Re D (Children) [2010] EWCA Civ 50: Leave to Remove/International Relocation

This case has attracted a lot of attention as it was viewed by critics of leave to remove as containing admissions by the judiciary, in this case Lord Justice Wall, now the President of the Family Division that the judges had got leave to remove wrong in Payne V Payne and subsequent cases which followed that very important Court of Appeal authority.

The case was before a single Lord Justice rather than a full appeal court as the father was seeking permission to appeal a decision from the Luton County Court which consented to his 2 sons relocating to Slovakia, which the Lord Justice denied him on the basis that a full appeal stood no prospect of succeeding.

It demonstrates the pointlessness at 1st instance or Court of Appeal stated of adopting a strategy of attacking Payne v Payne, still less. Whilst the Lord Justice acknowledged that a perfectly reasonable argument could be made for accusing Payne V Payne of putting the distress argument before the two-parent is better than one argument, that argument is circular. It is circular because both maternal distress at being refused and the loss of the relationship with the parent left behind are both factors the court takes into account already. Both are commonsense factors. Both feed into the child’s best interests (or paramountcy principle). Mothers will be disappointed and commonsense dictates that will impact the child. The loss of the 2nd parent commonsense will impact the child.

Those who criticise Payne can do so because they have the additional information, government and educational research to feel the evidential vacuum left by these 2 truisms (both of the above truisms are not subject to specific or expert evidence in individual cases). No such research exists in relation to the maternal distress. The problem for such critics is when they drag such opinion evidence into court in challenge of Payne V Payne in circumstances where

-          unlike the research evidence, the maternal distress is specific to the case, tangible and available for all to see in sworn testimony
-          the challenge frequently presents the father as lacking depth to his opposition. Attack the law, and attacking the mother's plans is the type of negative/aggressive dialogue prone to have the judge switched off and/or believe that such attacks belie and are the reason for a weak defence.

As with all forms of human interaction-the application of judge-made law or not-better to align oneself with the law for challenging it. Given the right strategy, methodology and case building in my experience, judges do not make the type of polarised judgements in favour of an applicant mother just because she is weeping in the witness box and claiming to be "utterly devastated" at the prospect of being forced to stay in the jurisdiction (as the stereotype goes).

The task of the permission to appeal hearing effectively was to decide whether this case either had a real prospect of success at appeal (which was held it did not) or there was some other compelling reason why the appeal should be heard. The case was decided by Lord Justice Wall in the negative on both issues.

The learned judge did however say that (i) there was a reasonable argument for holding the view that Payne versus Payne put too much weight in favour of the maternal distress argument-that the applicant, usually the mother, would be so upset and distressed at being refused her emigration wishes that her parenting would impact the child and that the super ordination of that issue above the child’s interest to have a two-parent childhood which would be the result of refusing a leave to remove application (ii) a suitable case may provide a compelling reason for an appeal to be heard on those grounds.

It is clear that since Lord Justice Wall did not believe that this particular father on the facts of this case would have succeeded at appeal. Accordingly the only legal ground for permitting the case to progress to appeal would be to act as a gateway to the Supreme Court which could, whichever way the case finally was determined, could reanalyse the Payne V Payne discipline.

In not permitting the case to be used as a test case the judge was making a clear statement that if they were to be a change in law it should be defensible as a matter of general application without the vulnerability that the idiosyncrasies of this case would provide. Of course one could ask the question does it really matter what type of case is elevated to the Supreme Court provided it is a relocation case where the tension always exists between the child's best interests in having a functioning primary carer who is not so upset that she cannot look after the child and the obvious best interest of the child to have a two-parent childhood. Some doubt therefore exists whether even if this was not the case to reassess Payne V Payne that it was a sufficient case to do so. Ultimately, the learned judge must have taken the view that for the father to ultimately fail in preventing his children from leaving the country even though the Supreme Court established a more father friendly application of leave to remove law (by preferring the 2 parents are better than one over the maternal distress argument) would itself be rather idiosyncratic.

The loss of the case by the father may have had much to do with his admission that if the mother were allowed to relocate with the children he would himself go on live in the country. Indeed one has to question the strategic framework which led to that admission which would take a great deal of pressure off the judge in permitting emigration and the fact that it was only at the final hearing that the judge considered with a psychological assessment would be needed for the mother - a psychological assessment which had the benefit of a CAFCASS recommendation. That is too late. Any psychological issues should have been formulated and prosecuted earlier.

This case has been overplayed by critics of Payne V Payne. Lord Justice Wall simply accepted that it was reasonable to argue that the maternal distress argument (in the sense of the applicant mother being so distressed by their refusal of her application that it would impact the child) had been given too much weight in Payne V Payne as against the child's interests of growing up with 2 parents in the same country. That is not news. These 2 conflicting factors are both truisms but are not sustainable in leave to remove. He refused to answer the question he himself posed -whether the time had come to reconsider Payne V Payne in the context of whether a reconsideration of the law was a compelling reason for granting permission to appeal to the father in this present case. It was quite clear from the judgement that even without reliance on the maternal distress argument that the facts of the case the judge felt it had no prospect of succeeding as the applicant mother had made a powerful case relocation. Undoubtedly, the fact that the father had confirmed he would also relocate if the mother was given permission to relocate, had told the children that they would be relocating after the 1st instance decision and the court was not asked to consider the suitability of a CAFCASS recommended psychological assessment on the mother contributed to Lord Justice Wall’s assessment of the prospects of the father succeeding in his appeal.

20 May 2011