Payne -v- Payne, orse P -v- P; – CA – 13-Feb-01 – Thorpe LJ P, Walker LJ, Butler-Sloss LJ (Gazette 08-Mar-01, [2001] Fam 473, Bailii, [2001] EWCA Civ 166, (2001) 165 JP 195, [2001] HRLR 28, (2001) 165 JPN 466, [2001] 1 FCR 425, [2001] UKHRR 484, [2001] 2 WLR 1826, [2001] 1 FLR 1052, [2001] 1 Cr App R 36, [2001] Crim LR 842) – Children – Human Rights
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Held. The move was a serious interference with family life. The motivation of the parent, the reasonableness of the proposal, and the effects on the child were all important and relevant, but the judge had given proper consideration to these factors, and the paramountcy of the child’s interests. Neither domestic case law nor human rights law created any presumption in favour of the applicant. Existing case law was to be reconsidered in the light of the 1998 Act.
Thorpe LJ said: “the advent of the Convention within our domestic law does not necessitate a revision of the fundamental approach to relocation applications formulated by this court and consistently applied over so many years. The reason that I hold this opinion is that reduced to its fundamentals the court’s approach is and always has been to apply child welfare as the paramount consideration. The court’s focus upon supporting the reasonable proposal of the primary carer is seen as no more than an important factor in the assessment of welfare. In a united family the right to family life is a shared right. But once a family unit disintegrates the separating members’ separate rights can only be to a fragmented family life. Certainly the absent parent has the right to participation to the extent and in what manner the complex circumstances of the individual case dictate.”
“In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:
(a) the welfare of the child is the paramount consideration; and
(b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children . .
Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother’s future psychological and emotional stability.”
He continued: “However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent’s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”
Statutes:
Children Act 1989 s. 13(1)(b) European Convention on Human Rights s. 6 s. 8 Human Rights Act 1998
Cases Cited:
Poel -v- Poel CA 1970 ([1970] 1 WLR 1469)
A -v- A CA 1979 ([1979] 1 FLR 38)
Chamberlain -v- de la Mare CA 1983 ([1983] 4 FLR 434)
Lonslow -v- Hennig CA 1986 ([1986] 2 FLR 378)
Moodey -v- Field CA 13-2-1981 (Unreported, 13 February 1981)
Nash -v- Nash CA 1973 ([1973] 2 All ER 70)
Belton -v- Belton CA 1987 ([1987] 2 FLR 343)
Tyler -v- Tyler CA 1989 ([1989] 2 FLR 158)
MH -v- GP (Child: Emigration) FD 1995 ([1995] 2 FLR 106)
Douglas, Zeta Jones, Northern & Shell Plc -v- Hello! Limited (No 1) CA 21-12-2000 (Times 16-Jan-01, Bailii, [2000] EWCA Civ 353, [2001] QB 967, [2001] 2 WLR 992, [2001] EMLR 9, [2001] FSR 40, [2001] 1 FLR 982, 9 BHRC 543, [2001] UKHRR 223, [2001] HRLR 26, [2001] 2 All ER 289, [2002] 1 FCR 289)
Glaser -v- The United Kingdom ECHR 19-9-2000 (32346/96, (2001) 33 EHRR I, [2001] 1 FLR 153, Bailii, [2000] ECHR 418, Bailii, [2000] ECHR 419)
In Re H 1998 ([1998] 1 FLR 848)
In Re L (A Child) (Contact: Domestic Violence); In Re V (A Child) (Contact: Domestic Violence); In Re M (A Child) (Contact: Domestic Violence); In Re H (A Child) (Contact: Domestic Violence); In re L, V, M and H (Children) CA 21-6-2000 (Times 21-Jun-00, Gazette 03-Aug-00, Bailii, [2000] Fam 260, [2000] Fam Law 615, [2000] EWCA Civ 194, [2000] 4 All ER 609, [2000] 2 FCR 404, [2000] Fam Law 603, [2001] 2 WLR 339, [2000] 2 FLR 334)
In re A (permission to remove child from jurisdiction: human rights) CA 2000 ([2000] 2 FLR 225)
In Re C (leave to remove from the jurisdiction) CA 2000 ([2000] 2 FLR 457)
In re E (Minors) (Residence Orders: Imposition of Conditions) CA 30-4-1997 (Times 16-May-97, Bailii, [1997] EWCA Civ 1566, [1997] 2 FLR 638)
In Re KD (A Minor) (Ward: Termination of Access) HL 1988 ([1988] 1 AC 806)
Johansen -v- Norway ECHR 7-8-1996 (17383/90, (1997) 23 EHRR 33, Bailii, [1996] ECHR 31, ECHR, , Bailii)
Dawson -v- Wearmouth HL 4-2-1999 (Times 26-Mar-99, House of Lords, Gazette 28-Apr-99, Gazette 12-May-99, House of Lords, Bailii, [1999] UKHL 18, [1999] 2 AC 309, [1999] 2 All ER 353, [1999] 2 WLR 960, [1999] 1 FCR 625, [1999] 1 FLR 1167, [1999] Fam Law 378)
L -v- Finland ECHR 27-4-2000 (Bailii, [2000] ECHR 175, 25651/94, Bailii, [2000] ECHR 176, [2000] 2 FLR 118, [2000] Fam Law 536, (2001) 31 EHRR 30, [2000] 3 FCR 219, 31 EHRR 30)
Irene M Scott -v- The United Kingdom ECHR 8-2-2000 (34745/97, Bailii, [2000] ECHR 698, 2000 Fam LR 102, [2000] 1 FLR 958, [2000] Fam Law 538, [2000] 2 FCR 560)
In Re N (Leave to withdraw care proceedings) 2000 ([2000] 1 FCR 258)
In Re A (Adoption: Mother’s Objections) 2000 ([2000] 1 FLR 665)
J -v- C (An Infant) HL 1970 ([1970] AC 668, Bailii, [1969] UKHL 4, [1969] 3 WLR 868, [1969] 3 All ER 1140)
MH -v- GP (Child: Emigration) FD 1995 ([1995] 2 FLR 106)
Cited by:
In re B (Children) (Removal from jurisdiction); In re S (Child) (Removal from jurisdiction) CA 30-7-2003 (Times 29-Aug-03)
In re Auld (Child: Temporary removal from Jurisdiction) CA 4-11-2004 (Times 10-Nov-04)
B (A Child); Re C (Welfare of Child: Immunisation) CA 30-7-2003 (Bailii, [2003] EWCA Civ 1148, [2003] 73 BMLR 152, [2003] 2 FLR 1095, [2003] 2 FCR 156)
In Re G (Children) (Leave to Remove) CA 11-12-2007 (Bailii, [2007] EWCA Civ 1497, [2008] 1 FLR 1587) – Re-affirmed
In re H CA 19-5-2010 (Lawtel 19-May-10)
In re D (Children); BD -v- AID CA 9-2-2010 (Bailii, [2010] EWCA Civ 50)
in Re A (Leave to Remove: Cultural and Religious Consideration) FD 2006 ([2008] 2 FLR 572, [2006] EWHC 421 (Fam))
In re W (Children) CA 28-1-2009 (Bailii, [2009] EWCA Civ 160)
ETS -v- BT; in re T (A child) CA 28-1-2009 (Bailii, [2009] EWCA Civ 20, [2009] 1 FLR 1157, [2009] 1 FCR 584, [2009] Fam Law 294, [2009] 2 All ER 700)
AM -v- IM ScSf 28-6-2008 (Bailii, [2008] ScotSC 37, 2008 Fam LR 90)
AM -v- IM ScSf 28-6-2008 (Bailii, [2008] ScotSC 17)
In re X and Y FDNI 17-8-2005 (Bailii, [2005] NIFam 8)
In re X NIHCM 23-12-2005 (Bailii, [2005] NIMaster 36)
E -v- E CA 27-6-2006 (Bailii, [2006] EWCA Civ 843)
Re M (Children) CA 19-10-2007 (Bailii, [2007] EWCA Civ 1292)
Regina (Howard League for Penal Reform) -v- Secretary of State for the Home Department QBD 29-11-2002 (Times 05-Dec-02, Gazette 16-Jan-03, Gazette 23-Jan-03, Bailii, [2002] EWHC 2497 (Admin), [2003] 1 FLR 484)
In re B & S (Children) CA 30-7-2003 (Bailii, [2003] EWCA Civ 1149)
W -v- A CA 4-11-2004 (Bailii, [2004] EWCA Civ 1587)
Emma R -v- Edward R FD 10-11-2004 (Bailii, [2004] EWHC 2572 (Fam))
In re AR (A Child: Relocation) FD 10-6-2010 (Bailii, [2010] EWHC 1346 (Fam)) – Applied
Tags: Children, Human Rights
