Moving with the times? A new approach in relocation cases
Family
Comment | 29 July 2011
In the recent case of Re K (Children) [2011] EWCA Civ 793 the Court of Appeal reaffirmed that the welfare of the child should be “the paramount consideration” for family judges considering applications by divorced parents to relocate abroad.
The case concerned an appeal by a father against an Order permitting his former wife to relocate to Canada with their two children. The mother was Canadian, the father Polish. They met in Canada in 1992 and later moved to England. They married in 2004 and subsequently had two daughters. They separated in July 2010. A shared residence order was in place and in practice the care of the children was shared almost equally between the parents.
Until now the leading case on this issue was Payne v Payne [2001] EWCA Civ 166, in which the Court of Appeal established guidance which has been applied in a succession of cases since. The Payne guidance directs judges to consider various questions (including the reasonableness and practicalities of the relocating parent’s proposals; the motivations of both parents in bringing and opposing the application respectively; and, the impact of refusal on the parent seeking to relocate and the effect of that on the welfare of the child) and factor these into their decision whilst keeping the child’s welfare as the paramount consideration.
Payne has come in for increasing serious criticism over the last few years for placing too much emphasis on the wishes and feelings of a relocating parent (almost invariably mothers) when assessing a child’s best interests and giving insufficient consideration to the harm done to the relationship between the children and the parent left behind.
In allowing the father’s appeal, their Lordships unanimously agreed that the only principle to be taken from Payne is that the welfare of the child is paramount. The rest is guidance only, to be applied or distinguished depending on the circumstances.
The judgment suggests that in cases where the parent opposing a move abroad has significant contact with their children and genuinely shares care of them, it will be more difficult for the parent proposing to relocate to persuade the court that the relocation is in the best interests of the children. In those circumstances it now seems less likely that judges will grant a relocation order.