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Payne v Payne – rumours of my death have been much exaggerated

 

But now, it looks as though they are finally correct.

If you aren’t familiar with Payne v Payne, it was a Court of Appeal decision about a mother wanting to leave the country with a child and start a new life abroad. The Court of Appeal had provided a set of questions to be posed

 

“(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…”

 

You can see that those questions drive the Court in many cases to approve the mother moving to say Australia, even though the impact on the child’s relationship with father would be devastating.

 

Payne v Payne would have to go down as one of the least-loved decisions of the Court of Appeal, and occasional efforts are made by the Court of Appeal to backtrack from it – although with difficulty, because it would have needed a Supreme Court decision or a change in statute to do so categorically.

 

The usual efforts have been to create a new category of case to which Payne v Payne doesn’t apply.  And so many Court hearings are taken up with debate as to whether the case before the Court is a  “K v K” case, or a “Re Y” case or a “Payne v Payne” case   (and that taxonomic debate can have a huge bearing on the outcome)

“[60]. There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, “the circumstances in which these difficult decisions have to be made vary infinitely.” This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a “Payne type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.”

 

For almost the entire time that Payne v Payne 2001 has been authority, Judges have been making speeches deprecating it and forecasting that it would be properly overturned.

In the snappily named   Re F (A child) (International Relocation Cases)(DF and NBF) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/882.html

 

The Court of Appeal overturn the decision of a Judge who had followed the Payne v Payne test and posed those questions in the judgment. Not because the case had been wrongly classified as a Payne v Payne rather than K v K or Re Y, but just because the Court of Appeal rule that the proper approach IN ALL Children Act cases is to follow the welfare paramountcy principle as the major factor, with adherence to the guidance given by the Courts in authority cases but never losing sight of the fact that the welfare paramountcy principle is, erm, paramount.

This is one of those cases that we are seeing a lot with the Court of Appeal as it is presently constructed  – the case before it is used as a vehicle to deploy new policy, rather than any real argument that the Judge in a particular case was “wrong”  instead it is the Court of Appeal using a particular case as a method of delivering a binding speech about policy for similar cases in the future.

 

I am not sure how a Judge could be “wrong” in considering, as this Judge did, all of the relevant authorities on relocation, applying those principles and answering within the judgment the questions that Judges are told to ask themselves and answer.   Any Judge could have been unlucky enough to be overturned on this, as the Court of Appeal had just been waiting for a good opportunity to put an end to Payne v Payne.

 

 

43. Reduced to the barest essentials the guiding principles and precepts are as follows. The welfare of the child is the paramount consideration. That is the only true principle. In deciding, in a case such as this, where a child should be located it is necessary for the court to consider the proposals both of the father and of the mother in the light of , inter alia, the welfare check list (whether because it is compulsorily applicable or because it is a useful guide) and having regard to the interests of the parties, and most important of all, of the child. Such consideration needs to be directed at each of the proposals taken as a whole. The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

  1. For the reasons given by my Lord, in the present case the judge’s reliance on the Payne v Payne criteria led her away from carrying out the necessary overall welfare analysis that was needed

 

If you are a proper law geek and you are wondering how the Court of Appeal can strangle Payne v Payne when it was a Court of Appeal decision and stare decisis applies  (i.e the Court of Appeal is bound by Court of Appeal decisions unless the Supreme Court or statute changes), then here is the answer

 

 

  1. The ratio of the decision in Payne was more nuanced in the sense that the questions were always intended to be part of a welfare analysis and were not intended to be elevated into principles or presumptions. Regrettably that is not how they were perceived and the best intentions of the court were lost in translation. The caution expressed by Dame Elizabeth Butler-Sloss P in Payne went unheeded, namely that guidance that had been derived from authorities such as Poel v Poel [1970] 1 WLR 1469 was being expressed in “too rigid terms” and ‘unduly firmly’ with an over emphasis on one element of the case. I respectfully agree with her and with the benefit of hindsight the continued use of the Payne guidance by courts without putting it into the context of a welfare analysis perpetuated the problem.
  2. Furthermore, in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark. The questions identified in Payne may or may not be relevant on the facts of an individual case and the court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it, to which I will return in due course.
  3. The approach which is now to be applied could not have been more clearly stated than it was in Re F where Munby LJ said at [37] and [61]:

    “[37] There can be no presumptions in a case governed by s 1 of the Children Act 1989. From the beginning to the end the child’s welfare is paramount and the evaluation of where the child’s interests truly lie is to be determined having regard to the ‘welfare checklist’ in section 1(3)”

    “[61] The focus from beginning to end must be on the child’s best interests. The child’s welfare is paramount. Every case must be determined having regards to the ‘welfare checklist’, though of course also having regard, where relevant and helpful, to such guidance as may have been given by this Court”

 

 

For those, such as Ian (Forced Adoption) who are not fans of the word ‘holistic’, there’s a bit at the end of the judgment where McFarlane LJ who has inadvertenly popularised the term rather deprecates its overuse (and misuse). He points out that it is not a new or novel creation, but a restoration of the way that the law had worked and decisions HAD been made before a “linear method” had taken hold and moved us away from a proper practice of looking at the whole of the relevant evidence and issues and making a decision that was in the child’s best interests.

 

  1. The word ‘holistic’ now appears regularly in judgments handed down at all levels of the Family Court. This burgeoning usage may arise from my own deployment of the word in a judgment in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2014] 1 FLR 670 where, at paragraph 50, I described the judicial task in evaluating the welfare determination at the conclusion of public law children proceedings as requiring:

    i. ‘a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.’

  2. Having heard argument in this and other cases, I apprehend that there is a danger that this adjective, and its purpose within my judgment in Re G, may become elevated into a free-standing term of art in a way which is entirely at odds with my original meaning.
  3. In the judgment in Re G my purpose in using the word ‘holistic’ was simply to adopt a single word designed to encapsulate what seasoned Family Lawyers would call ‘the old-fashioned welfare balancing exercise’, in which each and every relevant factor relating to a child’s welfare is weighed, one against the other, to determine which of a range of options best meets the requirement to afford paramount consideration to the welfare of the child. The overall balancing exercise is ‘holistic’ in that it requires the court to look at the factors relating to a child’s welfare as a whole; as opposed to a ‘linear’ approach which only considers individual components in isolation.
  4. Reference to ‘a global, holistic evaluation’ in Re G was absolutely not intended to introduce a new approach into the law. On the contrary, such an evaluation was put forward as the accepted conventional approach to conducting a welfare analysis, as opposed to a new and unacceptable approach of ‘linear’ evaluation which was seen to have been gaining ground.
  5. In the context that I have described, it is clear that a ‘global, holistic evaluation’ is no more than shorthand for the overall, comprehensive analysis of a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist [CA 1989, s 1(3) or Adoption and Children Act 2002, s 1(4)]. Such an analysis is required, by CA 1989, s 1(1) and/or ACA 2002, s 1(2) when a court determines any question with respect to a child’s upbringing. In some cases, for example where the issue is whether the location for a ‘handover’ under a Child Arrangements Order under CA 1989, s 8 is to take place at MacDonalds or Starbucks, the evaluation will be short and very straight forward. In other cases, for example a case of international relocation, the factors that must be given due consideration and appropriate weight on either side of the scales of the welfare balance may be such as to require an analysis of some sophistication and complexity. However, whatever the issue before the court, the task is the same; the court must weigh up all of the relevant factors, look at the case as a whole, and determine the course that best meets the need to afford paramount consideration to the child’s welfare. That is what, and that is all, that I intended to convey by the short phrase ‘global, holistic evaluation’.

 

 

 

Note also that whilst Ryder LJ emphasises and endorse the ‘balance sheet’ approach of the Court having a tabular document setting out the pros and cons of each option, McFarlane LJ deprecates that

Finally I wish to add one further observation relating to paragraph 29 of Ryder LJ’s judgment where my Lord suggests that it may be helpful for judges facing the task of analysing competing welfare issues to gain assistance by the use of a ‘balance sheet’. Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.

 

It will not amaze anyone to know that I am firmly with McFarlane LJ on this.  A balance sheet approach can easily distort a case  – you could produce a table that has 2 cons and 14 pros, but the cons could outweigh the pros because of the weight attached to those two things, whereas some of the pros could be fairly trivial in significance. A visual image of a table with 2 cons and 14 pros, however, is going to lead to an impression that the option is desireable and that the balance is firmly in its favour.

 

As the third Judge, Clarke LJ merely says this, in relation to the weighing up exercise

The court also needs to compare the rival proposals against each other since a proposal, or a feature of a proposal, which may seem inappropriate, looked at on its own, may take on a different complexion when weighed against the alternative; and vice versa.

 

the issue of whether Balance Sheets are, on balance, good or bad, remains a live issue to be resolved.

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

3 responses

  1. Two of my recent cases on international relocation are referred to in cases of this nature:

    1. Re:TC and JC (Children: Relocation) [2013] EWHC 292 (Fam) (21 February 2013)
    2. Re: F (A Child) (International Relocation Cases) [2015] EWCA Civ 882

    In my respectful opinion the reason why Re F was allowed on appeal is best summed up by the comments of LJ McFarlane (50):

    “….it is clear that a “global, holistic evaluation” is no more than shorthand for the overall, comprehensive analysis if a child’s welfare seen as a whole, having regard in particular to the circumstances set out in the relevant welfare checklist (CA 1989 s1(3))”

    LJ Ryder referred to the judge at first instance as falling into error (17):

    “….Payne is more nuanced in the sense that the questions were always intended to be PART of a welfare analysis and were not intended to be elevated into principles or presumptions” (Emphasis added)

    The judge at first instance stated (49):

    “….Payne suggested that great weight should be given to the wishes of the primary carer, particularly if he or she was returning to their native country, that is not a principal – it is merely GUIDANCE which the court may or may not follow.” (Emphasis added)

    In short, there is no need to use the precise wording that a “holistic approach” has been adopted as it is merely shorthand and therefore provided the decision in substance deals with all issues it complies with the approved approach. In the first instance, the judge considered ALL OPTIONS including the welfare checklist and the wishes and feelings of the child and the plans of both F and M in respect of the child. Payne must be PARTof that process and the questions raised by Payne must also be included as valid questions to ask. Therefore, the approved approach was taken in substance. One conclusion that can be taken from this is that the case was decided and used as a vehicle for policy.

    I suspect that balance sheets with the plans of F and M for the child together with the respective pros and cons of each plan will become common place reducing the decision making process to a kind of tick box exercise, after all how else does a practitioner deal with the issues raised. Think of it as a kind of Scott Schedule with an empty column at the end for the court to complete with its conclusions on each element. Then of course there will be appeals about the use of such methods and the questions contained within the schedule.

    My respectful conclusion is that far from providing clarification these decisions have created confusion as to how we advise clients on the issue of international relocation. Payne is not dead but is only one part of the decision making process. Judges must now be careful of the wording they use to describe the process they are undertaking. I am not sure I envy any judge in this situation.

    • Yes, removing the structure that Payne gave (even if many people didn’t like it) and replacing it with ‘look at everything in the round’ combined with the lower test for appeal (wrong, not plainly wrong) just seems to me to be a recipe for Judges being appealed every time they decide one of these cases. These really are “all or nothing” cases, which is a strong inducement for the person who ends up on the “nothing” side of the balance sheet to appeal.

      I absolutely agree, that as with so many of the Court of Appeal family decisions in the last four years, the instant case was just a vehicle for delivering a change in policy. I can see plenty of arguments that Payne v Payne was wrong, but not many good arguments that a Judge was wrong to ask those particular questions as part of the decision-making process.

  2. I entirely agree. The decision of the judge at first instance was not plainly wrong in part reliance on the questions in Payne. LJ McFarlane is clear in stating that the holistic approach is centered on the welfare checklist and “looking at everything in the round”. The Re F case clearly upheld Payne as a relevant PART of the decision making process. LJ McFarlane was clearly of the view that whilst balance sheets are useful they do not show the proper emphasis and run the risk of giving equal weight to all factors when this may not be appropriate. The trick in the future will be where does the emphasis belong in deciding such a case. In Re TC the court placed emphasis on one aspect as the central issue, which was the effect on the parent in the making or not making the order having regard to the welfare checklist in S1(3) of the Children Act 1989. For example:

    1. 1(3) (b) – what of the emotional needs of a child if the application were refused and the parent with care were kept in the country against his or her wishes. There are numerous examples of the reasoning that a sad parent makes for a sad child (child’s interests)

    2. 1(3) (c) – effect on the child via the parent as outlined above

    3. 1(3) (f) – how would this effect the parents ability to meet the needs of the child

    I submit that the flood gates have been opened for a free for all on the arguments relating to child relocation cases to such a degree that certainty has been removed, however imperfect that certainty might have been, and replaced with “look at everything”. Relocation cases are always finely balanced but even more so now! The challenge for practitioners which has now been made infinitely worse is how to advise clients and deal with the presentation of the case.

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