is no doubt that Re K is a very significant development in the area of leave to remove cases. However, in some respects it has muddied the law even further.
In cases where there is a shared care arrangement, it seems that Payne should now give way to a consideration of the welfare of the child, and the welfare checklist should not be subverted. However, Payne appears to remain the leading authority in cases where the applicant is the primary carer. Although Black LJ was of the opinion that cases should not categorised as either Payne or Re Y, it is perhaps inevitable that parents will try and argue that their case should be deemed one or the other in view of the other judges’ statements.
Payne can no longer be deemed a comprehensive authority on how the court will exercise its discretion in all relocation cases, and a broad view needs to be taken by the court. In the words of Black LJ, “all of the facts need to be considered”.
Many practitioners will be disappointed that their Lordships did not go far enough in Re K, and will be hoping that another division of the Court of Appeal, or perhaps even the Supreme Court, will soon have the opportunity to tie up the loose ends and offer some real clarity.
Lehna Hewitt is a Trainee Solicitor in Anthony Gold's family & divorce law department. For further information email Lehna or call 020 7940 4000.
