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In re H; CA 19 May 2010

References: Lawtel 19-May-2010
Coram: Wilson LJ
Wilson LJ considered a declaration on International Family Relocation from March 2010 in Washington and said: ‘In that the principal charge against our guidance, as it stands, is that it ascribes too great a significance to the effect on the child of the negative impact upon the applicant of refusal of the application, one is interested to discern the way in which, in [4] of the declaration, that factor is addressed. One finds (does one not?) that it is not squarely addressed at all. The closest to any address of it is to be found in (viii), namely ‘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’. Some may share my initial perplexity even at the terminology of (viii) in that it appears to train the consideration of the court not only upon impact ‘on the child’ but also, and by way of contra-distinction, upon impact ‘on the parties’ apparently irrespective of impact on the child. It is axiomatic that our notion of paramountcy excludes from consideration all factors which have no bearing on the child. But, that possible curiosity apart, there is no square address in (viii) of the impact upon the child likely to flow from negative impact upon the applicant of refusal of the application. Indeed the reference to the child’s extended family, education and social life, seems almost to draw attention away from such a factor. 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.’
As to the decision in Payne, he said: ‘one must beware of endorsing a parody of the decision. Both Thorpe LJ, at para 26(a), and Dame Elizabeth Butler-Sloss P, at para 85(a), stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration. It is only against the subsidiary guidance to be collected from Payne that criticisms can perhaps more easily be levelled.’
This case cites:

  • Cited – Payne v Payne; P v P; CA (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)
    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.

This case is cited by:

  • Cited – In re AR (A Child: Relocation) FD (Bailii, [2010] EWHC 1346 (Fam), [2010] 2 FLR 1577, [2010] 3 FCR 131, [2010] Fam Law 932)
    Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
    Held: The court pointed to the real difficulties always . .

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