Family Law

As someone whose life is unduly preoccupied with thinking about relocation law, I find it fascinating that the English courts cannot bring themselves to say, in straightforward terms, what we on the sidelines have known for so long - Payne v Payne has had its day.

For anyone not familiar with Payne, it's a 2001 Court of Appeal decision which places considerable focus on the fact that the applicant was the mother, and that she was the child's primary carer. Looking back over the earlier authorities, those facts were almost always true, and so it is perhaps unsurprising that the court's guidance about how to approach such cases in the future took this as being inevitable.

In the 15 years since the case was decided, much has changed, and the reality is that there is a far greater range of post-separation care arrangements on the ground now than there was whenPayne was decided. Consequently, when thinking about a question as important as whether a child should be taken to live in another country or not, the relevant considerations are now also more varied, and - crucially - the guidance stemming from Payne may or may not be especially helpful.

The Court of Appeal said as much in the 2011 decision of K v K, but the majority judges (Black and Moore-Bick LJJ) were clearly of the view that the answer did not involve abandoning Payne. On the contrary, Black LJ stressed that Payne remained helpful, but that judges were required to use it as general guidance, not as a straitjacket - the weight given to its various factors would be varied depending on the facts of the particular case being decided.

I have long been sceptical of this approach. In an article published last autumn, Edward Devereux and I suggested that it was unrealistic to expect judges to make these kinds of adjustments on a case-by-case basis, when the guidance that they were being asked to adjust started from such a one-sided position.

And so it has come to pass. The latest Court of Appeal decision on international relocation - Re F (International Relocation Cases) [2015] EWCA Civ 882 - overturns an experienced Circuit Judge's decision because she focused too much on the Payne criteria and not enough on an overall assessment of welfare. Well, don't say you weren't warned.

In its latest comments on Payne, the Court of Appeal has reached new extremes of contortion. We are told that: 'it would seem odd indeed for this court to use guidance which, out of the context which was intended, is redolent with gender based assumptions as to the role and relationships of parents with a child' (para [18]). We are told that the questions asked by Payne 'may or may not be relevant' (para [18]). We are told that '[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law' (para [27]). Payne is also criticised for its lack of focus on the child's views about the decision or, putting it more broadly, its lack of consideration of how the child should participate (paras [18] and [40]). It is also impliedly criticised for its focus only on the proposals of the parent seeking to relocate, since in Re F the court emphasises the need to look holistically at the available options from a welfare perspective, and not to approach the options in a linear manner.

So all around, this seems to me to lead to the obvious conclusion that Payne is no longer a useful authority. So why won't they just say so? Let's put poor Payne out of its misery and start again with some sensible guidance which can be applied to all relocation cases without confusing hard-pressed trial judges and requiring unnecessary appeals.

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Rob George’s column Last Orders: the View from the Bar is a regular monthly feature in Family Law. In the August issue Rob gives the new Divorce Centres – and much else – his individual treatment. And there will be more on Re F in the September issue. Don’t miss it.

This article was originally published on the Legal Liberal blog and has been reproduced here with kind permission.