For the past 40+ years, there have been many cases on child
relocation, with varying degrees of emphasis placed on the approach
to be taken when one party wishes to move to another country with
the child or children of the family. Through the decades, the
changes appear to have been evolutionary rather than revolutionary,
taking into account social change since the 1970s.
In Re K, the mother was Canadian and the father was
Polish, although he spent his formative years in Canada. He moved
to England in 1993 and the mother in 2003. They had two young
daughters aged four and two. Divorce proceedings commenced in July
2010. Both parents were employed in the banking sector and both
were able to work part time to enable each to be involved with the
children. A Shared Residence Order was made by the Court in August
2010 which provided that the girls were to spend five consecutive
nights with their father and nine nights with their mother in every
The mother decided that she wished to return to Canada and
applied to the Court for leave to relocate. Up to this point, the
leading case on this issue was the 2001 case of Payne v
Payne  EWCA Civ 166, which set out guidance for deciding
cases with a strong reference to the emotional well-being and
happiness of the primary carer (in practice, most usually with the
mother). The Judge hearing the Re K case followed the
guidance set out by the Court of Appeal in Payne, and
allowed the mother to relocate to Canada with her two children,
despite the fact that there was a definite sharing arrangement
between the parents. The Judge considered that the effect of a
refusal on the mother to relocate would cause her feelings of
increased isolation and depression. However, in contrast the Judge
did not address the effects of the relocation on the father. On
appeal by the father, the Court of Appeal overturned the
Lord Justices Thorpe and Moore-Bick were prepared to lay the
guidance in Payne to one side in cases involving shared
care. In his leading judgment, Lord Justice Thorpe reiterated the
law by stating that 'the only principle to be extracted from
Payne v Payne is the paramountcy principle'.
Essentially, Lord Justice Thorpe was saying that the welfare of the
child as set out in S1 (3) of the Children Act 1989 is paramount
and that everything else is merely guidance. The Court must
consider the statutory checklist contained in S1 (3) in exercising
discretion, but the guidance laid out in the case of Payne is
applicable where the applicant is the primary carer. Consequently,
Payne is no longer the leading authority in cases
involving a shared care arrangement.
Lord Justice Black disagreed with this approach and set out her
case, albeit cautiously, in support of the Payne guidance,
even in a sharing situation. This may open the door in future cases
to considerable judicial 'cherry-picking' in relation to
the judgments in Re K, but, for the moment, the case
against relocation where care of children is shared can be more
robustly argued. The decision strikes a victory not only for
children, but for the left-behind parents whose relationship with
their children would be irrevocably altered once leave is given to
remove a child from the jurisdiction.
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