No more Payne

As someone who has packed up my life and moved 3,500 miles to live and work in another country, I know from personal experience how physically and emotionally complex such a move can be.

Increasingly families face the excitement and challenge of moves both within the country and between countries and continents. Relocations become increasingly common and breakdowns in relationships between parents increase, the courts have to deal with the resulting cases where the relocation of children is in dispute. If the parent staying in situ agrees to the move then there is no need to involve the court, but where they object, the courts are increasingly having to decide the issue.

Most parents do not realise that if they are separated from the child's other parent and do not have a residence order from a court providing for the child to live with them, they may be committing a criminal offence if they take a child under 16 out of the UK without the consent of the other parent. Where a permanent move abroad is concerned, the parent aspiring to move will need that consent or they will need to apply to the court for permission to take the child to live abroad. When the court considers whether to give permission, its paramount consideration is the welfare of the child or children.

Until very recently, in cases involving a move abroad, the court would generally apply the test laid out in the case of Payne v Payne [2001] 1 FLR 1052 which was usually held to mean that permission should not generally be withheld unless there was a compelling reason to do so, providing that the decision of the aspiring parent to emigrate was reasonable. There had been increasingly vocal debate about whether this properly protected both the child's right to contact with the parent being left behind and that parent's right to have a meaningful relationship with the child. Increasingly there has been a view that the Payne test is too easy for parents to meet and should be revisited by the court and that it was only a matter of time before a case was taken to the Supreme Court.

International departures

Recent overseas relocation cases in the Court of Appeal have tackled this head on. One in particular, MK v CK [2011] EWCA Civ 793, is seen as a move away from the Payne test (see Solicitors Journal 155/27, 12 July 2011).

The case involved a Canadian mother who wished to return to her country of origin with the children. Their father played a large part in their lives and they spent five nights in 14 with him. The judge hearing the case initially decided that the mother should, however, be allowed to relocate. The father appealed and the Court of Appeal found in his favour. The appeal judges said that where care of the children was shared, the approach in Payne should not be applied and the only authentic principle was the child's welfare. Guidance from Payne could not be ignored but was not rigid principle. It is clear therefore that, even without a decision from the Supreme Court, the Court of Appeal is prepared to move away from what had prevailed for some time on the basis of Payne, a presumption in reality in favour of parents with reasonable plans who sought to relocate.

Another relocation case heard before the Court of Appeal, Re F [2010] EWCA Civ 1428, highlights the difficulties and contradictions of the current state of the law, even within the UK, and ties in with the retreat in favour of parents wishing to move away from the other parent as confirmed by MK v CK. Re F is of interest as the move was an internal one within the UK, where it was proposed and hoped that the children would keep in regular contact with the parent staying behind. It might not be too far from the experience of many parents who wish to move for work reasons.

Internal moves

Relocation cases where the aspiring parent wishes to move within the UK have been treated differently by the courts. The starting point is that there is no requirement for the aspiring parent to ask the court for permission to move. They are free to move where they choose. However, where the other parent opposes the move, that parent can apply to the court for the aspiring parent to be prevented from moving and relocating the children.

The aspiring parent can also ask the court to decide whether they should be permitted to relocate with the children. This was the case in Re F. The mother lived in the North East of England with the four children. The mother and father had married in 1995, separated in 2003 and divorced in 2005. Each had remarried. There were four children aged between nine and 14. Each of the parents practised, or had until recently practised, as medical practitioners in the North East. The mother's new husband was also a medical practitioner.

Three of the four children had regular contact with the father. The only daughter of the marriage was only having contact with the father rarely.

The mother and her current husband had been offered a job share in the Orkney Islands and wished to move there with the children. Although the mother had not been born in Scotland, she was Scottish, her parents were Scottish and she had been brought up there. She and the father had both been medical students in Scotland and at the time of their marriage both considered practising medicine on the Isle of Skye. The mother's current husband's parents had lived in the Orkney Islands where the husband's father had practised first as a psychiatrist and then as a GP.

When the father did not consent to the move, the mother applied for the issue to be decided by the court. The children were interviewed by an independent social worker who recorded that they had mixed views regarding the move. The eldest child had mixed feelings whereas the two younger boys stated that they did not wish to go. The daughter felt strongly that she did wish to go.

The judge hearing the case decided the move would cause 'huge emotional strain' for the children, that the mother was 'sailing into entirely untested waters'. Although obviously no physical harm had come to the children, he said, there would be 'emotional harm'. The mother's application was refused.

The mother appealed but the Court of Appeal ruled that the original refusal should stand because it was a 'truly exceptional' situation. Taking into account the children's views and the upheaval, the court considered such a move would cause for the children. At the same time the appeal judges expressed the view that they would prefer that 'exceptionality' were not part of the case but were bound to use this test by previous decisions of the court.

Exceptional cases

Was this a truly exceptional situation? Arguably many cases will involve children moving from where they have been brought up and are firmly rooted. In many cases the proposed relocation will involve difficult and lengthy travel to see the other parent and, inevitably, with a move of any distance there will be impact on contact arrangements. Which children, particularly young teenagers, would vote for such change, even a move to the next town if it means leaving school and friends behind?

Parents in such cases are in a 'Catch 22' situation. To have any prospect of convincing the court, they must know the move is viable. That will involve establishing their employment prospects, accommodation, schooling, medical facilities an so on at the very least. It is difficult to do those things theoretically '“ practical investigations need to be made but all without knowing whether permission will be granted by the court or whether your situation will be considered as one of the 'exceptional' cases where permission should be refused.

The Court of Appeal's disapproval in Re F of the constraints of the current 'truly exceptional' test in internal relocations was a shot across the bow to parents wishing to move which has been reiterated by MK v CK. Both suggest the law in this area is developing and that it will be increasingly difficult for parents to rely on earlier court decisions. This leaves parents with even less of the certainty they seek at the very time when they are likely to want reassurance and definite answers.