In the case Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall reaffirmed senior judiciary’s unwillingness to update their binding guidance on the lower courts. It is worth re-visiting the arguments for the reform, which still stand. The campaign website to reform this area of law is now the most visited on Google when members of the public search for information on ‘leave to remove’. Heads must come out of the sand – www.relocationcampaign.co.uk.
In contrast to the Court of Appeal, and in the words of the High Court in the case AR (A Child: Relocation) [2010] EWHC 1346 (Fam) – the guidance in Payne v Payne must be ‘urgently reviewed’. The legal reasons are that existing guidance:
a) Fails to afford sufficient weight to the child’s wishes and feelings;
b) Fails to afford appropriate credence or weight to abundant and indisputable scientific research and evidence demonstrating the deleterious psychological, developmental and educational consequences a child is likely to experience in the absence of a ‘meaningful’ relationship with both its parents. This research can be found within the report presented at Westminster in November 2010 and entitled ‘Family Law: Relocation: The Case for Reform’;
c) Affords too great a weight to the un-scientific and un-proven supposition - pontificated upon in the case of Poel in 1970, but still remaining the legal bedrock of relocation law - that a primary carer’s disappointment at the refusal of her application would impact so greatly upon her as impact on her ability to provide adequate care to the children, thereby causing them harm:
i) In 40 years, there has been no expert evidence which supports the court’s suppositions in this regard;
ii) This supposition is given equal (and in practice, greater) importance in the judicial balancing exercise than the statutory child welfare considerations decided by Parliament and set out in s.1(3) of the Children Act 1989;
iii) It is therefore arguable that the guidance in Payne v Payne and its later application by the judiciary has been made without care (‘per incuriam’), and should therefore be set aside. Our current (and previous) President of the Family Division of the Court is therefore wrong in his opinion that only Parliament or the Supreme Court amend the guidance given in Payne.
d) Fails to consider the counter view point that the happiness and well-being of a child as a direct consequence of its remaining in a meaningful relationship with both parents (which is supported by expert evidence) and in its familiar environment and while maintaining peer friendships and while suffering no disturbance to their education will, in and of itself, contribute to the happiness and contentment of the ‘primary carer’;
e) Relegates the harm done to the child from a permanent breach of its ‘meaningful’ relationship with the parent left-behind;
f) Fails to give proper consideration to the difficulty in maintaining the parent/child relationship should the relocating parent breach the UK made contact order. The child in Payne v Payne went on to lose all contact with their UK parent. It is a trite point that the case upheld by the court as the model for all future relocation cases, for the child in that case, failed. The child’s right to an on-going relationship with both parents, as set out in the United Nations Convention on the Rights of the Child, is not afforded adequate protection;
g) Affords too great a weight to the wishes and feelings of the applicant parent, notwithstanding the sincerity and ‘genuineness’ of his/her motives, failing to properly balance these against the competing rights of the child and the respondent parent to an on-going family life;
h) Fails to acknowledge the benefit to a child of maintaining the stability and familiarity of its social, cultural and educational environment, particularly when the child has already suffered the trauma of the separation of its parents;
i) The guidance in Payne goes counter to the importance given by Parliament in statute (s.1(3)(c) CA 1989) of maintaining the status quo as a significant factor in ensuring the child’s welfare;
j) Fails to give appropriate credence or weight to the scientific evidence demonstrating that a ‘meaningful’ and wholesome relationship cannot be adequately maintained on the basis of infrequent contact in motel rooms or via electronic media such as Skype;
k) Fails to take into proper account the major societal shifts in the organisational dynamics of modern family life which have undoubtedly occurred since 1970 when the court’s guidance was first set, in particular, the nine-fold increase in father involvement in childcare, and the psychological, sociological and educational development of their children. In the case Payne in 2001 (para 29), LJ Thorpe stated that he had no evidence to support this assertion. That evidence now exists. The judiciary have failed in their incumbent duty to ensure the proper development of law to reflect societal shifts in parenting;
l) Fails to appreciate that, in hearing Ancillary Relief matters separately and at a later date, little or no detailed consideration is given to the important issue of whether or not overseas contact orders are affordable and achievable in practice;
m) Implies judgments concerning child relocation in UK family law are ‘fact specific’ when they are not:
i) In the case Re G (Children) [2005] FLR 166, the court went so far as to declare there no need for mothers to provide expert evidence to support they would be so distressed by the refusal of their application to the extent that the children would suffer significant harm due to their distress;
ii) Expert evidence concerning the deleterious impact of removal from a parent is routinely ignored in judgments;
iii) No expert evidence exists to support judicial ideology in these cases. Judicial opinion is not fact;
iv) Relocation cases often contain numerous and detailed ‘facts’ pertaining to the appearance and demeanour of the applicant and respondent parents in the witness stand. The judge’s perception is not fact, but opinion, often not taking account of the stress and unfamiliarity of proceedings on the parties concerned, and making assumptions as to the parties’ demeanour and reasons for this. Judgments are afterwards made on a ‘balance of probabilities’ based on opinion, rather than the more strident test of ‘beyond reasonable doubt’ based on incontrovertible evidence.
Judgments in relocation cases, therefore, are not ‘fact’ based, but arrived at primarily as a consequence of the application of the principles and ideology of Payne, and not, as is constantly asserted by the Court of Appeal, as a consequence of the ‘facts’.
Other ‘facts’ are given little weight in practice, which may not even be recorded in the judgment. For example, facts concerning the child’s anxieties about having to relocate overseas; its preference to remain in the UK and in contact with both parents, to remain at its school and in contact with friends; the applicant’s nexus of friends; the applicant’s general resourcefulness, work experience in the UK and so on. These and many other ‘facts’ which may be absent from judgments or given little weight precisely because the suppositions and ideology of Payne deemed them to be of a lesser importance.
n) Fails to appreciate that a judgment in favour of removal is only considered to be ‘powerful’ when assessed using the now much criticised 1970’s unsubstantiated principles, directives and ideology upheld within Payne v Payne. If British relocation judgments were viewed through the lens of progressive, child-focused, evidence-based New Zealand relocation law, they would NOT be considered "powerful";
o) Is markedly different from peer and modern guidance within the international legal fraternity, as set out in the Washington Declaration made in March 2010. Judicial thinking in the UK goes counter to that of the experts from 50 other countries.
A further fallacy is that the higher courts accept such cases to be finely balanced. Evidence strongly implies otherwise. 90% of relocation cases result in the children relocating, and not a single appeal of the grant of leave to remove has been successful at the Royal Courts of Justice. In fact, these cases may be finely balanced, but in terms of judicial discretion, the binding guidance enforces a rigidity which goes counter to child welfare, prohibiting the proper development of law, and forcing judges in the lower courts to pronounce judgments with which they may not agree.
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