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There are various grounds on which Lord Justice Thorpe’s arguments in Payne v Payne [2001] EWCA Civ 166 may be countered; his reasoning is contradictory: if there is “a price to be paid in welfare terms” by loss of contact with the father then that is “contrary to the welfare of the child”. Thorpe’s judgement considers the “fulfilment and happiness” of the mother and her new family exclusively; it entirely disregards the father’s. The principle of “natural emigration”, which Thorpe invented for the purpose of the case, is to take precedence over the wrecking of the “old family”, and the interests of the child.

“Natural emigration” is not obstructed if a court does not grant a mother leave to remove: she can either remain in the UK, or she is free to emigrate, but without the child; it is her choice, not the Court’s. As long ago as 1996 Lord Justice Ward was able to make this important distinction, in Re D (Minors) (Residence: Imposition of Conditions) [1996] 2 FLR 281,

The court was not in a position to overrule her decision to live her life as she chose. What was before the Court was the issue of whether she should have the children living with her.

To order that the children remain behind with the other parent is not to infringe upon the rights of a parent to emigrate if she so chooses. That may seem brutal, and most mothers will choose to remain with their children, (it’s not an argument we would advise you to use in court: “judges are not generally impressed by that tactic”, says Thorpe [1]) but it is an important distinction.

To claim “detrimental impact” requires hard evidence, and there simply isn’t any. Thorpe’s view is purely speculative. There has been much research in the 40 years since Poel which shows Thorpe’s speculation to have been in error. During the debate on leave to remove held by the family lawyers’ association Resolution in September 2005 Dr Mark Berelowitz, a child and adolescent psychiatrist at the Royal Free Hospital, stated that there was no scientific basis for this thinking and that relocation could not be used as a treatment for parental distress or depression, which effectively was Thorpe’s stance. Even Thorpe admitted,

Given that the principle [of detrimental impact] is not derived from expert evidence nor from many research studies in this jurisdiction the challenge [that the principle is ‘matricentric and discriminatory’] cannot be lightly dismissed.

The way in which precedent works in the family courts means that judges in all courts except the Supreme Court (and formerly the House of Lords) are obliged to follow precedents, and therefore Payne. Only the Supreme Court can overturn a decision based on Payne, but there are some indications of a change in attitude towards leave to remove applications. In the case of Re D (Children) [2010] EWCA Civ 50 Lord Justice Wall acknowledged that it may be time to re-evaluate Payne,

there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.

In Re W (Children) [2009] EWCA Civ 160, Lord Justice Wall had challenged the doctrine of detrimental impact and dismissed arguments that the mother would suffer “significant depression” if thwarted in her desire to move her two children to New Zealand.

· There was no medical evidence for the mother’s “significant depression” or that she would suffer more than disappointment if refused (the father also was depressed);

· There was no economic advantage in the move: the mother’s new partner had made only “half-hearted” attempts to find work in the UK;

· The mother’s ties with New Zealand were ‘slim’;

· If the move were allowed the mother “very significantly” would not actively encourage contact – “there is a history of reluctance and of some control by the mother”. The mother’s proposals for maintaining contact were “unrealistic”;

· The mother had failed to consider properly the loss of the wider family;

· The views of the children were of limited value, as they were based on misrepresentation by the mother;

· The mother’s new partner was determined to go to New Zealand anyway, with or without her, and without their new baby, demonstrating ‘a lack of commitment to family life’.

I have to say that I have no medical evidence of significant depression. I heard the mother come back when she was re-called and say that she was suffering and would suffer more if I turned her down. Mr Rowlands put it well when he said there will be very great unhappiness as a result of my decision one side or the other. The father also has had to have some medicaments for depression. It is not a case where I am able to say that the mother will be so savagely or severely damaged that this will get through to the children. She will be disappointed but she will have to consider what she can best do to overcome it if I turn down her application.

There were no grounds on which the Court of Appeal could overturn the lower court’s decision; however Thorpe, somewhat irresponsibly perhaps, encouraged the mother to further litigation at a later date:

Nothing in life is final. An adverse decision in the year 2008 does not preclude another application in years to come if the circumstances support or impel renewed litigation.

Other recent cases show that the outcome established by Payne is not inevitable. In November 2007 Lord Justice Thorpe upheld a decision by Mr Justice Coleridge that two boys their mother wished to take to France should remain with their father [3]. The boys had not settled in France and were very unhappy. The mother refused to listen to their objections and had shown “an inability to recognise reality”. On holiday with their father in England they had refused to return; Coleridge rejected the mother’s claim that the father had alienated the boys against her.

In M v H [2008] EWCA 324 (Fam) the crucial factor was the degree to which each parent was willing to promote contact. There had been historic problems over contact and the mother had previously sought to mislead the Court. The father was more likely to promote contact than the mother; the child remained with the father,

I agree with the Guardian and the submissions made on behalf of the mother that the most significant or magnetic factor in this case is which parent would be most likely to promote Sophie’s continuing relationship with and her contact with the parent who is not living in the country where Sophie goes to school and who therefore will spend less time with her.

As a barrister Nicholas Mostyn QC had acted on behalf of a father opposing an LTR application in a case before Lord Justice Thorpe, Re G (Leave to Remove) [2008] 1 FLR 1587. He had argued that Payne was out-dated and heavily criticised, and represented a time when Shared Residence Orders were not commonplace,

The current principles applicable in relocation cases need to be reviewed, as they place an impermissible gloss on the statute; wrongly prioritise one factor above all others (the impact of refusal on the primary carer); are out of step with modern views of the dynamics of family life and of the importance of co-parenting; are inconsistent with the approach taken in many overseas courts, both common-law and civil, and are the subject of serious public criticism, both popularly and by the legal community.

Thorpe rejected these powerful arguments on the grounds that since his 2001 Payne judgement there had not been “a self-evident social shift that requires its reconsideration” (paragraph 14). This is sly: the social shift had occurred prior to 2001 and was on-going; Thorpe was already considerably behind the times.

Mostyn is one of a new generation of judges willing to question the orthodoxy of the past and with sufficient chutzpah to challenge old-school judges. In the case of Re AR (A Child: Relocation) [2010] EWHC 1346 Mostyn refused a mother leave to remove her child to France (the mother was French) and made an order for shared residence instead; he said,

In my view (for what it is worth) a review of the ideology of Poel/Payne by the Supreme Court is urgently needed, where the "emerging body of significant research in various jurisdictions" would be brought into account.

Mostyn’s use of the word “ideology” is significant. He was critical of Thorpe’s judgement in Payne which was itself a reiteration of principles laid down in Poel which was founded in the dogma that a child should have only one custodial parent or primary carer.

Mostyn made it clear that this is an ideological position and is tendentious in the sense that it has created a tendency in which LTR applications are normally granted and the respondent, non-custodial parent is written out of the child’s life (as the father was in Payne).

Mostyn then made an essential point:

Moreover, some argue that [this ideology] promotes selfishness and detracts from the importance of co-parenting. Some argue that on the birth of children parents are indentured to sacrifice throughout their minority, but that the one word that is missing from Payne is, in fact, sacrifice.

Following these cases lawyers warned that by making leave to remove more difficult parents would bypass the legal process and the number of abductions would rise.

Notwithstanding these cases, English and Welsh courts’ habitual position is increasingly out of step with the rest of the world; new legislation in Australia [4], for example, emphasises as a primary consideration “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

Refusal to re-examine Payne is no longer defensible since the UK became a signatory to the Washington Declaration on International Family Relocation which rejects (at paragraph 3) the use of a presumption such as Payne demands. It obliges courts to consider (at paragraph 4(i)) “the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest” and (viii) “the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties”. Mostyn commented in Re AR,

The hitherto decisive factor for us – the psychological impact on the thwarted primary carer – is relegated to a seemingly minor position at the back end of para 4(viii).

This challenge to what has been habitual for so long caused Lord Justice Wilson some concern; in Re H (19th May 2010) he asked,

I wonder whether consideration may need to be given as to whether, if the present law of England and Wales does indeed perhaps place excessive weight upon that factor, paragraph 4 of the declaration, as presently drawn, by contrast places insufficient weight upon it.

Under the Declaration the Court must take into account the impact on the child and his “left-behind” parent of granting leave and must balance this against any detrimental impact on the applicant of a refusal. Failure to balance these conflicting elements, Mostyn said,

appears to penalise selflessness and virtue, while rewarding selfishness and uncontrolled emotions... The parent who stoically accepts that she would accept the decision, make the most of it, move on and work to promote contact with the other parent is far more likely to be refused leave than the parent who states that she will collapse emotionally and psychologically. This is the reverse of the Judgment of Solomon, where of course selflessness and sacrifice received their due reward.

It cannot be doubted that the principles of Poel and Payne oblige courts to give insufficient weight to the right of a child to maintain contact with half of his family and to the impact on the left-behind parent. In refusing the mother’s application to remove Mostyn observed,

If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases.

Thorpe himself acknowledged (in [2010] IFL 127) that “the case for such a shift (from the principles laid down in Poel) is not difficult to articulate” and that for England and Wales to adopt the Declaration “would represent a significant departure from the principles that our court has applied consistently” since Poel.

It is relevant finally to repeat Thorpe’s own warning that the assumptions upon which family law decisions are based should regularly be re-evaluated,

Very few family law decisions that are ‘principled’ decisions have a shelf-life of more than one generation. Most principles in family law are actually founded upon social policies or social assumptions made by the judges. Those assumptions as to child development or child help have to be reviewed from time to time.

[1] Lord Justice Thorpe, Relocation: the search for common principles, speech delivered to the London Metropolitan University, 30 June 2010

[2] Nigel Lowe, International Movement of Children, Jordan Publishing Ltd, 2003

[3] Frances Gibb, Judges back two British boys who refuse to live in France, The Times, 08 November 2007

[4] Family Law Amendment (Shared Parental Responsibility) Act 2006