On 3 October, I attended a Court of Appeal hearing in London as an observer in the public gallery. Before the case started, I had had chance to read the decision that was being appealed,* and had spoken to the mother's barrister and to the father himself (he did not have lawyers for the appeal). It was easy to see why the father was appealing the decision, and I thought that he had an excellent case. It was somewhat surprising to find that he had lost his case, and I comment here on some aspects of that decision now that the judgment has been published.
The Facts:
The facts, very briefly, were these. The parents moved together from Spain to England in August 2009 when the father was offered a position here by his employer. The initial two-year posting was extended by another two years in May 2011, but the parents' relationship ended very shortly thereafter. The mother then returned to Spain, leaving the six-year-old child, whom I will call Pepe (not his real name), in the father's care. The mother initiated proceedings under the Hague Convention on child abduction which, quite properly, were dismissed by the High Court in London on the basis that Pepe was now "habitually resident" in the UK, and could therefore not be "returned" to Spain since his home was here. So the case became a relocation case - both parents sought to be Pepe's main carer, and the mother sought permission to take him to live with her in Spain.
The case came before His Honour Judge Marston for a three-day hearing. By now it was agreed that the mother had historically been Pepe's main carer, but that for nearly a year the father had been the main carer. There was no dispute that both parents were good parents, and that Pepe would be happy and well cared for with either of them as his main carer.
The decision being appealed:
The Judge looked at the existing authorities on relocation disputes, particularly the cases of Payne v Payne [2001] EWCA Civ 166 and K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793. Put simply, the former sets out guidance about how to approach relocation applications when the applicant is the primary carer of the child, and the latter applies when there is a relatively equal shared care arrangement - but both of them, at the end of the day, are guidance about how to work out which outcome will be best for the child.
The Judge's decision was that Pepe should move with his mother. The judgment was described in the Court of Appeal as "clear and careful in both its structure and its content" (para 12). The Judge said that there was at present not a shared care arrangement, since the father was clearly the primary carer - consequently, he said, "That seems to me to entitle me to look at the Payne guidelines and I make the following findings on them" (quoted at para 14). The Judge later remarked that "What I have in the circumstances if I apply Payne is a very well balanced case" (quoted at para 17). However, when considering all the questions asked by Payne and by the welfare checklist in the Children Act 1989, the Judge concluded that the mother should be given permission to move with Pepe.
The appeal:
The basis of the father's appeal can be explained very briefly. His argument was that the Judge had erred in looking at the Payne guidelines in this case because that case applies only where the applicant is identified as the child's primary carer. In this case, the Judge had clearly said that the father (the respondent to the application) was the primary carer. Consequently, the Judge had effectively had in mind the wrong questions when considering the application. In the father's submission, the case should have been seen as an application by the mother to transfer Pepe's main residence from the father to her. Cases cited by the father, such as Re B (A Child) [2009] UKSC 5, support his claim that such an application would have faced significant difficulties given that his care of Pepe was recognised as being good.
The mother's case was equally straightforward. Her barrister's argument was simply that, at the end of the day, the Judge was making an overall assessment of Pepe's welfare. The Judge had indeed looked at Payne, but also at various other matters; and in any case, he had not rigidly applied the Payne guidelines, but had simply used them amongst other things to inform his overall assessment.
The Court of Appeal essentially accepted the mother's arguments and rejected the appeal. The court found that "there was no error of law":
"Although this was not a case where the application was being made by the primary carer, Judge Marston was, for the reasons I have given, entitled to have regard to Thorpe LJ's 'discipline' as set out in Payne at paragraph [40]. He correctly appreciated that the case had to be decided by reference to [Pepe]'s best interests. And, at the end of the day, that is precisely what Judge Marston did.Discussion:
"He carefully took into account [Pepe]’s current circumstances in this country, the quality of his father's care of him and the father’s own plans, wishes and feelings. There is nothing which begins to suggest that he started off with any presumption in favour of the mother's claim. And if the complaint is that he did not recognise the presumptive weight of the father's claim, the short answer ... is that he would have erred in law had he done so.
"A reading of his judgment demonstrates that Judge Marston took into account and gave appropriate weight to each of the factors to which the father has drawn attention. He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo." (paras 49-51)
Some things said in Munby LJ's judgment are welcome and helpful. One is the important 'Postscript' to the judgment (though why it should be a postscript rather than part of the judgment itself is unclear) addressing the risks that arise when the law has, or appears to have, different 'categories' of relocation cases. Here, the categories being discussed are "primary carer" (Payne) and "shared care" (K v K) - but, as Munby LJ rightly says, Pepe's case "did not fall comfortably within the existing taxonomy" (para 60). The lesson to learn from this, said Munby LJ, was that advocates and judges should avoid undue categorisation of cases, where such an approach would distract from the focus on the child's welfare:
"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." (para 60)In my forthcoming book which will shortly go to press on relocation disputes, I deal with this point more fully when I argue that there should be a single set of guidance in relocation cases which is flexible enough that it can be applied to all cases, regardless of their factual variations. If there is any difference of approach, actual or perceived, based on the existing care arrangements, then there is no way to avoid judges being asked to decide whether this is a case of Type X or Type Y, and those questions are, as Munby LJ says, likely to be unhelpful as well as often unanswerable.
At the moment, though, despite what Munby LJ says, I think that this satellite litigation is unavoidable because, again contrary to Munby LJ's view, I believe that there are two separate sets of guidance applicable to relocation cases, depending on the existing care arrangements. In K v K, Lady Justice Black sought to avoid this split by saying simply that the Payne questions should be asked in a shared care case, but with a recognition that the facts of the case would make some of the assessments called for by Payne less relevant. Having a single approach, whatever the detail may be, is a laudable aim; but as I explained in detail in my article on this subject in [2012] Child and Family Law Quarterly 110, there is binding authority which prevents this at the moment.
The case of Re C and M (Children) [1999] EWCA Civ 2039, although never reported, is binding on the Court of Appeal, and makes clear that the approach applied in the cases which preceded Payne do not apply to a shared care case. So while I strongly agree that it would be better if we adopted a single analytical framework for all relocation disputes, I am unable to accept that this position can be achieved simply by quietly ignoring the authorities which established the split approach. The existence of Re C and M makes it irrelevant whether or not Munby LJ is right to interpret Moore-Bick LJ as agreeing with Black LJ in K v K , and therefore to say that their broad interpretation of Payne as representing a single approach to relocation is "the majority" and "the correct approach" (para 43 of Re F). For what it is worth, though, I find Munby LJ's reasoning on this point ambitious.
Finally, but importantly, I want to say why I think that both Judge Marston and Munby LJ were wrong in their assessments of this case, and therefore why the father should have succeeded in resisting the relocation application. This was a case where the father had demonstrated beyond any doubt that he could care well for Pepe as the main carer. The fact that, as Lord Justice Ward said when giving the father permission to appeal, "the judge seems to have treated the mother as the primary carer" (quoted at para 23) is an impression which I find it impossible to escape.
Judge Marston "looked at ... Thorpe LJ's discipline as set out in Payne at para [40]", then the welfare checklist from the Children Act, and then an overall welfare assessment (para 48). Munby LJ seeks to support Judge Marston by pointing out that he did not refer to other parts of Payne or to the earlier case of Poel v Poel [1970] 1 WLR 1469 - but that is no answer to the father's case. The guidance in Payne, set out in para 40 of that case and methodically applied by Judge Marston in Re F, has as its essential underpinning the fact that the applicant is the primary carer. Indeed, Thorpe LJ himself made this point clearly in K v K (para 41) in 2011: "I am in no doubt at all that the guidance in Payne is posited on the premise that the applicant is the primary carer. It so states in terms."
Given this, Judge Marston was in error when he asked himself the questions set out in para 40 of Payne, and it is impossible to say that having asked himself those questions he then made a legitimate balance of all the factors relevant to Pepe's welfare. It is not enough for a judge to say that he is making a decision based on welfare if he has asked himself the wrong questions when considering which factors are relevant to that welfare determination.
This is an unusual case, as relocation disputes go. In fact, it would probably have been better approached as an application for a transfer of Pepe's primary residence, followed by an application for relocation if the mother's residence application were successful. With that approach, I find it hard to believe that the mother would have been allowed to move the child. The Supreme Court has previously made clear that the disruption involved in a transfer of residence may be (though will not always be) a crucial factor in such a case:
"Transfer of [the child's] residence would involve a great deal more than a change of address. Many of the familiar aspects of his life which anchor his stability and sense of security would be changed. The justices were therefore right to give significant weight to the desirability of preserving the status quo. This is a factor which will not always command the importance that must be attached to it in the present case but we are satisfied that it was of considerable significance in the debate as to where this child's best interests lay." (Re B (A Child) [2009] UKSC 5, para 42)In this case, that transfer of residence meant not only moving away from the good care being provided by the primary carer father; it also meant a change of country (albeit back to Spain where Pepe had lived until age 4, and where he had his extended family on both sides), change of school, change of language. Was that in his best interests? Well, maybe - but since the judge did not ask himself those questions, we can't know what the answer would have been. My instinctive reaction is to think that allowing the mother to move the child in this way was probably not the right answer.
Moreover, though, this case has an unpleasant smack of sexism. The primary carer father in this case might be forgiven for thinking that he got a rather harder ride than would a primary carer mother in a case where the father was seeking to move the child abroad.
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* During 2012, I am collecting all first instance judgments and orders made in relocation cases in England and Wales. This case had been submitted to me as part of that research. More information about the project is available on my Faculty webpage. Nothing in this post reveals anything that is not publicly available in the Court of Appeal judgment.
