18 April 2011, by Taylor King Family Law Solicitors
In Re W (Children)  EWCA Civ 345, the Court of Appeal heard an appeal by a mother who had been refused permission to relocate the children to her home country Australia. The case brings up the debate on leave to remove and the extent to which the court should take into account what the parents want, rather than what is in the best interests of the children.
Payne v Payne  EWVA Civ 166
Payne concerned a mother’s application for permission to relocate with the 4-year-old child to New Zealand. The father had opposed the move. Thorpe LJ determined that “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.” Readers were understandably confused when His Lordship later spoke of his regret of the use of the term ‘presumptions’ in these cases . Surely granting leave to remove unless incompatible is a presumption in favour of the relocating parent.
Thorpe LJ posed a ‘discipline’ designed to protect cases from a presumption in favour of relocation. This essentially, asks whether the resident parent’s proposals are genuine (as opposed to malicious), whether the plans are realistic (i.e. well planned) and whether the non-resident parent’s objection is genuine (as opposed to malicious). It also asks “what would be the impact on the mother … of a refusal of her realistic proposal” and then subjects the entire assessment to “an overriding review of the child’s welfare as the paramount consideration”.
Criticism was aimed at the reasoning Payne on the basis that it considered in too much detail the wishes and feelings of the relocating parent, when only the welfare of the child should be considered. To be compatible with the welfare test, we would have to accept an assumption that a refusal to relocate would annoy or upset the resident parent so much that this would affect the welfare of the child. At the same time, the non-resident parent’s wishes or feelings count for nothing: they can only argue against relocation based on a genuine concern for the child’s welfare.
The criticism aimed at this way of interpreting the welfare test is best captured by the following passage (Hayes and Williams, Family Law – Principles, Policy and Practice; Butterworths, 1995):
“the courts have been too ready to indulge the selfish feelings of mothers and second husbands [by granting them] leave to take the children of a previous marriage out of the jurisdiction … a parent and step parent are not entitled to feel bitter … if they cannot live in the country of their choice … these … are self indulgent emotions which [generally] should not be countenanced by the courts”
Lord Justice Wall
In February 2010, in Re D (Children)  EWCA Civ 50, Wall LJ commented: ‘There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.’ His Lordship went on to say, ‘this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.’
When Sir Nicholas Wall was appointed President of the Family Division in April 2010 it was hoped by some that his opinion in Re D (Children) would have a good prospect of being furthered. In August 2010, in an interview with the Family Law Bar Association (reported FLBA  Family Affairs 49 and retrieved http://www.familylaw.co.uk/articles/Sir-Nicholas-Interview-120810), he repeated verbatim his comments in Re D, adding that it would be up to the government to change the law or the Supreme Court to reconsider the issue in the appropriate case.
However, recently in Re W, Wall LJ appeared to resile from the prospect of the Supreme Court reviewing Payne at all:
“I fear that too much weight may have been given to some words of mine spoken in a judgment which I gave in an application to this court for permission to appeal in a relocation case. Whilst I do not resile from most of what I have said, I am of the clear view that undue prominence has been accorded to Re D
“Wilson LJ in Re H (A Child)  EWCA Civ 915 rightly criticises my use of the word “ignores”, which I retract. It further occurs to me that unless and until we have the research identified by Professor Freeman, and unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Payne v Payne.”
His Lordship appears to be suggesting that Payne is a correct interpretation of Section 1 of the Children Act 1989 (i.e. the welfare test) and that any unfairness can only be remedied by a change in the statutory test. This cannot be right: the welfare test is the statutory safeguard, the manner in which it is interpreted has been a decision by the courts. The Court of Appeal decided Payne, and it is open for the Supreme Court to decide whether that decision was correct.
Sir Nicholas retracted the use of ‘ignores’ based on Wilson LJ’s comments in Re H (A Child)  EWCA Civ 915, but neglects to mention that Wilson LJ agreed with the general sentiment of Re D, where he said “there is at any rate a respectable argument for the proposition that it inappropriately ‘relegates’ such harm to a level below that of the harm likely to be sustained by a child through the negative impact upon the applicant of refusal of the application.” That is to say, Wilson LJ agreed that the perceived ‘harm’ to the child caused by not relocating was taken more seriously than the perceived ‘harm’ to the child caused by severing contact with the non-resident parent.
Sir Nicholas thought that “too much weight” and “undue prominence” had been given to Re D. He does not explain why, however. Re D was a considered judgment that was handed down almost a month following the hearing. His Lordship’s reiterance of Re D to the FLBA came 3 months after Wilson LJ’s judgment in Re H. An expression of his motivations would be extremely useful to practitioners giving advice in relocation cases, especially where an appeal is being considered.