Wednesday, 24 October 2012

F (Child) [2012] EWCA Civ 1364

An interesting and more unusual leave to remove case (related to international relocation of children), although the points more generally of interest come from paragraphs 37, 49 and 60, and specifically address any assumptions of loose ends from K (Children) [2011] EWCA Civ 793 about whether a case is a Payne v Payne type case (e.g. following the guidance raised in Payne v Payne), or a Re Y type of case.

37. There can be no presumptions in a case governed by section 1 of the Children Act 1989. From beginning to end the child's welfare is paramount, and the evaluation of where the child's best interests truly lie is to be determined having regard to the 'welfare checklist' in section 1(3).
49. In my judgment there was no error of law. Although this was not a case where the application was being made by the primary carer, Judge Marston was, for the reasons I have given, entitled to have regard to Thorpe LJ's "discipline" as set out in Payne at paragraph [40]. He correctly appreciated that the case had to be decided by reference to P's best interests. And, at the end of the day, that is precisely what Judge Marston did. 
60.    There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, "the circumstances in which these difficult decisions have to be made vary infinitely." This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a "Payne type case", or a "K v K type case" or a "Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.

The full judgment can be read here - F (Child) [2012] EWCA Civ 1364 

TCM Interpretation: The correct approach is to look at each case according to its specific facts, and use the criteria set out in the Welfare Checklist to determine what should happen for the child. Judicial discretion once again comes to the fore, rather than precedent or guidance.