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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MK v CK [2011] EWCA Civ 793 (07 July 2011) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2011/793.html Cite as: [2012] 2 FLR 880, [2011] EWCA Civ 793, [2012] Fam 134, [2011] 3 FCR 111, [2012] 2 WLR 941, [2011] Fam Law 1078 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Her Honour Judge Bevington
FD10P01682
Strand, London, WC2A 2LL |
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B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE MOORE-BICK
and
THE RIGHT HONOURABLE LADY JUSTICE BLACK
____________________
MK |
Appellant |
|
- and - |
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CK |
Respondent |
____________________
Timothy Scott QC and Indira Ramsahoye (instructed by SA Law LLP) for the Respondent
Hearing date: Wednesday 18th May 2011
____________________
Crown Copyright ©
Lord Justice Thorpe:
Introduction
"I do not know if you would like to say anything about that now, just to cover those matters?"
"Yes, of course. I think I have said I have taken everything into account that has been placed in front of me. Of course that includes the impact upon the father himself as a person because, as I have said, I know he is devoted to these two little girls. Of course, it is natural, when a relocation case is allowed, that there is likely to be some alteration or diminution of the physical contact between the children and the parent who is remaining in this country. Of course, I take that into consideration. It seems to me that hopefully, as I said, the father will, with the flexibility which he may be able to arrange, be able to visit the children very much more frequently than they would be able to visit England were they in Canada. That is because, of course, the school terms which are rather differently configured from those in England. It would make visits for the shorter holidays very difficult for the children. But, I see no reason at all why the father should not be able to visit the children frequently and regularly, including of course the short holidays that the children have – possibly half-terms and possibly at other times as well. Of course, I take that into consideration. I am sorry if it did not appear to be said in my judgment. But, of course I have."
"Your Honour, I ought to cover formally the question of permission to appeal because your Honour is not regularly here – in case. We are obviously going to have to consider the father's position and give him careful advice about that. But, would your Honour just formally cover that?"
Family background
The Trial
"It would be essential for the mother to feel supported as a parent and an adult in her own right in England and, I feel, for some acceptance by the father that should she still wish to return to Canada in 3-4 years time, all being equal, this is likely to be in the best interests of the children."
The judgment below and the submissions on appeal.
i) The judge rejected the recommendations of the CAFCASS officer without proper analysis and explanation.
ii) She directed herself by reference to the guidance offered by Dame Elizabeth Butler-Sloss P. at paragraph 85 (guidance apt for applications by primary carers) rather than by reference to the decision of Hedley J in Re Y [2004] 2 FLR 330 (the only authority then available directly considering a relocation application by a care sharer).
iii) In explaining her conclusion she referred only to the case that the mother presented. Even when that deficit was raised by Ms Bazley, she had not remedied the defect.
"I have reminded myself of the line of authorities on the issue of relocation and, indeed, of orders for joint residence. The seminal authority on relocation is the case of Payne v. Payne, decided in 2001, in which the old authorities of Poel v. Poel [1970] and A. v. A. [1980], amongst others, were considered. There has been a long line of court decisions on this point. I am most grateful to counsel for refreshing my memory of some of the more recent authorities: Re. W [2008], Re. L (shared residence) [2009], and J v. S [2010]."
"In Payne, however, Dame Elizabeth Butler-Sloss…set out and distilled for us the principles which the court should follow in applications such as the present."
There then followed paragraphs (a) to (g) extracted from paragraph 85 of the judgment.
"31. Taking the guidance to which I have already alluded, set out in Payne, I am satisfied that the proposals of the mother are reasonable. Toronto, like London, has a lot to offer those who live there or visit. The mother's family have been, I am sure, a great support to her. She wants to continue to have that support to an even greater degree now that she and the father have separated. Her present relationship with him is obviously of a different order to the days when they were happily married. Unfortunately, as I have said, her relationship with the father's parents and sister seems to have cooled over recent months. Now that the couple's difficulties have been aired in court it may be that the father's family will be even less well disposed towards the mother. She is unlikely to gain a great deal of support from them following this case, leading, I anticipate, to her greater feeling of isolation.
32. I am satisfied from all that I have heard that the mother has a genuine motivation for a move to Canada. It is not, in my judgment, her intention to bring contact between the children and their father to an end. Although, as it has been suggested by the father, the mother would be able – and he would create a £10,000 fund – to travel frequently to Toronto, it seems to me that that fund could be earmarked for him to travel as often as his work permits to visit his daughters. He would not, of course, be confined to visiting them during school holidays and short visits would, I believe, be possible and less expensive for him as a single traveller. Flights between London and Toronto are frequent and regular. If I and A are at school in Toronto I do not envisage that contact need be denied. The father could visit them as frequently as he is able, and if his contact were during school term or at half-term, he would be able to visit their school and even attend some school functions.
33. Importantly, I have to consider the effect on the mother and, consequently, upon the children of a refusal of her application. In my judgment she would feel increasingly isolated and depressed, which would be damaging for the children. I have read the wife's petition and it is clear to me that were she to fail in her application the father's family might not be fully supportive of the mother. She has had some difficulties with her in laws already, as I have said, and this seems to be accepted by the father and his sister. I cannot envisage an improvement in the near future. If the mother were required to remain in London where I am satisfied she has not been happy in recent times, her distress is highly likely to increase with consequential impact upon the girls' welfare.
34. I have looked at the mother's proposals with great care. They are reasonable in my judgment and the children's welfare will be secured by having their mother within a supportive family environment.
35. It follows from what I have said that I will grant the mother's application to relocate to Toronto with the children."
The Law
"In my judgment, therefore, it is wrong in principle to apply different criteria to the question of internal relocation simply because there is a shared residence order."
"[14] Now, the court clearly contemplates two different states of affairs. The one, the more common and in some ways the more obvious, is where the child is clearly living with one parent, and it is that parent that wishes to leave the jurisdiction, for whatever reason. The other, and much less common state of affairs, is where that does not exist and either there is a real issue about where the child should live, or there is in place an arrangement which demonstrates that the child's home is equally with both parents. In those circumstances, which are the ones that apply in this case, many of the factors to which the court drew attention in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052 whilst relevant may carry less weight than otherwise they commonly do.
[15] The father does not have an application for a residence order in this case, but it was raised only in response to the mother's application for permission to remove, and the father's actual proposal is for a continuation of the present position.
[16] This case accordingly falls outside the main run of cases that one encounters where this problem is raised, and certainly within my own experience is unique. What it seems to me I must do is to remind myself of the opening provisions of the Children Act 1989. Section 1(1) says that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration, and in considering these issues I have to take a number of matters into account as required by s 1(3). It seems to me that of those matters, the ones that are important in this case are the educational and emotional needs of Y, the likely effect on him of any change in his circumstances, and his age and background so far as his life is presently concerned. It seems to me that I need to remind myself that the welfare of this child is the lodestar by which the court at the end of the day is guided."
Conclusion
Lord Justice Moore-Bick:
"It seems to me that in approaching this very finely balanced problem — which involves a difficult and a sad decision — the court should have regard primarily to the welfare of the child. Just as in disputed custody cases, so in a case which substantially is concerned with the subsequent issues resulting from the making of a custody order, the welfare of the child is the primary consideration which should weigh with the court. Further, it is to be regarded, I think, as a very dominant factor in such a dispute that there has been an order (which in fact was not resisted) for custody in favour of the one parent, in this case the mother, and that there is every indication that the custody thus ordered has been working satisfactorily in every respect; and that although, naturally, the other parent will feel — and this father does feel — that the access permitted to him is not all that he would wish, in no other respect is it suggested in the slightest degree that the custody arrangements have been anything but entirely beneficial to the child and satisfactory in general to the parties concerned.
. . .
. . . It is a grave thing that the boy will be deprived of the advantage, which he would have had if he had been brought up in close contact with his natural father, of having the advice of his father from time to time, and, in case of need, of falling back upon him for protection and care. But, save in emergency, there is no reason to fear that the arrangements which are being made for his protection, support and upbringing are in any respect to be regarded as inadequate properly to serve the protection of his welfare, physical or mental."
"When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results."
"If a step-father, for the purposes of his career, is required to live elsewhere the natural thing would be that he will wish to take his family, which now includes his step-children, with him, and if the court refuses to allow him to take the step-children with him he is faced with the alternative of going and leaving the family behind which is a very disruptive state of affairs and likely to be very damaging to those step-children, or alternatively he may have to throw up his career prospects and remain in this country. If he has to do that he would be less than human if he did not feel a sense of frustration and, do what he may, that may well spill over into a sense of resentment against the step-children who have so interfered with his future career prospects. If that happens it must reflect upon the happiness and possibly even the stability of this second marriage."
"As in every case in which the court has to exercise its discretion, the reasonableness of the proposals, the effect upon the applicant and upon the child of refusal of the application, the effect of a reduction or cessation of contact with the other parent upon the child, the effect of removal of the child from his/her current environment are all factors, among others which I have not enumerated, which have to be given appropriate weight in each individual case and weighed in the balance."
"85. In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.
(a) The welfare of the child is always paramount.
(b) There is no presumption created by section 13(1)(b) of the Children Act 1989 in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.
86. All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance. But in a case where the decision as to residence is clear, as the judge in this case clearly thought it was, the plans for removal from the jurisdiction would not be likely to be significant in the decision over residence. The mother in this case already had a residence order and the judge's decision on residence was not an issue before this court."
"In this court we are well aware of the criticisms made, both domestically and internationally, of its decision in Payne. Nevertheless one must beware of endorsing a parody of the decision. Both Thorpe LJ, at [26(a)], and the President, Dame Elizabeth Butler-Sloss, at [85(a)], stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration. It is only against the subsidiary guidance to be collected from Payne that criticisms can perhaps more easily be levelled."
"Mr Scott-Manderson [counsel for the respondent father] properly and appropriately accepted in submissions that this court is bound by the Court of Appeal decision in Payne. I have, therefore, to decide this case on the basis of the Payne discipline regardless of whatever a growing tide of opinion may or may not say about that approach. What Mr Scott-Manderson says is that, at the end of the day, Payne says one thing namely that the welfare of these two children is paramount. I agree. This court, he submits, must be careful not to allow itself to become confined in a strait-jacket, with the series of questions presenting the only test. Care, he says, must be taken to ensure that the question of the impact of refusal of the mother is but one component of an assessment of the best interests of the boys and not the only feature. I unhesitatingly agree."
Lady Justice Black:
"It seems to me that in approaching this very finely balanced problem — which involves a difficult and a sad decision — the court should have regard primarily to the welfare of the child. Just as in disputed custody cases, so in a case which substantially is concerned with the subsequent issues resulting from the making of a custody order, the welfare of the child is the primary consideration which should weigh with the court. Further, it is to be regarded, I think, as a very dominant factor in such a dispute that there has been an order (which in fact was not resisted) for custody in favour of the one parent, in this case the mother, and that there is every indication that the custody thus ordered has been working satisfactorily in every respect; and that although, naturally, the other parent will feel — and this father does feel — that the access permitted to him is not all that he would wish, in no other respect is it suggested in the slightest degree that the custody arrangements have been anything but entirely beneficial to the child and satisfactory in general to the parties concerned."
"It is a grave thing that the boy will be deprived of the advantage, which he would have had if he had been brought up in close contact with his natural father, of having the advice of his father from time to time, and, in case of need, of falling back upon him for protection and care. But, save in emergency, there is no reason to fear that the arrangements which are being made for his protection, support and upbringing are in any respect to be regarded as inadequate properly to serve the protection of his welfare, physical or mental. The natural father can offer a perfectly good home, and so far as his relations with the boy are concerned he is not in the very slightest degree to be blamed: his conduct as a father has been impeccable. There is no reason to suppose that he is not very affectionate and responsible and fit to bring up the boy."
"I am very firmly of opinion that the child's happiness is directly dependent not only upon the health and happiness of his own mother but upon her freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with her new husband and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take this boy to New Zealand which I think quite clearly his welfare dictates."
"When a marriage breaks up, a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as my Lord has pointed out, produce considerable strains which would not only be unfair to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results." [my italics]
"I emphasise once more that when one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody."
"I do not think that that is a reasonable proposition or one which is likely to result in the future happiness or success of this little boy. The mother's difficulties on her own in this country seem to me to be so great as to make the proposal virtually unpractical."
"It is always difficult in these cases when marriages break up where a wife who, as this one is, is very isolated in this country feels the need to return to her own family and her own country; and, although Mr Swift has argued persuasively for the test which was suggested in the case of Poel v Poel [1970] 1 WLR 1469, the test which is often put on the basis of whether it is reasonable for the mother to return to her own country with the child, I myself doubt whether it provides a satisfactory answer to this question. The fundamental question is what is in the best interest of the child; and once it has been decided with so young a child as this that there really is no option so far as care and control are concerned, then one has to look realistically at the mother's position and ask oneself the question: where is she going to have the best chance of bringing up this child reasonably well? To that question the only possible answer in this case is Hong Kong. It is true that it means cutting the child off to a large extent – almost wholly perhaps – from the father; but that is one of the risks which have to be run in cases of this kind. If it is wholly unreasonable, as I think it is in this case, to require the mother to remain in England, assuming even the court ought to put her in the position of choosing between staying very unhappily and uncomfortably in England and going home to her own country, then I still think the answer is that where she can best bring up this child is the proper solution to this case."
"I think the judge read that passage as bringing into the balancing exercise the interests and welfare of the parent and the new spouse as such. He seems to have thought that the court was there weighing up the interests of the children on the one hand, and the interests of the custodial parent on the other. I do not read it in that sense at all. What Sachs LJ was saying, I think, is that if the court interferes with the way of life which the custodial parent is proposing to adopt so that he or she and the new spouse are compelled to adopt a manner of life which they do not want, and reasonably do not want, the likelihood is that the frustrations and bitterness which would result from such an interference with any adult whose career is at stake would be bound to overflow on to children. It would be bound to prejudice the relationship between the step-father in this case and the children, whom he must see as a drag on him (to put it no higher). It is that factor which is so important which has to be brought into account when the balancing exercise is done."
and later on that page:
"In the present type of case I believe that the true balancing exercise must take into account the effect on the children of seriously interfering with the life of the custodial parent."
"The question therefore in each case is, is the proposed move a reasonable one from the point of view of the adults involved? If the answer is yes, then leave should only be refused if it is clearly shown beyond any doubt that the interests of the children and the interests of the custodial parent are incompatible. One might postulate a situation where a boy or girl is well settled in a boarding school, or something of that kind, and it could be said to be very disadvantageous to upset the situation and move the child into a very different educational system. I merely take that as an example. Short of something like that, the court in principle should not interfere with the reasonable decision of the custodial parent."
and he then went on to say (at page 443):
"The reason why the court should not interfere with the reasonable decision of the custodial parent, assuming, as this case does, that the custodial parent is still going to be responsible for the children, is, as I have said, the almost inevitable bitterness which such an interference by the court is likely to produce. Consequently, in ordinary sensible human terms the court should not do something which is, prima facie, unreasonable unless there is some compelling reason to the contrary. That I believe to be the correct approach."
"it may well be that Sachs LJ did not have that speech in the forefront of his mind as we all have. If he had I think he might perhaps have expressed his view slightly differently, making it specifically clear that his judgment was based on the interests of the children which was the paramount consideration."
"So far as the law is concerned, the first point is that the welfare of the children is the paramount consideration. The second point, as I see it, is that no two cases are precisely the same on their facts, and decisions on other facts in other cases provide really guide-lines [sic] for the exercise by the court of its discretion in the particular case."
"….to avoid any misunderstanding, by 'balancing exercise' I do not mean balancing the interests of the natural father against those of the mother, or the interests of the mother and the step-father against the children, but the balancing exercise as to what was in the best interests of the children. I prefer that way of putting it to asking the question whether the interests of the children were incompatible with the interests of the custodial family."
"26. In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children."
"reduced to its fundamentals the court's approach is and always has been to apply child welfare as the paramount consideration. The court's focus upon supporting the reasonable proposal of the primary carer is seen as no more than an important factor in the assessment of welfare."
"The value of the guidance
27. Few guidelines for the determination of individual cases, the facts of which are never replicated, have stood so long in our family law. Where guidelines can be formulated there are obvious benefits. The opportunity for practitioners to give clear and confident advice as to outcome helps to limit the volume of contested litigation. Of the cases that do proceed to a hearing, clear guidance from this court simplifies the task of the trial judge and helps to limit the volume of appeals. The opportunity for this court to give guidance capable of general application is plainly circumscribed by the obvious consideration that any exercise of discretion is fact dependent and no two cases are identical. But in relocation cases there are a number of factors that are sufficiently commonplace to enhance the utility of guidelines. I instance: (a) the applicant is invariably the mother and the primary carer; (b) generally the motivation for the move arises out of her remarriage or her urge to return home; and (c) the father's opposition is commonly founded on a resultant reduction in contact and influence.
28. Furthermore guidance of this sort is significant in the wider field of international family law. There is a clear interaction between the approach of courts in abduction cases and in relocation cases. If individual jurisdictions adopt a chauvinistic approach to applications to relocate then there is a risk that the parent affected will resort to flight. Conversely recognition of the respect due to the primary carer's reasonable proposals for relocation encourages applications in place of unilateral removal. Equally, as this case demonstrates, a return following a wrongful retention allows a careful appraisal of welfare considerations on a subsequent application to relocate. Accordingly it is very desirable that there should be conformity within the international community….."
"30. ……..[i]n a broad sense the health and wellbeing of a child depends upon emotional and psychological stability and security. Both security and stability come from the child's emotional and psychological dependency upon the primary carer. The extent of that dependency will depend upon many factors including its duration and the extent to which it is tempered by or shared with other dependencies. For instance is the absent parent an important figure in the child's life? What is the child's relationship with siblings and/or grandparents and/or a step-parent? In most relocation cases the judge will need to make some evaluation of these factors."
"31.Logically and as a matter of experience the child cannot draw emotional and psychological security and stability from the dependency unless the primary carer herself is emotionally and psychologically stable and secure. The parent cannot give what she herself lacks…. The disintegration of a family unit is invariably emotionally and psychologically turbulent. The mother who emerges with the responsibility of making the home for the children may recover her sense of wellbeing simply by coping over a passage of time. But often the mother may be in need of external support, whether financial, emotional or social. Such support may be provided by a new partner who becomes stepfather to the child. The creation of a new family obviously draws the child into its quest for material and other fulfilment. Such cases have given rise to the strongest statements of the guidelines. Alternatively the disintegration of the family unit may leave the mother in a society to which she was carried by the impetus of family life before its failure. Commonly in that event she may feel isolated and driven to seek the support she lacks by returning to her homeland, her family and her friends. In the remarriage cases the motivation for relocation may well be to meet the stepfather's career needs or opportunities. In those cases refusal is likely to destabilise the new family emotionally as well as to penalise it financially. In the case of the isolated mother, to deny her the support of her family and a return to her roots may have an even greater psychological detriment and she may have no one who might share her distress or alleviate her depression…..
32. Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability."
"40. However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent's rights not only under Art 8 but also his rights under Art 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother's proposals are necessarily compatible with the child's welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother's application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child's life? Then ask is the mother's application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father's opposition: is it motivated by genuine concern for the future of the child's welfare or is it driven by some 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?
(c)What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d)The outcome of the second and third appraisals must then be brought into an overriding review of the child's welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
41. In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor."
"……..I do not, for my part, consider that the Convention has affected the principles the courts should apply in dealing with these difficult issues. Its implementation into English law does however give us the opportunity to take another look at the way the principles have been expressed in the past and whether there should now be a reformulation of do so, since they may have been expressed from time to time in too rigid terms. The judgment of Thorpe J in MH v GP (Child: Emigration) [1995] 2 FLR 106 was the first time to my knowledge that the word 'presumption' had been used in the reported cases, and I would respectfully suggest that it over-emphasised one element of the approach in the earlier cases. I can understand why the word was used, since in Tyler v Tyler [1989] 2 FLR 158 the reformulation by Purchas LJ of the principles in Poel v Poel [1970] 1 WLR 1469 and Chamberlain v de la Mare (1983) 4 FLR 434 may itself have been expressed unduly firmly. "
"If the arrangements are sensible and the proposals are genuinely important to the applicant parent and the effect of refusal of the application would be seriously adverse to the new family, e.g. mother and child, or the mother, stepfather and child, then this would be, as Griffiths LJ said, a factor that had to be given great weight when weighing up the various factors in the balancing exercise."
"84. The strength of the relationship with the other parent, usually the father, and the paternal family will be a highly relevant factor, see MH v GP (Child: Emigration) [1995] 2 FLR 106. The ability of the other parent to continue contact with the child and the financial implications need to be explored. There may well be other relevant factors to weigh in the balance, such as, with the elder child, his/her views, the importance of schooling or other ties to the current home area. The state of health of the child and availability of specialist medical expertise or other special needs may be another factor. There are, of course, many other factors which may arise in an individual case. I stress that there is no presumption in favour of the applicant, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continue to be a factor of great weight. As in every case in which the court has to exercise its discretion, the reasonableness of the proposals, the effect upon the applicant and upon the child of refusal of the application, the effect of a reduction or cessation of contact with the other parent upon the child, the effect of removal of the child from his/her current environment are all factors, among others which I have not enumerated, which have to be given appropriate weight in each individual case and weighed in the balance. The decision is always a difficult one and has not become less so over the last 30 years. "
"Summary
85. In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them:
(a) The welfare of the child is always paramount.
(b) There is no presumption created by s 13(1)(b) in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant."
"In this court we are well aware of the criticisms made, both domestically and internationally, of its decision in Payne. Nevertheless one must beware of endorsing a parody of the decision. Both Thorpe LJ, at [26(a)], and the President, Dame Elizabeth Butler-Sloss, at [85(a)], stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration. It is only against the subsidiary guidance to be collected from Payne that criticisms can perhaps more easily be levelled. I therefore acknowledge the controversy that surrounds the proposition expressed by Thorpe LJ, at [26(b)], that:
'refusing the primary carer's reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.'
Equally, I acknowledge the controversy which surrounds his conclusion, at [32], that:
'Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother's future psychological and emotional stability.'
22. There is also, as most family lawyers know, an attack on the series of questions which, at [40], Thorpe LJ suggested as apt for a judge to put to himself in determining such an application. The charge is that they represent an impermissible gloss on the inquiry into welfare, by reference in particular to the checklist of specified considerations, mandated by s 1(1) and (3) of the Children Act 1989. There is also a significant argument to the effect that, although the case of Payne was determined only nine years ago, it represents the culmination of domestic jurisprudence which had evolved since 1970, ie over a time when (so it is said) the value to the child of a relationship with the non-residential parent was far less well recognised.
"It is not, of course, a numerical question. Each case turns on its own facts, and the weight to be given to various factors will change from case to case."
and in paragraph 109 where he said:
"…..the balancing exercise has to be carried out on the facts of the particular case. For the English Judge at first instance the facts may show a case in which the importance of the continuing relationship with a left behind parent tips the scale against relocation. Such cases do, of course, exist: see, for example, the decision of Mostyn J in Re AR (a child: relocation) [2010] EWHC 1346, to which the father refers."
"All that I am prepared to state at this stage is that the decision falls to be taken on what the court perceives to be in the best interests of the children concerned. Their welfare is our paramount consideration. The court must also apply the criteria and guidance set out in Payne v Payne."
"his mother – even though she is free to go as and where she pleases – will doubtless stay in Wales, but equally doubtless will remain feeling isolated, distressed and frustrated in circumstances where all those feelings may intensify over time, depending on how things work out. And of course all that may have consequences for Y, not only in terms of the quality of care he receives from the mother but in the sense of being exposed to her continued unhappiness, and those are real issues when I have serious regard, as I do, to the emotional welfare of this child."
The judge concluded that the welfare of the child compelled him to refuse the mother's application.
"demonstrates, in a way few cases can, quite how, when everything has been said, done and considered the ultimate test remains the welfare of the child, which in the last analysis overbears all other considerations, however powerful and reasonable they may be."