Leave to Remove and the Payne Discipline – Breaking the Impasse

In this two-part article Richard Gregorian and Gavin Emerson of Gregorian Emerson Family Law Solicitors explain the difficulties they perceive with the arguments relied on by critics of Payne v Payne and why the focus in defending these critically important proceedings should be on ensuring due process. The second part of the article will appear next week.

This article was originally published before the Court of Appeal gave judgment in K (Children) [2011] EWCA Civ 793. For the judgment in that case, click here, and for an article, written by Andrea Watts of 1 King's Bench Walk, providing an analysis of the judgment, click here.This article has been revised to take account of the judgment in K (Children). Payne v Payne: here to stay?
Over recent months, a great many column inches have considered the extent to which reported precedent represents a change in the judicial approach to leave to remove cases involving the international relocation of children.    Lobbyists for a change seize upon any expression of judicial discontent with the present law (often referred to as the "Payne discipline" [1]) as vindication of their prolonged calls for change and chastise the judiciary and the family justice system for having got the law "wrong", thereby causing decades of irreversible emotional and psychological damage to the children and families who are the subjects of these cases.Judicial reminders of the applicability of the Payne discipline are met with accusations by many that the law is based on an antiquated belief system regarding paternal involvement in their children's lives and adopts a patriarchal view of mothers through the "distress argument" (that is, the negative emotional and psychological effect on the mother of being refused her emigration wishes and the likelihood of this affecting her future parenting).  In the vast majority of cases, the mother is the applicant parent wishing to emigrate with the child(ren) of the marriage/relationship and the father is the respondent opposing the relocation. This is reflected in the terminology adopted in this article though the points apply equally to whichever parent makes the application or defends.  In certain quarters, there is (unjustified) talk of a judicial conspiracy and closing of ranks.  Indeed, in W (Children) [2011] [2] Sir Nicholas Wall, the President of the Family Division, felt it necessary to include a postscript to his judgment clarifying a simple truism he stated as a Lord Justice in Re D (Children) [2010] [3], which he believed was being misinterpreted and overplayed by critics of the Payne discipline [4].  In Re D, the President acknowledged that there may be a case where a respondent father who had been unsuccessful at first instance in defending leave to remove, could obtain permission to appeal on the basis of there being a "compelling reason why the appeal should be heard",[5] because "there is a perfectly respectable argument for the proposition that [Payne v Payne] places too great an emphasis on the wishes and feelings of the relocating parent and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent" [6] (albeit in W (Children) he accepted the criticism of Lord Justice Wilson in Re H (A Child) [2010] [7] of the use of the word "ignores").  In refusing the father permission to appeal in Re D (Children) and, therefore, ultimately a possible review of the Payne discipline by the Supreme Court, it was doubtless a factor (albeit not expressed), that it would not help the debate for any review to be conducted in a case where the father would, in all likelihood, be unsuccessful in his opposition as the mother's application was considered "powerful", even leaving to one side the distress argument [8].  Further, the fact that the father conceded that if consent was given he would follow the children to Slovakia (even if subject to pre-conditions), the question as to whether he had told the children they were relocating and the fact that CAFCASS's recommended psychological assessment of the mother was not considered until the final hearing would have attracted judicial focus in any future retrial.  In K (Children) [2011] EWCA Civ 793, Thorpe LJ believed that the increased opportunities for mobility by fathers was a relevant factor in determining these cases - and, whilst not made explicit, a factor in favour of granting permission.In fact, in Re D it is our opinion that the President was simply acknowledging the recent increased focus on the two competing, but mutually exclusive, truisms in leave to remove cases: that it is in a child's best interests to have an emotionally and psychologically functioning primary carer and that, typically, two parents (even if separated) are better than one in providing for a child's emotional, educational, practical, financial and other needs.  Notably, the President did not answer the question he posed in that case "has the time come to reconsider Payne v Payne" [9] and still less offered any opinion on whether the Supreme Court would or should effect a  change in law on any case which came before it. Those critics who accuse the President of performing a "U-turn" in W (Children) [2011] fail to acknowledge that in that case (which, as with all cases, was decided upon its facts) the "purity" of the contest between the two mutually exclusive truisms was somewhat contaminated because the children, aged 12 years and 8 years, were excited about relocating to Australia where the maternal immediate and extended family lived, the father's relationship with the children was "embryonic" and in its "honeymoon period", the father had very little visiting contact prior to the commencement of the litigation, and in the context of contact disputes, historically, had not made any court applications.  Furthermore, he did not have parental responsibility, had very significant housing issues and there were maternal allegations that the children had suffered harm due to the father's alcoholism and lifestyle.  Consequently, the Court of Appeal's decision in W (Children) confirms that, without intervention by the Supreme Court or Parliament, the most heavily criticised aspect of the Payne discipline, ie. the maternal distress argument, still remains a "very important consideration"  in these cases but, for the reasons discussed in the second part of this article, by no means the conclusive one [10].   [Indeed, K (Children) confirms that the Payne discipline remains good law so far as primary carer cases are concerned and, indeed, because of Payne's recognition of the overriding importance of the paramountcy principle, good and binding law in all leave to remove cases.  K (Children) simply considers the application of Payne v Payne and, in particular, the Payne discipline summarised in paragraph 85 of that judgment, in cases of shared parenting, where some or all of the Payne discipline may, depending upon the extent of shared parenting, carry less weight.  That distinction had already been made, albeit expressed in terms of "residence", by Dame Elizabeth Butler-Sloss' in paragraph 86 of Payne and by Hedley J in Re Y [2004]  2 FLR, 330.  It should also be remembered that the father in Payne had 40% of the overnights, which is at the higher end of shared parenting (a term which is not legally defined).In our view, the decision in K (Children) does not turn upon the niceties of legal terminology to effect a separation of cases into "Payne (sole residence order-primary carer)" and "non-Payne (shared residence order-nonprimary carer)" and thus into two distinct lines of judicial authority, particularly where the distinguishing point is exact 50-50 parental care as Thorpe LJ seems to imply.  Rather, whilst not made explicit, in our view, what unifies these cases is the amount and quality of the shared parenting in the context of its potential for directly and/or indirectly undermining the maternal distress argument in any given case (as well, of course, as the other facts of the case viewed through the principle of the paramountcy of the child's best interests).  Accordingly, we prefer Lady Justice Black's analysis in K (Children) that Re Y (a leave to remove case involving an informal shared care arrangement in which the father had nearly 43% of the overnights) does not represent a different line of authority from Payne (a leave to remove case typically referred to as a "primary carer" case where the mother has a residence order but the unsuccessful father also enjoyed shared parenting with 40% of the overnights) as did Thorpe LJ.  Rather, in her view Re Y is a decision within the framework of which Payne is part.  After all, exactly what percentage of shared care has to exist to negate the status of primary carer, making reliance upon Payne a misdirection as to the law particularly where a "sole" residence label is not inconsistent with the concept of shared parenting.  By way of illustration, there will still be cases where maternal distress is considered of great relevance where parenting is shared exactly equally, albeit in all likelihood it will carry less weight in the context of the other factors than where the mother is a clear primary carer. It is worth reciting verbatim paragraph 145 of the judgment in K (Children) in which Lady Justice Black sounds a note of caution against any further parodying of the Payne discipline and Re Y in light of K (Children) and the greater incidence of shared residence orders and shared parenting arrangements: 

 "Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application.  The ways in which parents provide the care of their children are, and should be, infinitely varied.  In the best of cases they are flexible and responsive to the needs of the children over time.  When a relocation application falls to be determined, all of the facts need to be considered."

Problems in the critics' argument
The critics demand that in contrast to the "top-down" or "adult-centric" approach they argue is inherent within the maternal distress argument, leave to remove applications, if granted at all, should be determined by a "bottom up" or "child-centric" approach, which gives more weight to the "two parents are better than one" argument.  They argue that whilst there is an abundance of governmental and other research material on the educational, psychological, economic and social impact of depriving the child of paternal involvement, there is no corresponding evidence to support the distress argument.  Such an argument not only overstates the importance of such research evidence but makes such critics' argument a hostage to fortune for the following reasons:

(a) Whatever legal approach is adopted, the distress argument would and should feature as an important consideration in determining the child's best interests and, indeed, it does in both the Washington Declaration on International Family Relocation and the Conclusions and Resolutions of the conference organised by the Centre for Family Law and Practice of the London Metropolitan University both of which occurred in 2010 and are frequently cited in support by critics of leave to remove law. K (Children) is not authority for the proposition that the distress argument no longer applies either to the situation of a primary carer applicant or where the mother and father share care of the children (even on the basis of 50-50 care), a state of affairs which Thorpe LJ acknowledged had become increasingly common.  Indeed, paradoxically it may be that mothers, seeking to fully and thoroughly present their case in the aftermath of K (Children) (a case which reminds practitioners the only legal principle in Payne is the paramountcy principle) are encouraged to obtain expert psychological advice to ensure that their "theoretical" maternal distress is made "actual" in the court room. (b) If, as we suggest, courts adopt the practice of requiring expert psychological evidence in support of the distress argument, the vacuum of psychological evidence (which the critics are currently filling with necessarily generalised research evidence) will be met and, in our view, fatally degraded by sworn expert evidence relating to the specific maternal distress in individual cases.  Even Mr Justice Mostyn, the current doyen of the critics of the distress argument following his decision in Re AR (A Child: Relocation) [11], justifiably conceded that the effect of maternal refusal, if not invariably, then frequently, would cause considerable trauma [12].  Further, since the court's approach to assessing the extent of maternal distress is in significant part a process of making inferences from the surrounding circumstances, the distress argument connects with the merits and presentation of the case [13] to a far greater extent than is accepted by the critics who simply argue that the distress argument is a one directional (and inexpert) intrusion by the legal profession into the realms of psychology.(c) The judiciary are already aware of the potentially uncorroborated and self-serving nature of evidence adduced by mothers in support of the distress argument and, frequently, in direct questioning of the mother, they seek to penetrate the sincerity of the inevitable expressions of "utter devastation" at the prospect of their application for leave to remove being refused. (d) Adducing research evidence inevitably devalues the judicial function and diverts attention from presenting the best case on the facts before the court, in some of the ways which are explored in the second part of this article.  For example, in W (Children) [2011], the President clearly indicated that the devaluation of the legal system by the father, which led to him failing to make any applications for contact over many years of difficulties (even though on the occasions he did he was fully supported by the court and the mother respected the contact order) on the ostensible grounds that he felt wholly disempowered by the family justice system, had ultimately become a self-fulfilling prophecy [14].  It is clear that this father, in common with many in his situation, experienced significant amounts of learned helplessness as a result of the litigation process – something which in our experience can be overcome through a combination of a strategic legal representation with a clear psychological understanding of the client and his case.(e) Very significantly, there is an abundance of empirical research which would support the child centricity of the Payne discipline in that the existence of mental health difficulties in the primary carer which underpins the distress argument, are predisposing factors for negative outcomes for the children of such parents.  (f) The "Holy Grail" of research evidence desired by critics to the effect that leave to remove leads to negative outcomes for the children involved (even if a matter of "common sense") will, in all likelihood, not be forthcoming.  The existence of such research was clearly seen as fundamental to the President in W (Children) [2011] in justifying any change in approach to relocation law [15].  Quite apart from the usual statistical and methodological criticisms directed at research evidence, a positive result for the critics would involve the children affected, upon attaining maturity, to acknowledge that they had been emotionally and psychologically impaired by their experience.  Such an acknowledgement would challenge the very heart of the individual's belief and coping systems (essentially that they are functioning human beings) and, therefore, would be avoided as it could possibly cause massive destabilisation in the individual's life. 

Accordingly, it is no surprise that in W (Children) [16], the President referred to an article written by Professor Marilyn Freeman based on her extensive research into relocation which concluded with the words: "So we have much work to do.  We need to know, firstly, what impact relocation has on the relocated child and, in particular, about children's resiliency in these circumstances.  From here, we will need to have the basis for international law to do what it says on the tin: to work in the best interests of the children the law seeks to serve."  The Washington Declaration and the London Conference organised by the Centre for Family Law and Practice, London Metropolitan University both recognised that additional research in the area of relocation was "necessary to analyse trends and outcomes in relocation cases".  (g) The research which is relied upon by critics of leave to remove focuses on the links between an absence of paternal involvement and psychological, educational, social and economic impairment of children.  However, such research in the context of leave to remove makes no distinction between a total absence of contact, different amounts/frequency of contact, the degree to which these outcomes would have occurred in any event in the parental separation without any international element, and the emotional, psychological and socio-economic circumstances of the families the subject of such research, which may be very different from those families involved in leave to remove.  Such research, therefore, simply supports the truism often quoted by the media, academics and the judiciary alike, that many of society's ills are caused by 'Breakdown' or rather 'Breakup Britain'.  (h) Judges do not require any research based persuasion that two parents are better than one.  However, daily they are faced with the emotional, financial, educational and developmental issues which affect children following separation.  Further, the critics' accusation that there is, through the distress argument, a gender bias in leave to remove in favour of the mother has, in reality, more to do with society's continued preference for maternal child-rearing than any illogicality in the proposition that the primary carer should be emotionally and psychologically functional.  Such preference continues to reflect a society where, notwithstanding, as its critics claim, gender related patterns of parenting have shifted over the last 40 years, the fact that exact shared parenting and therefore a diminution in the importance of the distress argument will be a rarity until flexible, technologically based work patterns become the norm and financially affordable for families. Indeed, it should be noted by those critics who may seek to rely upon K (Children) as authority for undermining the importance of the maternal primary carer label in leave to remove cases through the distress argument, that although the father in that case only had contact with the children for 5 nights in every 14 day cycle, due to flexible working arrangements he did in fact spend 6 consecutive days with his children, meaning that in addition to benefiting from a shared residence order his parental care was not inferior to the mother's. 

Problems in the critics' solution
Critics attack the Payne discipline as judge-made law which conflicts with the paramountcy principle and welfare checklist in Section 1 of the Children Act.  However, as the President acknowledged in W (Children), Payne v Payne merely emphasises the importance of certain factors in determining where that welfare lies.  According to the President, for there to be any change in relocation law, there would first have to be an answer to Professor Marilyn Freeman's questions (see above) and a different test to the paramountcy principle set out in section 1 (1) of the Children Act 1989.  In the same case, Lord Justice Elias remarked that since the overriding principle in a leave to remove case is whether or not relocation is in the best interests of the children – a principle which Payne v Payne "does not and could not undermine" [17] unless there is cogent evidence that Payne v Payne is inconsistent with the paramountcy principle – then the matter would have to be left to Parliament or the Supreme Court. In K (Childen), all of the Court of Appeal judges emphasised that the only legal principle to be extracted from Payne is the paramountcy principle.  The much quoted paragraphs of Thorpe LJ (paragraphs 40 and 41) and Dame Butler-Sloss (paragraphs 85 and 86) are simply guidance as to the factors to be weighed in search of that principle.  Whether that guidance is equivalent to a statutory checklist, as Thorpe LJ states, will doubtless attract further debate.  In K (Children), Lady Justice Black acknowledged that the paramountcy principle in leave to remove cases was reflected in the pre-Children Act 1989 era, in section 1 of that Act and in Thorpe LJ's judgement in Payne v Payne.Lord Justice Wilson emphasised in H (A Child) [18] that the Court of Appeal is well aware of the domestic and international criticisms of the Payne discipline but urged caution of "endorsing a parody of the decision", stressing that the paramountcy principle was always the primary consideration. In K (Children), Moore-Bick LJ also cautioned against interpretations of Payne v Payne which were based upon a parody of that decision.The critics frequently refer to the Washington Declaration on International Family Relocation (March 2010).  However, the paramountcy principle and the non-exclusive, non-presumptive guidelines to judicial discretion not listed in any order of priority which, the Declaration states, should be taken into account in determining such cases, are already familiar to practitioners in this area.   The most significant factor relied upon by critics in that Declaration – "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" (italics added) – simply leads to the current impasse of whether (in its crudest sense) two parents or a psychologically functioning primary carer are in the child's best interests, so far as securing his or her needs.  Of course, it is welcome that in this factor, the Declaration acknowledges the effect on fathers – equally crushing of leave to applications – but that simply encourages another debate about whether any law based on the Declaration is too adult centric (this time in relation to the parent left behind,  which would be met with the obvious counterargument that the impact on the child of any paternal distress following leave to remove would be ameliorated through the geographical distance caused by the emigration ).  The difficulties of formulating any new law in this area which would address the critics' dissatisfaction is also evident in the Conclusions and Resolutions of last year's London conference, organised by the Centre of Family Law and Practice, of 150 leading family law specialists, psychologists, academics, researchers, mediators and support groups and government representatives from 18 jurisdictions.   Notwithstanding the immense intellectual resource and experience brought to bear on the question, those Conclusions and Resolutions merely endorsed the Washington Declaration, emphasised that the paramountcy principle should be the primary consideration, that there should be no presumption for or against relocation, and that the children's views should be canvassed – all of which are already part of English leave to remove law.  Every case is different
It has always been a mistake to approach leave to remove cases, as they often are, as a contest between the distress argument and the 'two parents are better than one' argument.The creeping commoditisation represented by litigation checklists and evidential templates produced in certain quarters is the bare minimum required by a parent whose application or defence will have life changing consequences for both the child in question and him or herself.  It is a mistake to believe that provided the boxes have been ticked in relation to challenges to the applicant's plans for accommodation, schooling, contact and parental involvement, that this represents the father's best case.  As Dame Elizabeth Butler-Sloss held in Payne v Payne, "[The Payne considerations] are not and could not be exclusive of the other important matters which arise in the individual case to be decided.  All the relevant factors need to be considered, including [the Payne considerations], so far as they are relevant, and weighed in the balance."  The President in W (Children) acknowledged that all relocation cases are "highly fact specific and very difficult" [19] and "[the Payne discipline] is not, of course, a numerical question.  Each case turns on its own facts, and the weight to be given to various factors will change from case to case." [20] The uniqueness of each case and, therefore, the infinite degrees of weight to be attributed to any particular factor in the Payne discipline to a given case, was also emphasised by Lady Justice Black and Moore-Bick LJ in K (Children).  The court in Payne v Payne had not intended to suggest otherwise.Indeed, in the authors' collectively extensive direct professional and anecdotal experience, in determining leave to remove applications, in the absence of special factors such as the (sufficiently mature) wishes of the children involved or serious concerns over the applicant's parenting capacity, judges are as concerned about the applicant's capacity for competent parental decision-making and resourcefulness as whether their emigration plans are flawless. Parental planning is not a science and, indeed, the courts recognise particularly in "going home" cases, [21], that the applicant parent will, to a degree, be permitted the latitude to "work things out" when they arrive back in their country of origin as they did, albeit perhaps without the responsibilities of parenthood, before they left that country to live in the UK.  Likewise, where the reason for emigration is to further a new relationship, the presence of a second mature decision maker is, in all likelihood, not going to result in the outcome of the case turning on a faultlessly presented emigration plan.Neither, in our experience, are the courts as constrained by the distress argument as perhaps the vociferousness of the critics of the Payne discipline may indicate.  Each case has the potential to be taken on its merits, provided that those merits are not clouded by the presentation of immaterial and stereotypically bitter allegations and counter-allegations, which may simply encourage the judge to seek refuge in the certainty of Payne and maximise the inevitably unique characteristics of each case. It follows from our view that rather than representing different lines of legal authority, Payne, Re Y and K (Children) can all be explained in the context of the potential dilution of the mother's distress argument by the supportive function of the father's substantive shared care/equal parenting, that the quality of such paternal support is also important.  This is another reminder to fathers to avoid approaching their defence on the basis of allegations and counter-allegations.   There are certainly cases where the mother's distress argument, albeit genuine and convincing, has been minimised to support a refusal (an observation which, since it is based largely on oral testimony, is very difficult to appeal).  Likewise, there will be cases where a mother who fails to express the much voiced "utter devastation" at the prospect of refusal is given consent where the "life plan" for emigration outweighs the effect of the status quo for the child.  Time and again, where respectable emigration plans have been presented by the mother and there is no question of malice towards the father but there is the existence of questionable parental decision-making, falling very short of a formal psychiatric disorder, judges have possessed the discretion to refuse such applications. Whilst, an interesting dynamic to observe in court, it is only a manifestation of the paramountcy principle.  As K (Children) has highlighted, maternal distress is not the trump card perceived by the critics, unless its perceived importance (through a parodying of the Payne discipline) has the effect of distracting away from the best presentation of the father's other points.Room for improvement
Undoubtedly, however, there are areas where the process of deciding leave to remove applications can be improved.  Three years on from those suggestions in another article published in Family Law Week: "Leave to Remove: a Lawyers (all too personal) view"

• in the absence of any specific psychiatric or psychological reason for such an assessment, the applicant's distress argument is typically still not the subject of any independent professionally qualified mental health assessment. As previously stated, such an assessment may harm, rather than support a father's defence;• even where there are high levels of acrimony and historic contact obstruction, beyond the reporting of the overworked and under resourced CAFCASS, and even where private funding would be available, it is not usual for there to be appointed an independent social worker to conduct a full parenting assessment.  This is particularly important where such reporting may offer a more tangible understanding of the applicant's motives and parenting than an understanding of their distress argument;• in the absence of any specific psychiatric, psychological or developmental need, beyond the CAFCASS involvement there is typically no independent representation or assessment (in the latter case for example by a child psychologist) to focus on the child's needs so far as the effect of leave to remove on them.  This is perhaps unsurprising due to the current inclination towards the "top down" approach but such a development would at least acknowledge the critics' argument of "unhappy child, unhappy loving (emigrating) parent" – the reverse of the "happy mummy, happy child" label which Payne attracts.

We discuss in the second part of this article, a range of procedural and evidential matters which emphasise the importance of due process in leave to remove cases (and other areas of disputes involving children).
_____________________________________Footnotes
1 - Payne v Payne [2001] EWCA Civ 166 is regarded as the seminal case.
2 - EWCA Civ 345
3 - EWCA Civ 50
4 - paragraph 128 of the judgment of the President of the Family Division in W (Children)
5 - under rule 52.3 (6) of the Civil Procedure Rules which applied at the time, permission to appeal could only be given where either the court considered that the appeal would have a real prospect of success or there was some other compelling reason why the appeal should be heard.  The corresponding provision can be found in rule [   ] FPR 2010.
6 - paragraph 33 of the judgment in Re D (Children).
7 - EWCA Civ 915
8 - paragraph 35 of Lord Justice Wall's judgment in Re D (Children)

9 paragraph 34 of Lord Justice Wall's judgment in Re D (Children)
10 - paragraph 103 of the judgment of the President in W (Children) [2011]
11 - [2010] EWHC 1346
12 paragraph 4 of the judgment in Re AR (A Child: Relocation)
13  - paragraph 23 of Lord Justice Wilson's judgment in R (A Child) [2010] EWCA Civ 1137 
14 paragraph 107 of the judgment of the President in W (Children)
15 - paragraph 129 of the judgment
16 - paragraph 108 of the judgment of the President in W (Children)
17 - paragraph 160 of the judgment of Lord Justice Elias in W (Children)
18 - paragraphs 21 to 23 of the judgment in H (A Child) [2010] EWCA Civ 915
19 - paragraph 5 of his judgment
20 - paragraph 117 of the judgment of the President in W (Children)
21 - Re F and H (Children) [2007] EWCA Civ 692