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Court of Appeal, Pill, Toulson, Munby LJJ
Relocation - Spanish family moved to UK with son - Mother returned to Spain and granted permission to relocate - Appeal - Whether the judge had incorrectly applied the Payne guidelines
24 October 2012
The Spanish parents relocated to the UK with their son, who was now 7 years old, due to the father obtaining an employment contract. Two years later the contract was extended but by this time the parents' relationship was breaking down. They travelled to Spain for a holiday but upon their return to the UK the mother stayed only a few days before going back to Spain. She left the child with the father in the belief that it would be for a short period. However, the child had since remained with the father. The father issued an application for a residence order and the mother made a similar application in Spain. Both sets of proceedings were stayed once the mother issued Hague proceedings in the High Court. The High Court judge concluded that that at the material date the child was habitually resident in the UK, not Spain and, therefore, refused to make an order for return. Thereafter the parents sought a shared residence order which was granted along with the mother's application to relocate to Spain. The father was ordered staying contact in the UK. The judge described the decision as one that was very well balanced; that the child would be afforded advantages both if he stayed in the UK and if he returned to Spain; and that both parents although they would be immensely distressed if either one were to lose primary care of the child they would not collapse. The child's views were similarly balanced but the judge found that he would be returned to a tried and tested care regime that was familiar to him and due to the parents' work commitments it would be marginally easier for the mother to be able to make the child available for more generous contact with the father. The father appealed on the basis of the judge's application of the principles of Payne v Payne and K v K.
Held - dismissing the appeal -
(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 section 1(3) (see paras , ).
(2) There had been no error of law. The judge, in his reasoning, had asked himself if this had been a case to which Payne v Payne applied. He then proceeded to take into account the guidelines from that case. Having considered the discipline outlined by Thorpe LJ he then turned to an investigation and evaluation of the child's best interests having regard to the welfare checklist and came to his overall conclusion (see para ).
(3) Although this was not a case where the application was being made by the primary carer, the judge was entitled to have regard to Thorpe LJ's ‘discipline' as set out in Payne. He correctly appreciated that the case had to be decided by reference to the child's best interests. And, at the end of the day, that is precisely what he did (see para ).
(4) The judge carefully took into account the child's current circumstances in this country, the quality of his father's care of him and the father's own plans, wishes and feelings. There was nothing which begins to suggest that he started off with any presumption in favour of the mother's claim. He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo. He gave appropriate weight to both points, whilst correctly appreciating that neither could be decisive. There was no sustainable basis for any complaint that the judge either took into account irrelevant factors or failed to take into account any relevant factors. Nor was there any sustainable basis for a complaint that he erred either in the weight he chose to attach to the various factors he had to take into account or in his evaluative decision as to where the ultimate balance fell. That being so there was no proper basis upon which the Court of Appeal could intervene (see para ).
(5) The present case was a good example of what could happen if appropriate heed was not paid to the warning given by Black LJ in K v K. In the event the judge did not fall into the error of getting bogged down with arguments about whether the time spent with each parent made it a particular type of case. However, the prominence given in his judgment to ‘the Payne guidelines', no doubt reflecting the prominence they had been given in the course of argument before him, led to the father being given the permission to appeal which otherwise, it may be, would have been refused (see para ).
(6) Adopting conventional terminology, this was neither a ‘primary carer' nor a ‘shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. However, the last thing that this very difficult area of family law required was a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction was to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case was a ‘Payne type case', or a ‘K v K type case' or a ‘Re Y type case', when in truth it may be none of them, was simply a recipe for unnecessary and inappropriate forensic dispute or worse and was to be avoided (see para ).
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