When ferries were the only means of travelling abroad a national newspaper carried the headline: ‘Fog in Channel; Continent Cut Off’. Travel may be easier today, but there remains a legal obstruction to some parents’ departure from these shores. F (Child)  EWCA Civ 1364 is the Court of Appeal’s latest attempt to clarify the law.
The parties were a Spanish couple with a seven-year-old son. The father’s employer had posted him to the UK for two years. He had liked England enough to extend his posting until 2013. Then, in August 2011, shortly after a holiday in their native land, the parties’ marriage failed. The mother returned to Spain. The child stayed here with his father, who applied to Portsmouth County Court for a residence order. The mother made essentially the same application to a court in Spain, as well as seeking her son’s return under the Hague Convention. Her application under the convention was unsuccessful and the Spanish court stayed her residence application because the English court was first seised. It was left to Portsmouth court to determine the boy’s residence.
Judge Marston decided that the child should live with his mother. She had been her son’s primary carer for most of his life. The child was Spanish, his relatives lived in Spain and his father would return there when his posting ended. On balance, the child’s return to Spain was more likely to promote his welfare than his remaining in England. The father’s appeal was dismissed and, 14 months – and no doubt tens of thousands of pounds – after the case began, the mother was free to take her son home. Neither the decision of the judge at first instance, nor that of the appellate tribunal, is surprising. What may seem surprising is that the Court of Appeal granted the father permission to appeal. It did so on a point of law.
What law should the judge have applied? No prize for answering: section 1 of the Children Act 1989. As every family practitioner knows, that section makes the child’s welfare the court’s ‘paramount consideration’ and requires it to ‘have regard to’ all the circumstances and, in particular, to the checklist of factors in section 1(3) – the so-called ‘welfare checklist’. The judge in F duly applied the checklist. But should he also have followed the Court of Appeal’s guidance in Payne v Payne  EWCA Civ 166?
Lord Justice Thorpe in Payne proposed a ‘discipline’ peculiar to relocation cases. It requires judges to answer five questions. Is the application ‘genuine’? Is it realistic? Is it opposed for good reasons? How would refusal affect the applicant? And what would be best for the child? A genuine and realistic application ‘will be granted’ unless ‘incompatible with the child’s welfare’. In short, Payne appears to create a presumption in favour of an application made in good faith. The link between the presumption and the child’s welfare is the effect on the primary carer of refusing her application. According to Thorpe LJ, the judge should make a finding as to ‘the effect of refusal… on the mother’s future psychological and emotional stability’ and assume that ‘refusing the principal carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally’ on her children.
Judge Marston in F followed Payne. The father appealed on the ground that Payne was relevant only to applications by primary carers; the mother had been the primary carer but was no longer. The Court of Appeal, while emphasising that ‘there can be no presumptions in a case governed by section 1 of the Children Act 1989’, held that the ‘discipline’ remained relevant.
In the single speech, Lord Justice Munby concluded: ‘The guidance… in Payne… is not confined to cases where the applicant is the primary carer. It… may be utilised in other kinds of relocation cases if the judge thinks it helpful and appropriate to do so.’ Following F, practitioners can expect judges to apply the ‘discipline’ in Payne, though not the presumption, to most relocation cases. The legal difficulty of these cases is, however, unlikely to diminish. Payne has been the subject of academic and, in Re AR (A Child: Relocation)  EWHC 1346, judicial criticism. Can it be fair to invite the applicant to describe the emotional effect of failure? And do all parents let their own frustrations ‘impact detrimentally’ on their children?
Payne may be problematic, but the real difficulty lies in the ‘paramountcy principle’ itself. The root meaning of paramount is ‘above’; it has come to mean ‘superior’ or ‘pre-eminent’ (OED). The courts have interpreted the word in the latter sense. At first sight, this may seem a good thing. Consider, however, the following, fairly typical example. Mother and father have a young child, A; they separate and the mother (A’s primary carer) forms a new relationship with, say, an Australian; the mother and her new partner have another child, B; the mother applies for permission to remove A to Australia; the father has a good relationship with A which the move to Australia would sever. The layman might suppose in such a case that the mother’s freedom to live where and with whom she wished, and B’s right to live with his father were capable of outweighing the detriment to A. The layman would be wrong: as the law stands, A’s welfare outweighs everything else.
Not only does the paramountcy principle prevent the court from giving due weight to factors other than the child’s welfare, it is probably inconsistent with the European Convention on Human Rights. In the example above, the right of the mother and B to family life (article 8) ought to be weighed independently of A’s welfare; there is no necessary connection between them. The principle may also be discriminatory, contrary to article 14, because it restricts women’s liberty much more often than men’s.
Until the Court of Appeal reinterprets ‘paramount’ so that the welfare of the child whose removal is in issue, while still the court’s first consideration, no longer preponderates – becomes, as it were, a king, instead of a trump card – there will continue to be cases in which judges will be unable to achieve a fair outcome within the law. It may be a while before the fog lifts.
District Judge Taylor sits at Horsham and Worthing county courts