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 Mostyn QC and Mrs Carew Pole as long ago as 12 October. The thrust of that skeleton is to suggest that the leading authority in this court, the case of Payne v Payne [2001] 1 FLR 1052, was now outdated and heavily criticised, both in this jurisdiction and beyond, by judges, practitioners and academics. The decision in Payne v Payne was, I think, available in February 2001, and in the skeleton argument it was suggested that it was antiquated, in that it reflected the view of a past age when joint residence orders would only be made in wholly exceptional circumstances. The essential complaint was that in modern times, when joint residence orders have become commonplace, judges were applying the principles in Payne v Payne, or some judges were applying the principles in Payne v Payne, which were predicated upon a status of sole residence order and sole primary carer. The skeleton, further emphasises two judgments at first instance, where judges of the Family Division have declined to follow the guidelines in Payne on the basis that the case before them was a case in which there was no clear primary carer.
That, in my judgment, would be an extremely difficult argument to advance in this court. Clearly this court is bound by the decision in Payne v Payne so long as there is not a self-evident social shift that requires its reconsideration. I am far from persuaded that there has been any social shift and would only emphasise that the decision in the influential case of D v D [2001] 1 FLR 495 was given some months earlier, on 20th November 2000. In D v D, both the President and Hale LJ emphasised that joint residence orders were certainly not to be labelled as exceptional. That would be an unwarranted gloss on the statute. They were part of the menu of choice for trial judges, and where the circumstances suggested that form of order then it was an order that would be supported by this court. That shift from a position that obtained in the 1990s must have been well in the mind of this court, given that both in Payne and in D v D the presiding judge was the former President, Baroness Butler-Sloss. Furthermore, as Mr Cobb has pointed out in his skeleton argument, an analysis of the facts in Payne v Payne demonstrates that the father there, prior to the judgment in the county court, had been having the children at his home for much the same proportion of the year as the father in this case.
So the grounds within the appellant’s notice, skilfully settled by counsel, opened with the first, that namely:
‘The current principles applicable in relocation cases need to be reviewed, as they place an impermissible gloss on the statute; wrongly prioritise one factor above all others (the impact of refusal on the primary carer); are out of step with modern views of the dynamics of family life and of the importance of co-parenting; are inconsistent with the approach taken in many overseas courts, both common-law and civil, and are the subject of serious public criticism, both popularly and by the legal community.’
A submission to that effect, I recognise, might be open in an appeal to the House of Lords, but plainly not at this level; and accordingly I refused permission on that ground whilst granting the limited opportunity on the remaining grounds, 2 to 12.
That resulted in a letter from the appellant’s solicitors, in which they somewhat retreated from an earlier stated intention to argue for permission on Ground 1 at this oral hearing, something that they were obviously entitled to do, given that the refusal had been only a paper refusal. However the letter of 16th retreated to the extent of this statement:
‘on reflection [we] think that Ground 1 has perhaps been too strongly stated. In essence we would wish to argue that the current principles as enunciated in Payne v Payne have been much misunderstood and frequently misapplied by lower courts (inasmuch as they appear to deduce from these principles (a), the prioritisation of one factor above all others – the impact of refusal on the primary carer – and (b), the disregard of modern views on the importance of co-parenting), and therefore should be restated in such a way that future misapplications and misunderstandings do not occur.’
‘ Mr Mostyn, at the very end of his submissions, came to address this point. That he had left it to the end is perhaps a reflection of the difficulties that confronted him in advancing it. A decision of this court stands and requires no correction, so long as the principles enunciated remain good. He was not suggesting that Payne v Payne had been wrongly decided and should therefore be revisited. He was only suggesting that it was being widely misunderstood. That does not seem to me to be an issue that can be in an individual case. In the individual case, all that is in issue is whether the judge has correctly or incorrectly understood and applied the principles. Mr Mostyn sought to contend that there was amongst the practitioners some sort of general perception that district judges at conciliation appointments are applying unfair pressure on respondents to relocation applications. My Lord, Wall LJ, quite properly stopped that line of submission and it is important, I think, to emphasise that applications for permission in this area are commonplace and in view of the importance that the decision has both for the children and for their emotionally distraught parents, we not infrequently grant some sort of oral hearing, generally on notice and generally with appeal to follow.
The volume of such applications and hearings is not inconsiderable and only a proportion of those reach the specialist law reports. I see almost all those cases and I certainly have no impression that the principles in Payne are being misunderstood and misapplied. Very often the trial takes place before a circuit judge who may not be a specialist in international family law and may have nothing but a private law ticket to equip him for the task, but cases in which we have had to intervene on the grounds of misdirection are infrequent. Sometimes this court has intervened and allowed an appeal. Sometimes this court has had no hesitation in upholding the decision below as a decision that particularly fell for the judge, who had had the advantage of seeing and hearing the oral evidence and who in the end had had to apply a very difficult balance of a number of competing factors.
These cases are particularly traumatic for the parties, since each of them conceives so much as being at stake. They are very, very difficult cases for the trial judges. Often the balance is very fine between grant and refusal. The judge is only too aware of how heavily invested each of the parents is in the outcome for which they contend. The judges are very well aware of how profoundly the decision will affect the future lives of the children and how difficult it will be for the disappointed parent to adjust to the outcome. Despite the difficulties that these cases present, certainly from the perspective of this court, the principles enunciated in Payne v Payne are well understood and have been of evident assistance to trial judges in the difficult task that they perform. That is all that I need to say about the submission with which Mr Mostyn concluded.
Judges:
Thorpe LJ, Arden LJ, Wall LJ
Citations:
[2007] EWCA Civ 1497, [2008] 1 FLR 1587
Links:
Jurisdiction:
England and Wales
Citing:
Re-affirmed – 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 – In re AR (A Child: Relocation) FD 10-Jun-2010
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 . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 30 November 2022; Ref: scu.266571