An end to Payne?Families Need Fathers calls for action to displace Payne v Payne [2001] 1 FLR 1052 by the Supreme Court, as the guiding case on relocation as a matter of urgency.
Relocation is a major cause of distress for the child and the parent left behind and it is likely to result in a complete loss of contact between the “non-resident parent” and their children. The leading authority in relocation cases is still Payne. The premise behind Payne v Payne is that not allowing the primary carer to take their child to live in another country will have an effect on the primary carer’s psychological wellbeing and hence the child's.
There is a growing consensus among Judges, notably the President of the Family Division (Re D (Children) [2010] EWCA Civ 50) and most recently Mr Justice Mostyn (F v M [2010] EWHC 1346) that a review of Payne v Payne is needed. Mr Justice Mostyn has argued that Payne rewards “selfishness and uncontrolled emotions". Family Law professionals also agree that its time is up.
Lord Justice Thorpe, who delivered the leading opinion in Payne, told the BBC Radio 4 Today programme yesterday (30 June 2010) that there is a need to “re-evaluate”.
Becky Jarvis, Policy Officer says “we know of cases where children as a result of Payne v Payne have been removed from one of their parents, their wider family, their school and their friends. It is our experience that the hard line taken in Payne v Payne has been followed, albeit with misgivings, by judges up and down the country. We see too many children separated from parents. If the consensus among judges is that, at best, Payne v Payne is out of date then this needs to be revisited as a matter of urgency. Even the judge who made that judgement thinks it is time to look at it again”.
“We understand that, after separation, life has to move on but we know that there are cases in which the primary carer decided to move thousands of miles away with the explicit aim of making a relationship with the other parent impossible. Neither parent should have a veto on the life choices of the other, but it is our strong view that the court needs to investigate the real motives behind relocations and act to protect the best interests of the children and their right to meaningful relationships with both parents and their wider families.”
Michael Robinson of the Custody Minefield commented “LJ Thorpe talks of the need for uniformity and convention, and that is the problem. He misses that the criticism of his guidance in Payne v Payne does not centre on the Family Division of the Courts being out of step with other commonwealth courts (which it is), but on its continued failing to take into account a compelling and overwhelming body of child welfare related research which directly contradicts his guidance.”
