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.
Held: The move was a serious interference with family life. The motivation of the parent, the reasonableness of the proposal, and the effects on the child were all important and relevant, but the judge had given proper consideration to these factors, and the paramountcy of the child’s interests. Neither domestic case law nor human rights law created any presumption in favour of the applicant. Existing case law was to be reconsidered in the light of the 1998 Act.
Thorpe LJ said: ‘the advent of the Convention within our domestic law does not necessitate a revision of the fundamental approach to relocation applications formulated by this court and consistently applied over so many years. The reason that I hold this opinion is that reduced to its fundamentals the court’s approach is and always has been to apply child welfare as the paramount consideration. The court’s focus upon supporting the reasonable proposal of the primary carer is seen as no more than an important factor in the assessment of welfare. In a united family the right to family life is a shared right. But once a family unit disintegrates the separating members’ separate rights can only be to a fragmented family life. Certainly the absent parent has the right to participation to the extent and in what manner the complex circumstances of the individual case dictate.’
‘In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:
(a) the welfare of the child is the paramount consideration; and
(b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children . .
Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother’s future psychological and emotional stability.’
He continued: ‘However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent’s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.’

Thorpe LJ P, Walker LJ, Butler-Sloss LJ
Gazette 08-Mar-2001, [2001] Fam 473, [2001] EWCA Civ 166, (2001) 165 JP 195, [2001] HRLR 28, (2001) 165 JPN 466, [2001] 1 FCR 425, [2001] UKHRR 484, [2001] 2 WLR 1826, [2001] 1 FLR 1052, [2001] 1 Cr App R 36, [2001] Crim LR 842
Children Act 1989 13(1)(b), European Convention on Human Rights 6 8, Human Rights Act 1998
England and Wales
CitedPoel 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 . .
CitedA v A CA 1979
The mother had been given leave to take the child of the family out of the jurisdiction. The father sought leave to appeal.
Held: Ormrod LJ said: ‘It is always difficult in these cases when marriages break up where a wife who, as this one is, . .
CitedChamberlain v de la Mare CA 1983
The mother wanted to take the two infant children to New York with her new husband. The father resisted. At first instance, Balcombe J had considered both Poel and Nash, but said that without wishing to be an iconoclast, he would simply apply the . .
CitedLonslow v Hennig CA 1986
The mother sought leave to remove the children of the family against the father’s wishes. She wanted to move to New Zealand. The judge at first instance had refused her application. She appealed.
Held: The appeal succeeded. Though the first . .
CitedMoodey v Field CA 13-Feb-1981
The mother appealed against refusal of permission to remove the child from the jurisdiction.
Held: Ormrod LJ summarised the situation: ‘the question therefore in each case is, is the proposed move a reasonable one from the point of view of the . .
CitedNash v Nash CA 1973
Davies LJ said: ‘But I emphasise once more that when one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.’ . .
CitedBelton v Belton CA 1987
The mother appealed against refusal of leave to remove her children from the UK on emigrating to New Zealand.
Held: The appeal succeeded.
Purchas LJ said that: ‘in carrying out the exercise of assessing what was in the interest of A as . .
CitedTyler v Tyler CA 1989
Kerr LJ, having considered the cases on removing children from the jurisdiction on one parent emigrating said: ‘I also accept that this line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a . .
CitedMH v GP (Child: Emigration) FD 1995
A single mother wanted to move permanently to New Zealand with her four year old son. The father had regular contact with his son.
Held: The application failed. The Judge stressed the importance of the child’s relationship with the father and . .
CitedDouglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
CitedGlaser v The United Kingdom ECHR 19-Sep-2000
‘The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the . .
CitedIn re H (application to remove from jurisdiction) FD 1998
The mother had remarried and now wished to move to the United States with her new husband, an American. The father had played an unusually large role in caring for the child as a baby and continued to keep closely in touch with her. The judge said . .
CitedIn Re L (A Child) (Contact: Domestic Violence); In Re V (A Child) (Contact: Domestic Violence); In Re M (A Child) (Contact: Domestic Violence); In Re H (A Child) (Contact: Domestic Violence); In re L, V, M and H (Children) CA 21-Jun-2000
When considering contact applications after domestic violence, the approach should be child centred, and according to the criteria in the Act. The circumstances of the violence should be looked into, and the potentially damaging effect of contact . .
CitedIn re A (permission to remove child from jurisdiction: human rights) CA 2000
The mother had been given leave by the Recorder to remove a ten month old girl permanently from the jurisdiction to the United States in circumstances where the mother`s job prospects were better in New York than in England. The father, (in person) . .
CitedIn Re C (leave to remove from the jurisdiction) CA 2000
The court heard an appeal from an order made on an application for leave to remove a child from the jurisdiction. . .
CitedIn re E (Minors) (Residence Orders: Imposition of Conditions) CA 30-Apr-1997
A residence order can not be accompanied by an order as to where a parent with care must live in the UK or with whom. An appeal may well arise in which a disappointed applicant will contend that section 13(1)(b) of the Children Act 1989 imposes a . .
CitedIn Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
CitedJohansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
CitedDawson v Wearmouth HL 4-Feb-1999
The parents were unmarried. The mother had registered the child under her former partner’s surname. The father sought an order that his name be used instead. The mother’s apeal against an order to that effect had succeeded.
Held: The father’s . .
CitedL v Finland ECHR 27-Apr-2000
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 8; No violation of Art. 13; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
CitedIrene M Scott v The United Kingdom ECHR 8-Feb-2000
(Admissibility) The court was asked whether the mother’s Article 8 rights had been breached by a local authority who had applied to free her child for adoption, the court once again stated that ‘the best interests of the child is always of crucial . .
CitedIn Re N (Leave to withdraw care proceedings) 2000
. .
CitedIn Re A (Adoption: Mother’s Objections) 2000
. .
CitedJ v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
CitedMH v GP (Child: Emigration) FD 1995
A single mother wanted to move permanently to New Zealand with her four year old son. The father had regular contact with his son.
Held: The application failed. The Judge stressed the importance of the child’s relationship with the father and . .

Cited by:
CitedIn re Auld (Child: Temporary removal from Jurisdiction) CA 4-Nov-2004
The applicant wanted to go to South Africa to study, taking her child with her. The course would last for two years.
Held: The jurisprudence on removing children abroad had to be applied differently when the removal was temporary. Some . .
CitedB (A Child); Re C (Welfare of Child: Immunisation) CA 30-Jul-2003
The father sought a specific issue order for the immunisation of his child in particular with the MMR vaccine. The mother opposed all immunisation.
Held: Whether a child was to be refused immunisation was an issue on which both parents should . .
Re-affirmedIn 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 . .
CitedIn 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 . .
CitedIn 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 . .
Citedin Re A (Leave to Remove: Cultural and Religious Consideration) FD 2006
. .
CitedIn re W (Children) CA 28-Jan-2009
. .
CitedETS v BT; in re T (A child); In Re L (a child) (internal relocation: shared residence order CA 28-Jan-2009
The mother appealed against a residence order granting the father equal time with the child, saying that she wished to move away.
Held: Wall LJ examined the authorities.
Wall LJ P said: ‘In twenty years time it will not matter a row of . .
CitedAM v IM ScSf 28-Jun-2008
. .
CitedAM v IM ScSf 28-Jun-2008
. .
CitedIn re X and Y FDNI 17-Aug-2005
. .
CitedIn re X NIHCM 23-Dec-2005
. .
CitedE v E CA 27-Jun-2006
The court heard cross appeals by both parties regarding an order for shared residence and apportioned care and for ancillary relief.
Held: Both appeals succeeded, the order was set aside (save as to the decision for shared residence) and the . .
CitedRe M (Children) CA 19-Oct-2007
. .
CitedRegina (Howard League for Penal Reform) v Secretary of State for the Home Department QBD 29-Nov-2002
The League challenged the respondent’s statement in the Prisons’ Handbook that children held in young offender institutions were not subject to the protection of the 1989 Act.
Held: Neither the Prison Act and Rules excluded the Prison . .
CitedIn re B (Children) (Removal from jurisdiction); In re S (Child) (Removal from jurisdiction) CA 30-Jul-2003
Mothers appealed refusal of leave to remove their children from the jurisdiction so that they could make a life with a new partner.
Held: The case of Payne was not directly of effect, because the mother there was returning to her home country. . .
CitedW v A CA 4-Nov-2004
. .
CitedEmma R v Edward R FD 10-Nov-2004
Mother’s application for residence order allowing the children to live with her in Paris. . .
AppliedIn 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, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.135573