Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
Held: The court pointed to the real difficulties always in such applications, and traced the development of the case law from the introduction of shared residence orders in the 1989 Act. Mostyn J recounted criticisms of Payne v Payne insofar as it might be read to place too great an emphasis on any impact of a decision on the primary carer, and recognised the need to apply the 1989 Act. Following Payne in this case, he refused permission for the mother to take the child to France, and made a joint residence order.
Mostyn J said that the ideology exemplified in Payne v Payne; ‘has not been uncritically accepted. Indeed there is a strong view that the heavy emphasis on the emotional reaction of the thwarted primary carer represents an illegitimate gloss on the purity of the paramountcy principle. Moreover, some argue that it promotes selfishness and detracts from the importance of co-parenting. Some argue that on the birth of children parents are indentured to sacrifice throughout their minority, but that the one word that is missing from Payne is, in fact, sacrifice.’ and
‘Certainly the factor of the impact on the thwarted primary carer deserves its own berth and as such deserves its due weight, no more, no less. The problem with the attribution of great weight to this particular factor is that, paradoxically, it appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions. The core question of the putative relocator is always ‘how would you react if leave were refused?’ The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically. This is the reverse of the Judgment of Solomon, where of course selflessness and sacrifice received their due reward.’
Mostyn J
[2010] EWHC 1346 (Fam), [2010] 2 FLR 1577, [2010] 3 FCR 131, [2010] Fam Law 932
Bailii
Children Act 1989
England and Wales
Citing:
Cited – Poel v Poel CA 1970
The mother of a child of two and a half had obtained a custody order with weekly access given to the father. She wished to emigrate with her new husband and the expected child of that marriage to New Zealand. She applied to remove the child . .
Cited – A v A (Children: Shared Residence Order) CA 3-Feb-1994
A shared residence order may be still made if it is needed, but it remains an unusual order. Connell J discussed the guidance given as to shared residence order
Butler-Sloss LJ said: ‘Miss Moulder, representing the father, accepts that the . .
Cited – Riley v Riley 1986
. .
Cited – In Re D v D (Children) (Shared Residence Orders) CA 20-Nov-2000
Three children, after their parents’ separation, spent substantial amounts of time with each, despite the acrimony between their parents and frequent court applications. The father argued that without a shared residence order he was treated as a . .
Cited – In Re G (Children) (Leave to Remove) CA 11-Dec-2007
An application was made with regard to the care arrangements for children. The parents were living in different countries.
Thorpe LJ stated: ‘ Accordingly, the only skeleton in support of the appellant’s notice is the skeleton settled by Mr . .
Cited – Re H (A Minor) (Shared Residence) CA 1-Dec-1992
The court considered the possibility of making a joint residence order. Purchas LJ said: ‘That such an order is open to the court, as has been said in the judgment of Cazalet J, is clear from the provisions of section 11(4) of the Children Act 1989, . .
Cited – In re H CA 19-May-2010
Wilson LJ considered a declaration on International Family Relocation from March 2010 in Washington and said: ‘In that the principal charge against our guidance, as it stands, is that it ascribes too great a significance to the effect on the child . .
Cited – In re D (Children); BD v AID CA 9-Feb-2010
The father sought leave to appeal against an order permitting the mother to remove the parties two sons from Wales to live in Slovakia. The judge had made a shared residence order. Wall LJ discussed the criticisms of Payne -v- Payne, saying: ‘There . .
Cited – In Re C (Abduction: Residence and Contact) FD 2006
Mostyn QC J considered the impact of Art 8 of the European Convention on Human Rights on applications for residence and contact, saying: ‘On the facts of this case it is clear to me that supervised contact would only have been appropriate if there . .
Applied – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Cited by:
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 06 December 2021; Ref: scu.417780