Saturday, 9 July 2011

A very British Coup - Payne Reviewed?

The following is of course a fictitious interpretation of what has recently happened in the Royal Courts of Justice, concerning the quite astonishing, and long overdue review (civil court rescue of its family court cousin?) concerning the binding precedent of Payne v Payne. We are of course not reviewing or interpreting or amending what was said in court. Our sincere respects to Lord Justice Moore-Bicke (would he mind staying a while!) and Lady Justice Black, and of course, to Lord Justice Matthew Thorpe, our Head of International Family Law.

"Now look into my eyes...

Let me introduce myself. I'm a new boy to family law, s
o bear with me if I appear a little callow. Well yes, I may be Deputy Head of Civil Justice, but I'm only here by chance, just filling in for the day!

Let us remind ourselves that our President of the Family Courts said a review of Payne wasn't possible in the Court of Appeal, so of course, this isn’t what we’ll be doing in court today. Sir Nicholas was of course quite right that only the Supreme Court or Parliament could review binding precedent *mumble*... yes I'm aware that if Payne had been applied 'per incuriam' - without care - then of course the Court of Appeal could make corrections, but that's not why I've been parachuted in *cough*, I mean why I am here by chance today
[and if it is held that I have reviewed Payne, I've covered myself quite nicely at paragraph 79... note well Lord Falconer, this is why judges should have an advocacy background and not come from the lesser ranks!].

So let me be quite clear, this judgment I am handing down today, in this case K (Children) does not include a review of Payne, oh no, not in the slightest. I've simply passed some comments on Payne, I'm not reviewing it at all, and I am not contradicting our President of the Family Courts.

Payne of course remains as precedent, but only in so far as it raised a single point of law (
look into my eyes)..."that child welfare must be the court's paramount consideration" [which of course needed to be emphasised in 2001 as a point of law, given that some of my colleagues appear not to have understood what paramountcy means - looking at no-one in particular].

I am aware that some will say that I am rewriting the guidance in Payne (the Solicitors Journal), but they're quite mistaken... not at all what I'm doing, I'd just like you to consider that the entire family justice profession and judiciary, with the notable exceptions of Hedley J and Elias LJ, have misunderstood and misapplied Payne v Payne for the last 11 years [so glad I come from the civil courts!]

We'll avoid mentioning the thousands of British families affected. The children who
have subsequently lost contact with the parents left behind due the court's additional
naivety at blindly believing so many 'primary carers' that they will of course support
contact once beyond the UK court's grasp. No point mentioning the emotional, psychological and developmental harm which relocation risks inflicting on our children. We can't turn the clock back, and they're no longer within our jurisdiction, so they're not British children now, strictly speaking, or our responsibility.

Clearly, there is little point in apportioning blame, when the only way to sack those responsible would be to have both Houses of Parliament vote to remove them from office, and that has only happened once in 250 years. Parliament's attention is understandably focused elsewhere.
[Could the timing of this judgment have been any better... thank heavens for the News of the World!]

Let us also avoid Matthew's quoting of statistics, and the fact that the Equalities Commission found in 2008 that fathers and mothers share care almost equally in today's society, and it is only once the courts become involved that this falls from almost 50% to the 3% that Matthew just quoted to you.

Let us also avoid mentioning the likelihood of harm caused to children by the court's position for the last 40 years, and that Briefing Report and evidence submitted at Westminster last November by The Custody Minefield and Families Need Fathers which highlighted that these risks of harm have been known since 2002, yet it has taken concerted campaigning to get the family courts to remember that their raison d'etre is safeguarding child welfare and not dogmatic wrangling over protocol.

*Cough* Moving swiftly on, I believe it is a more sensible resolution to say
that, what you believed Payne v Payne to have meant, and how it bound you all
wasn't in the slightest what the Lord Justices intended... was it Matthew... just nod old chap!

...and of course the guidance must be 'followed', as the President of the Family Courts said recently), what he actually meant was 'considered', since aside from the sole point of law concerning the paramountcy principle, it just provides some jolly useful tips, which of course should be considered, but that guidance is merely guidance, it isn't actually binding you see, and never was!

There has however been a jolly unfortunate misunderstanding, and had it not been for Matthew's slight slip in 2007 which caused this fuss, of using super-glue to apply guidance as precedent, we could all be doing something else this afternoon.

...and of course Re Y should be heeded by the judiciary where care is shared as Matthew so rightly just reminded you [after our little chat].

With reference to his comment that Re Y will only affect a handful of cases, I refer you to Lady Justice Black.

Lady Justice Black peers over the top of her glasses and says [and I quote] ... 'I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case"'

(Is that clear Matthew)

So you've all been dreaming... you're in a better place... I'm going to count back now, 3.... 2..... 1.....

[Editor – ‘Does anyone remember that moment when Bobby Ewing stepped out of the shower and he hadn’t been murdered at all, 18 months before?']

A dream?
Peut-etre c'etait un cauchemar pour les enfants.

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