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England and Wales County Court (Family)
You are here: BAILII >> Databases >> England and Wales County Court (Family) >> A (A Child) (No 2)  EWCC B52 (Fam) (06 February 2014)
Cite as:  EWCC B52 (Fam)
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IN THE MATTER OF [THE CHILDREN ACT 1989]
AND IN THE MATTER OF A (A Child) (No 2)
B e f o r e :
(sitting as a s.9. Deputy High Court Judge)
|- and -
Mr Christopher Wood (instructed by Heald Solicitors) for the Respondent Father
Hearing dates 22- 25 January 2014
Crown Copyright ©
The Legal Framework
(1) There could be no presumptions in a case governed by s 1 of the Children Act 1989. From beginning to end the child's welfare was paramount and the evaluation of where the child's best interests truly lay was to be determined having regard to the 'welfare checklist' in s 1(3).
(2) Cases should not become 'bogged down' with arguments about whether this was 'a Payne case' or a 'Re Y case'. The last thing that this difficult area of family law requires is satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is to be firmly resisted as is the temptation to try to force the facts of a particular case within some forensic straightjacket.
(3) Even where the case is not one made by a primary carer, the judge is entitled to have regard to Thorpe LJ's 'discipline' as set out at paragraph 40 of Payne.
"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 o 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 a 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."
"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 a paramount consideration great weight must be given to this factor."
Conclusion and findings