Payne v Payne - The Long Goodbye Continues

As someone whose life is unduly preoccupied with thinking about relocation law, I find it fascinating that the English courts cannot bring themselves to say, in straightforward terms, what we on the sidelines have known for so long - Payne v Payne has had its day.

For anyone not familiar with Payne, it's a 2001 Court of Appeal decision which places considerable focus on the fact that the applicant was the mother, and that she was the child's primary carer. Looking back over the earlier authorities, those facts were almost always true, and so it is perhaps unsurprising that the court's guidance about how to approach such cases in the future took this as being inevitable.

In the 15 years since the case was decided, much has changed, and the reality is that there is a far greater range of post-separation care arrangements on the ground now than there was when Payne was decided. Consequently, when thinking about a question as important as whether a child should be taken to live in another country or not, the relevant considerations are now also more varied, and - crucially - the guidance stemming from Payne may or may not be especially helpful.

The Court of Appeal said as much in the 2011 decision of K v K, but the majority judges (Black and Moore-Bick LJJ) were clearly of the view that the answer did not involve abandoning Payne. On the contrary, Black LJ stressed that Payne remained helpful, but that judges were required to use it as general guidance, not as a straitjacket - the weight given to its various factors would be varied depending on the facts of the particular case being decided.

I have long been sceptical of this approach. In an article published last autumn, Edward Devereux and I suggested that it was unrealistic to expect judges to make these kinds of adjustments on a case-by-case basis, when the guidance that they were being asked to adjust started from such a one-sided position.

And so it has come to pass. The latest Court of Appeal decision on international relocaiton - Re F (International Relocation Cases) - over-turns an experienced Circuit Judge's decision because she focused too much on the Payne criteria and not enough on an overall assessment of welfare. Well, don't say you weren't warned.

In its latest comments on Payne, the Court of Appeal has reached new extremes of contortion. We are told that "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" (para 18). We are told that the questions asked by Payne "may or may not be relevant" (para 18). We are told that "[s]elective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law" (para 27).

Payne is also criticised for its lack of focus on the child's views about the decision or, putting it more broadly, its lack of consideration of how the child should participate (paras 18 and 40). It is also impliedly criticised for its focus only on the proposals of the parent seeking to relocate, since in Re F the court emphasises the need to look holistically at the available options from a welfare perspective, and not to approach the options in a linear manner.

So all around, this seems to me to lead to the obvious conclusion that Payne is no longer a useful authority. So why won't they just say so? Let's put poor Payne out of its misery and start again with some sensible guidance which can be applied to all relocation cases without confusing hard-pressed trial judges and requiring unnecessary appeals.

“A Narrow Textual Analysis”: Re P (Relocation) [2014] EWCA Civ 842

Last month, the Court of Appeal allowed an appeal against a trial judge’s decision to refuse to allow a mother to relocate permanently with two children, aged 3 and 2, to Germany. The basis for that appeal was that the judge had made a key finding about the mother’s motivation for seeking to relocate which was unsupported by the evidence. However, that conclusion relies on what the House of Lords once described as “a narrow textual analysis which enables [appellate judges] to claim that [the trial judge] misdirected himself”, and thus allows the appeal court “to subvert the principle that they should not substitute their own discretion for that of the judge”.

The crucial passage of the trial judge’s judgment was at para 16, where she said this:

"What is the mother's motivation to relocate to Germany?  The mother's case is that she and the children will live in Germany where they will enjoy a better standard of living.  I do not accept that that is her true or primary motivation.  I am satisfied that the mother's primary objective for relocation is to limit the involvement of the father in the lives of the children.  It is the mother who wishes to control the father's relationship with the children and not the father exercising control over the mother.  Living in Germany with the children I am satisfied that the mother perceives that she would be the parent with control.  Maintaining the father's relationship through contact is not high on her list of priorities."

In the Court of Appeal, Ryder LJ considered that, aside from this issue about the mother’s motivation, “the other factors that are identified in the judgment would have left the cases of the mother and father relatively evenly balanced” (para 9).

Two concerns therefore arise out of the Court of Appeal’s decision to allow the mother’s appeal (aside from the cost and delay of a re-trial).

The first is the basis on which the Court of Appeal criticised the judge for her conclusions about the mother’s motivations. There was some discussion in the Court of Appeal about how, bar one short period of time, the mother had always complied with the contact arrangements which had been put in place by consent. Ryder LJ criticised the judge for “eliding” (a) a motivation to limit contact to that set out in the order, and (b) a motivation to limit the father’s role in the children’s lives. The Court of Appeal also considered that a transcript of the evidence did not support the conclusions reached by the judge.

With respect to Ryder LJ, none of these points necessarily undermines the trial judge’s conclusions. When a judge sees a witness give evidence, far more is communicated to her than the mere words said. The judge is able to, and is entitled to, assess the demeanour, tone and attitude of a witness, and the judge may not be able to express in exact language why she reached the conclusion that a witness was honest or not, evasive or not, and so on. As Lord Hoffmann once put it:

“specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

A judge with 12 years’ experience as a full-time judge sitting in family cases is entitled to use her judgment to assess a witness’s motivation, both from things said and by inference, and then to rely on that assessment. That is what judges are paid for. If it were only a matter of recording the words said, oral evidence would be a complete waste of time. The skill and experience of the trial judge goes far beyond that, and needs to be respected by the Court of Appeal.

The second point of concern is the apparent weight that Ryder LJ appears to give to the fact that, aside from the mother’s motivation, the case might be seen as finely balanced. Leaving aside the motivation point, the mother was bringing an application and therefore faced the task of persuading the judge that making an order for relocation was better for the children than making no order at all: Children Act 1989, s 1(5). If the matter was finely balanced without regard for the mother’s motivation, and if the mother’s motivation is one relevant factor (which clearly it is), it is very hard to see that the decision which the experienced trial judge took to refuse the application was “wrong”.

Re P shows the Court of Appeal engaging in a narrow textual analysis to overturn a decision with which it disagreed, but which was reached on a legitimate basis and cannot genuinely be said to be wrong. Any judgment can be criticised for the precise way in which issues are put or the details included or omitted. That cannot be the way for an appeal court to operate, both because the appellate system would become unworkable and because it misunderstands the overall point of a judgment, which is to give sufficient explanation of the reasoning process undertaken by the judge in reaching her conclusion. 

The Perils of Criticising a Criminal Sentence for "Undue Leniency"

The Attorney General has announced that the 15-month jail sentence given to Stuart Hall following his conviction for child abuse offences years ago will be reviewed. That is one of the AG's functions: to consider and, if necessary, review sentencing decisions. There is certainly considerable public dismay at the sentence passed, but it is a little surprising to find so many commentators pre-judging the outcome of this review. After all, the review may yet uphold the judge's decision. Moreover, from what I have seen, none of the commentators knows about the detail of the case in the way that the judge did, and none of them that I have seen has a background in or experience of criminal sentencing.

Jonathan Freedland's article in the Guardian might be a good example. Freedland is an excellent commentator on political matters, but I'm not convinced by his critical comments on this purely legal matter. One of the things about sentencing for criminal offences is that the decision is taken in line with the law, and not on the basis of political pressures, public opinion, or the views of victims or their families. The policy which underpins sentencing law is independent of these factors for obvious reasons - the avoidance of mob mentality, basically. It is the judge who heard the case, and who knows all the evidence, who makes the decision about the sentence within the general guidelines issued.

I'm not trying to make any comment about the Hall case in particular. Maybe the judge did give undue weight to various mitigating factors. No judge is infallible, and that is why we have reviews and appeals against sentence. But at the same time, the judge is the one tasked with making the decision, and when there are choices to make they are his to make, and it makes me uncomfortable that people would publicly criticise the decision without apparently giving any credit to the judge's expertise or to the fact that the review has yet to take place.

For example, Freedland criticises the judge for choosing to impose concurrent rather than consecutive sentences. Well, who knows what another judge might have done, but if the judge is asked to decide, and he gives cogent reasons for choosing one rather than the other (which this judge did: he expressly acknowledged that consecutive sentences would have been possible, indicating that he considered and then rejected this option), it is questionable whether commentators should then criticise him for that decision.

Successful appeals against unduly lenient sentences are fairly uncommon, I think, not least because there is always a range of sentences that could legitimately be imposed and the judge is the one tasked with picking within that range. In this case the judge was surely aware that the decision he took, whatever it was to be, would be scrutinised by the media. The case was a high profile one, and while that should not have affected the decision the judge took, it no doubt caused him to think particularly carefully about it, and to weigh the options available to him. So let's wait and see. There's obviously a concern here and I don't know yet whether it is justified or not, but as a general principle I wouldn't be surprised if the outcome of an impartial review was to uphold the judge.

When Is a Judge Allowed to Change Her Mind?

In two days, the UK Supreme Court will hear an appeal to determine what seems to be a fairly fundamental question: if a case has several stages, and the judge gives a judgment about part of it before the whole thing is finished (which is very common), is the judge entitled to change her mind about that first part before she concludes the rest of the case?

The trial judgment

That is essentially what her Honour Judge Penna purported to do in the case under appeal. Put at its most basic, what happened was this. The Judge was trying a child abuse case in the family court, and was asked to decide

   i) whether the child had been abused

   ii) if so, by whom, and
  
   iii) what the consequences should be, in particular in terms of the child being taken into care

It is reasonably standard for the first two of those questions to be dealt with at one hearing, and for the final question to be postponed till later. So at the conclusion of the first hearing, Judge Penna gave a short judgment in which she concluded that the child had been abused, and that the father was the person responsible.

Various consequential orders followed from this judgment, though through administrative oversight the order was not sealed for some months and therefore technically had no effect. One of those orders was that a perfected judgment would be distributed in advance of the next hearing, which indeed it was - and this is where the legal interest in this case begins.

Judge Penna's judgment, as distributed, said that she had "reconsidered the matter carefully" and now thought that it was not possible to be sure that the father was the perpetrator. Rather, the Judge said, it was either the father or the mother (or both). In itself, that is a perfectly normal finding in this kind of case - there is often inadequate evidence to pin down which of two parents cause the abuse. The question is whether the Judge was entitled to change her mind at this stage, and to bring the mother into the frame once she had already given judgment pinning blame solely on the father.

The Court of Appeal

Unsurprisingly, the mother appealed against this decision. The Court of Appeal judgments, given by Thorpe, Rimer and Sedley LJJ, highlight just what a difficult case this is.

Variations on this question have arisen before. For example, it is well established that when a judge distributes a draft judgment, she is entitled to amend and correct it at any time, whether at the request of one of the parties or not, up until the final order is made which gives effect to that judgment (see, for example, Arden LJ in Re T [2001] EWCA Civ 1736, para 50). Moreover, it seems clear that when a family court case is split into several stages, as this one was, those stages need to be seen as part of the same case, and therefore that 'the final order' is the one made at the conclusion of the entire process, not the consequential orders made along the way at the end of each stage (see Munby LJ in Re A and L [2011] EWCA Civ 1205, para 21).

So what of Judge Penna's approach? In Thorpe LJ's view, while the judge technically had the power to change her mind, she should not have done so unless there had been "interim developments [which were] substantial, if not fundamental" to justify her changing her mind (para 44). Agreeing with this point, Sedley LJ put the matter in this way:

"Between [the first hearing and the second], when she reversed her own decision, nothing had changed except the judge's mind. ... But this by itself is not an objective reason why [the] original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge's mind – to justify reversal of a judgment. (para 79)

Lord Justice Rimer disagreed. He recognised that it would be an exceptional course of action and that a judge did not have "a general licence ... to change his mind as to the fact finding decisions that he has earlier made" (para 68). Indeed, his Lordship thought that at trial judge:

will only have legitimate occasion to exercise [the right to revisit his findings of fact] in the light of a material change of circumstances justifying it, in particular the emergence of new evidence. A judicial change of mind following the renewed consideration of a decision already made would not ordinarily be regarded as the type of circumstance in which it would be open to the judge to make fresh findings. (para 68)

However, in this case Rimer LJ thought that Judge Penna was entitled to change her mind: "She was thereby honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part" (para 71). While matters had moved on in consequence of her initial judgment, no party had materially changed their position, and no party was affected in a way that they would not have been had the judge originally reached what turned out to be her final conclusion. Moreover, the Judge could not reasonably have continued with the case "were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong" (para 71).

Rimer LJ went on to criticise the approach of the majority in the Court of Appeal as based on "little more than an appeal to procedural discipline" which ran contrary to the court's obligation to promote the best interests of the child.

To require the judge, or any other judge, to conduct the welfare proceedings on the basis of a false substratum of fact is to require the judge to shut his eyes to the realities and to embrace a fiction. (para 71)

Discussion

The tension at the heart of this case is extraordinary. On the one hand, the idea that a judgment given on one day can be fundamentally altered the next for no externally apparent reason is unpalatable. It is also important to understand that "procedural discipline" exists for a reason, namely that process is as important to the rule of law and the provision of justice as outcome.

On the other hand, Rimer LJ's point about deciding the future welfare of a child based on what is now believed by the decision-maker to be an erroneous basis can hardly promote the child's interests. In this case, it made little difference because the mother's mental health difficulties meant that the grandparents were to be the main carers of the child. But in another case, a finding of fact that it was Parent A and not Parent B - rather than a finding that it was either Parent A or Parent B - who abused the child could well result in the child being left in Parent B's care. If the Judge has, meanwhile, come to think that, on reflection, it really might have been Parent B who was the abuser, how could the Judge in good conscience allow that outcome?

I do not envy those who must make the decision as to which of these approaches has the better of it, but my inclination is to think that Rimer LJ is right, and that the Judge was not only entitled to change her mind, but in fact required to do so, once she came to the conclusion that her initial judgment was wrong. But what will the Supreme Court say?

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UPDATE, 21.1.13:  At the conclusion of the Supreme Court hearing today, the Justices announced that the appeal would be allowed, and the revised judgment of HHJ Penna should be used as the basis for the case going forward. Judgment will follow at a later date.

Right thinking, wrong result? Commentary on Re F (Child: International Relocation)

On 24 October 2012, the Court of Appeal gave judgment in Re F (Child: International Relocation) [2012] EWCA Civ 1364. This post argues that although some of the points made by Lord Justice Munby in his judgment are sensible and welcome, the outcome of the case is wrong and it is unfortunate that the Court of Appeal did not allow the father's appeal.



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.

"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)
 

Discussion:

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.

"Looking to the 22nd Century" - Munby LJ's Vision of Child Welfare

It is hard not to describe Munby LJ's judgment in Re G (Children)[2012] EWCA Civ 1233 (4 October 2012) as extraordinary. The facts of the case, while interesting and important, are not my focus here. They had to do with the religious upbringing and education of five children of an ultra orthodox Jewish family, but in determining those issues the Court of Appeal grappled with fundamental questions about the welfare principle. This post looks at that discussion.

Understanding Welfare

Munby LJ starts his broad discussion of welfare by noting that the word can be considered synonymous with 'well-being' and 'interests', as per the House of Lords decision in Re B (A Minor) (Wardship: Sterilisation) [1988] AC 199. From the start, the Judge's comments indicate the immense scope of his understanding of welfare, since he says that the concept "extends to and embraces everything that relates to the child's development as a human being and to the child's present and future life as a human being" (para 26).

In case the enormity of that task were not clear, Munby LJ emphasises that "with modern life expectancy a judge dealing with a young child today may be looking to the 22nd century" (para 26). One has to feel some sympathy for the District Judge trying to get through 20 cases a day, finding that she may now have to consider the implications of each case over the next century, depending, as always, "upon the context and the nature of the issue" (para 26).

The Judge then expands upon the range of considerations relevant to the welfare evaluation:

"Evaluating a child's best interests involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, religious, cultural, emotional and welfare considerations. Everything that conduces to a child's welfare and happiness or relates to the child's development and present and future life as a human being, including the child's familial, educational and social environment, and the child's social, cultural, ethnic and religious community, is potentially relevant and has, where appropriate, to be taken into account. The judge must adopt a holistic approach." (para 27)

In other words, there is really no aspect of the child's life and circumstances which might not be relevant to the enquiry. This much we knew, but having the full range of those issues set out in this way is unusual and helpful (if rather daunting). With reference to a recent academic article by my colleagues Jonathan Herring and Charles Foster,* Munby LJ explains that his reference to 'happiness' should be understood in an Aristotelian sense of 'the good life'. The Judge rather ducks the question of what that might mean - "There is no need to pursue here that age-old question" (para 29) - but is clear that he does not mean "hedonism".

Societies, Communities, Families

The next point is that children live in societies, communities and families, and that a child's welfare cannot be considered in isolation. With passing reference to John Donne, Blackstone and Aristotle (as well as Herring and Foster's article again), Munby LJ remarks:

"relationships are central to our sense and understanding of ourselves. Our characters and understandings of ourselves from the earliest days are charted by reference to our relationships with others. It is only by considering the child's network of relationships that their well-being can be properly considered. So a child's relationships, both within and without the family, are always relevant to the child's interests; often they will be determinative" (para 30).

This discussion is important. It fits with Herring's earlier work about relational welfare,** as well as with my recent writings about the importance of seeing the welfare principle as including consideration of the interests of everyone involved in the child's life. With a focus on questions about human rights, I say that "Issues like parents' rights are not irrelevant or excluded under the welfare principle; quite the contrary, they may be a very important part of the process of deciding which course is best for the child".*** Munby LJ is quite right to put this point at its broadest, focusing on relationships, community, and the values of a pluralistic liberal society (including human rights).

Applying the Welfare Principle

Looking back to the famous House of Lords decision in J v C [1970] AC 668, Munby LJ quotes a section from Lord Upjohn's speech where he said that the judicial task is to behave as the reasonable parent, and that the views of the reasonable parent will change over time as society's values change. Munby LJ sees this as crucial, and draws a distinction between the concept of welfare - doing what is best for the child - and the conceptions or content of welfare - what we mean by "doing what is best for the child" in a given factual and temporal context (para 33). The former remains static, whereas the latter will change and develop:

"A child's welfare is to be judged today by the standards of reasonable men and women in 2012, not by the standards of their parents in 1970, and having regard to the ever changing nature of our world: changes in our understanding of the natural world, technological changes, changes in social standards and, perhaps most important of all, changes in social attitudes." (para 33)

That approach, of course, begs the question of what the standards of reasonable men and women in 2012 might be. Lord Justice Munby does not shy from engaging with this question, and he identifies three key aspects: (1) equality of opportunity, (2) aspiration, and (3) bringing the child to adulthood equipped to decide what kind of life to lead and to pursue their aspirations. The quotation is long, but worth reading in full:

"At this point a fundamental issue has to be grappled with. What in our society today, looking to the approach of parents generally in 2012, is the task of the ordinary reasonable parent? What is the task of a judge, acting as a 'judicial reasonable parent' and approaching things by reference to the views of reasonable parents on the proper treatment and methods of bringing up children? What are their aims and objectives? These are questions which, in the forensic forum, do not often need to be asked or answered. But in a case such as this they are perhaps unavoidable. In the conditions of current society there are, as it seems to me, three answers to this question. First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations. Far too many lives in our community are blighted, even today, by lack of aspiration. Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead –what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future." (paras 79 and 80).

This is a judgment of extraordinary vision, grappling with important questions and offering insightful answers. No doubt there will be much said about this decision in the months and years to come, but my initial thought is that Munby LJ may have just set the standard against which we will judge explanations of the welfare principle, both in its theoretical meaning and its practical application, for some time to come.

Notes

* J Herring and C Foster, "Welfare Means Rationality, Virtue and Altruism" (2012) 32 Legal Studies 480

** See, eg, J Herring, "Farewell Welfare?" [2005] Journal of Social Welfare and Family Law 159; J Herring, "Relational Autonomy and Family Law" in J Wallbank et al (eds) Rights, Welfare and Family Law (Routledge, 2009).

*** R George, Ideas and Debates in Family Law (Hart, 2012), p 118.

 

 

Internal relocation: have kids, will travel (barring exceptional circumstances)

Internal relocation cases are disputes between separated parents about a proposed move to a different geographic location within the UK. In this post, I discuss the law and some research that I did with legal practitioners in 2009, and suggest that it is time to think again about the courts' current approach to relocation disputes.



One of my barrister colleagues at Harcourt Chambers has a case coming up about internal relocation. Relocation cases are disputes between separated parents that arise when one of them proposes to move to a new geographic location with their child or children and the other parent objects. The 'internal' part means a move within the United Kingdom, rather than internationally.

Families obviously move house all the time after separation, but internal relocation disputes that end up in court are pretty rare for a number of reasons. Some of those reasons are obvious - separated parents work things out for themselves when one of them wants to move, or the move isn't far enough to justify the kind of expense and aggravation that a court case involves. There are less obvious reasons, though, which relate to the law itself.

The Law on Internal Relocation:

Like all parenting disputes about children's upbringing, internal relocation disputes are governed by the Children Act 1989. The heart of the Act is that in all decisions about a child, that child's welfare must be the paramount consideration. In practical terms, that means that any relevant information can be taken into consideration, but only things which directly or indirectly affect the child will be considered relevant. This 'welfare principle' is then guided by case law as it develops in relation to particular types of case.

The first litigated internal relocation case that reached the Court of Appeal (and so started to matter more generally to the law) was a case reported as Re E (Residence: Imposition of Conditions) in 1997. In that case, the mother was providing the main care of the children, and the father sought an order from the court preventing her from moving with them from London (where they had lived before separation) to Blackpool (where the mother's extended family lived). The Court of Appeal refused to make the restrictions on the facts of that case, and set out some general guidelines for future decisions.

In the leading judgment of Lady Justice Butler-Sloss, it was noted that although the Children Act contains a power to impose conditions on a residence order, it would 'not sit easily' with what was meant by a residence order if conditions were routinely imposed. A residence order, which determines the person or persons with whom a child shall live, would normally come with significant flexibility about how to raise the child while in that person's care. As the judge went on:

"A general imposition of conditions on residence orders was clearly not contemplated by Parliament and where the parent is entirely suitable and the court intends to make a residence order in favour of that parent, a condition of residence is in my view an unwarranted imposition upon the right of the parent to choose where he/she will live within the UK or with whom. There may be exceptional cases".

This final point, about exceptional cases, was clearly intended by Butler-Sloss LJ to avoid any overly rigid rule, but with the advantage of hindsight it was perhaps unfortunately expressed. In subsequent cases, other Court of Appeal judges began to refer to the 'highly exceptional' circumstances which might justify stopping an internal relocation, and then of the 'truly exceptional' nature of an order stopping an internal relocation.

In the most recent reported case, Re F (Internal Relocation) in the summer of 2010, Lord Justice Wilson expressed 'puzzlement' at this development of the law. As the judge noted, it is hard to see any legal justification for an exceptionality test. All decisions about children's upbringing are governed by a single principle, namely that the welfare of the child is the paramount consideration. If a welfare analysis suggests that internal relocation is not in the child's interests, why should there be a requirement that the case be in some way 'exceptional'?

It might be argued that this label is purely descriptive: as a matter of fact, cases where restrictions on relocation within the UK will be the exception. (That is what I think Butler-Sloss LJ probably meant in Re E.) That might be fine. As the Supreme Court said in another child law case, it is okay for the outcome of decisions more often to be X rather than Y, but not okay for there to be a starting point or presumption in favour of X.

However, the way that the law in this area has developed means that the label is not really descriptive, but is actually a test which presents a high hurdle for someone seeking to stop an internal relocation to cross. Lord Justice Wilson was clearly unhappy about this state of affairs in Re F, but thought that the Court of Appeal was not able to do anything about it:

"It is now too late ... for [the Court of Appeal] to rule that, in internal relocation cases, the analysis of the child's welfare ... should not be conducted through the prism of whether the circumstances are exceptional. ... But for the reasons given, I believe that, had I not felt bound by authority, I might have wished to suggest that a test of exceptionality was an impermissible gloss on the enquiry mandated by section 1(1) and (3) of the [Children] Act."

While I think that the Court of Appeal could, in fact, have removed this undue gloss on the welfare principle, Wilson LJ nonetheless makes the argument for a re-think clearly.

Relocation Research

Similar ideas were found in my research into relocation disputes in 2009, when I interviewed lawyers and judges about their experiences of the law. One judge whom I interviewed and who, like Wilson LJ, was uncomfortable with placing an exceptionality gloss on the welfare principle, said this: "If the welfare analysis suggested that it would be best for the welfare of the children for them to stay, ... the court should have the power to make that happen."

Other participants pointed out the strangeness of having a different approach to moves inside the UK (allowed unless there are exceptional circumstances) and moves outside the UK (where there is a multi-stage test, albeit a controversial one). Many participants noted that maintaining regular contact after a move from London to Perth or Bangor would be a lot more difficult than after a move from London to Paris or Brussels.

However, even for shorter moves, some lawyers and judges were concerned about the effects that an internal relocation might have. As one solicitor said, "you might be talking about only a one-hour or two-hour journey, but [such moves] are still equally destructive [of contact]". It was these consequences of the decision that led one barrister to stress the importance of making the judge see why the case was important and more difficult than a normal contact case:

"You have got to look at this much more carefully and say, if I make this decision to [allow the parent to] relocate internally miles away ..., what is the medium- to long-term effect of that? Is it going to be reasonable [to continue] to have fortnightly contact? Often it is not, if the distance is vast and involves huge amounts of driving."

This is the reason why relocation cases call for a broad all-factor child-centred approach, not restricted by the straitjacket of an 'exceptionality' test.

Discussion:

Relocation law, both internal and international, is long overdue for a re-think. As one senior barrister said in my research, it is not necessarily even that the Court of Appeal has got it wrong at the moment (though it may have), but rather there are just so many people who are unhappy with the law as it is that the courts should review it with an open mind as to what the outcome will be.

There is lots I could say about how the law should be changed, but there's one overarching point that I think comes from this discussion. It seems increasingly difficult to justify having a legal approach in which so much depends on the proposed destination of the relocation. To be honest, I'm doubtful whether having a different rule for moves within the UK versus moves elsewhere would prove to be EU-law compliant if challenged in the European courts. (The rule appears to favour moves within the UK and therefore disfavour moves elsewhere within the EU, thus de facto discouraging people from exercising their rights to free movement within the Union.)

The Court of Appeal has often stepped in before to remove other glosses on the welfare principle that grew accidentally over time, and it should do the same with internal relocation. Failing that, then it is time for the Supreme Court to get involved, preferably with a combined appeal involving both internal and international relocation cases so that the legal principles of the two sides of relocation law can be considered together.

In an article published in the Journal of Social Welfare and Family Law in 2010, I suggested a series of questions that might be considered when dealing with a relocation case:

(1) What is the reality of the existing care arrangement, including consideration of the various contributions which are being made to the child’s welfare and wellbeing?

(2) Why does Parent A wish to relocate, and, in particular, is the relocation a covert attempt to disrupt the child’s relationship with Parent B? In terms of practicalities, are the plans to relocate well considered and reasonably realistic? Similarly, why does Parent B oppose the relocation?

(3) Taking into account the answers to (2), is Parent A able and willing not to relocate if the child cannot move? Conversely, is Parent B able and willing to move as well if the child does move, so as to continue the present care arrangement in a different location? Assuming one (or both) of these options to be possible, consideration must be given to whether it would be in the child’s interests to adopt that course, taking into account the likely effect on each parent and, directly and indirectly, on the child.

(4) If the options in (3) are impractical or undesirable, what would be the advantages and disadvantages for the child, either of going with Parent A or of remaining with Parent B? This assessment should take into account factors like (a) the realities of the existing care arrangements; (b) the effect on the child of moving with Parent A while Parent B remained, or of remaining with Parent B while Parent A moved (including the effect on the child’s relationship with the each parent, with other family members, and with friends and community more generally); (c) the possibility for maintaining a strong on-going relationship with whichever parent the child was not with; (d) the general disruption involved with moving (new school, etc) compared with remaining in the current location; and (e) any significant material advantages or disadvantages either way.

(5) What are the child’s own views about the matter, taking into account the child’s age and maturity?

This approach probably isn't perfect, but it might be a place to start in re-thinking relocation law.

For more detailed discussion, see my two case 

commentaries on internal relocation cases in the

Journal of Social Welfare and Family Law: (2010)

32 JSWFL 71-80 and (2011) 33 JSWFL 169-174

Research Versus "The Anecdote"

This is a post about the challenges of communicating research findings which have to go up against compelling but unrepresentative anecdotal stories, taking as an example the anecdotal attack on the family courts.

My colleague Peter Clarke used to joke that his students would "never let the facts get in the way of a good argument". In this post, I offer some thoughts on the difficulty that researchers often have in dispelling myths when they have to challenge an established public or media narrative that is supported by the all-powerful anecdote. Just as facts didn't stop Peter's students' arguments, research can struggle to overcome the rhetorical appeal of the anecdote. To paraphrase Peter, the media and the public "never let the research get in the way of a good anecdote".

Why anecdotes are compelling and research is not

Anecdotes have a number of qualities which make them great stories. First, they have human interest – we get to learn about a real person and to pry into their personal experience in some way. Second, they are usually quite simple – events unfold in an understandable way, and the consequences are easily explained. Third, they are believable because they (at least supposedly) actually happened. And finally, anecdotes are usually dramatic and extreme – after all, that’s why the story is being told. It’s like the news – only unusual or dramatic events are worthy of being reported, so you never hear:

“This morning, a woman got into her car, drove to work, and arrived there 20 minutes later without incident. On arrival, she picked up the post, made a coffee and started work. In other news, James Smith aged 8 has successfully learnt the six times table.”

Those aren't news stories, and they wouldn't be good anecdotes, because they are normal events. On the other hand, car accidents or mail bombs are news and would make great anecdotes - they are dramatic and extreme.

Research struggles to compete with any of this, no matter how interesting it is. But if the research is relevant and well done, why should this be?  Part of the reason might be that research findings rarely have any of the qualities that anecdotes display.

Most research does, in fact, have a huge amount of human interest, which seems like a good starting point. But the problem for researchers is that we struggle to tell people about the human interest in our findings because, for ethical reasons, we anonymise our work and try to make sure that the people who help us with our work are not identifiable in what we say about it – so we don't talk about individual people and we don't reveal personal experiences.

Then there’s the problem that research findings are rarely simple. We find complicated things, and as researchers we are nervous about over-simplifying what our evidence shows. When asked a question about our findings, often the instinctive (but perhaps unhelpful) response for many of us is: “well, it depends”. We find it almost painful to have to give straightforward answers, in case we look like we are misrepresenting the evidence.

Research ought to be believable, though – but perhaps the problem is that the way we try to convince people that our findings can be trusted is to tell them about our methodology – and let’s face it, that’s boring. Anecdotes don’t have to convince you of their veracity, because they come pre-stamped as being “actual events”, whereas research is an overview which can be harder to understand if you aren’t a professional researcher.

And then finally, dramatic and extreme? No, research findings are rarely dramatic or extreme. In fact, a lot of the time what we see is the exact opposite – we’re finding empirical confirmation of normal and everyday things. If you did research on people’s morning routines, most people’s would be as unexciting as my non-news story of a woman’s drive to work.

So all of this means that researchers can find it hard to give their findings traction in the public consciousness, particularly when there’s a good anecdote or two which contradict what the researcher is trying to say. Sometimes these mismatches between empirical reality and anecdotal rhetoric are annoying but insignificant - but at other times, they are dangerously misleading and potentially very damaging.

I'm going to use the second half of this post to illustrate what can happen when anecdotes trump research by taking an example from my area of research, the family justice system.

A practical example - the family courts 

The thing that has got me thinking about this at the moment is the on-going attack made by Camilla Cavendish and The Times on the family courts of England and Wales, the latest instalment of which appeared last week. This has been going on for some years now, with Cavendish writing about what she calls the "scandal" of the family courts of England and Wales. The cause of this problem, Cavendish thinks, is that the family court cases are "secret", because they are heard in private and the media are not normally in attendance. The answer, therefore, is to “open them up” to allow the light to shine in by allowing the media (and perhaps the general public) to go to family court hearings and then tell people about what they see.

I think that Cavendish is probably well-meaning, and perhaps genuinely sees herself as some crusader for justice, but her ill-informed criticisms of the family justice system based on anecdotal stories which ignore consistent research findings are wrong-headed and dangerous. Her ideas might sound sensible, but I think that the idea of "opening up the family courts" is truly misguided.

The reason that the media and the public are kept out of family court hearings is not because they are “secret” but because they are private. We are talking about incredibly sensitive, personal events in people’s lives – divorces and separations, allegations (which might or might not be true) about parents neglecting or abusing their children, questions about whether a child should have a dangerous medical operation or not, women seeking protection from physical, mental or emotional abuse by their partners or other family members, and so on. These are things that people are entitled to keep quiet, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

Leaving the merits of the debate aside, though, the real problem here is the way that the rhetoric has been taken hostage by anecdotes and stories. Cavendish and others have constructed this debate as being about "secret justice", frequently using individual cases to make vast sweeping statements about the family courts of England and Wales. Cavendish’s most recent rant damned the entire system based on one extreme case (which, incidentally, was largely taking place in the public gaze of the criminal courts, not the private sphere of the family courts) and, for great comment on that I'd recommend Lucy Reed on the Pink Tape blog. As Reed says, one complicated case where it turned out that the medical evidence that the court had to rely on was wrong does not indicate that there is a systemic problem with the family courts. There are thousands upon thousands of family court cases every year, and the vast majority proceed carefully and correctly.

Obviously sometimes people aren’t happy with the outcome of their case, but that seems unremarkable. When people go to court, sometimes they lose and sometimes they are unhappy about that, especially when the case was about something that was personally important to them (their children, for example). But just because people aren't happy doesn't mean that the system is broken. In cases where something has actually gone wrong, we have appeal courts – and, if you look at those cases, appeal judges are not shy of criticising their junior colleagues when things go wrong. (Most Court of Appeal cases are available free of charge on the British and Irish Legal Information Institute’s website.)

The reason that this matters is that the anti-family court narrative that is currently in vogue is undermining public confidence in an important institution. The family justice system isn't perfect, but in the vast majority of cases it does a good job in difficult circumstances. The independent Family Justice Review in 2011 made minor suggestions for changes to the system, but on the whole was positive in its conclusions about the workings of the system. The people who work in family justice - lawyers, judges, social workers, mediators, financial advisers, guardians and others - are mostly dedicated and hard-working, and they are doing their best to find reasonable solutions to complicated and highly conflicted problems. We shouldn't allow unrepresentative anecdotes to lead us to think that there is some scandal in the family courts, no matter how good the story sounds.

Author's note: I wrote a briefing paper on media access to family

court cases in 2009, funded by the Nuffield Foundation. While I

conduct research into family law and the family courts, I do not

work in the family justice system and have no personal interest in it.

Playing a Straight Bat? Financial Arrangements When A Civil Partnership Ends

This is a post about the Court of Appeal's decision in Lawrence v Gallagher in March 2012, which was the first appeal about financial arrangements following the dissolution of a civil partnership. I offer strong criticism of the Court of Appeal, but for reasons which apply just as much to many of its decisions in heterosexual divorce cases.


On the 29th of March 2012, the first appeal case was heard in England and Wales regarding the financial arrangements made after the breakdown of a civil partnership. The legal principles applicable to post-civil partnership financial arrangements are identical to those that apply when a heterosexual marriage ends - so the real question was whether the fact that the former relationship was between two people of the same sex, rather than between two people of different sexes, would impact on the way those principles are applied.


The facts of the case:

In Lawrence v Gallagher, the two men had been living together as partners since early 1997, and had entered into a civil partnership in December 2007. The relationship was formally dissolved in 2009. They agreed that the case should be treated as if they had been in a civil partnership for nearly 12 years since the legal option was not open to them during most of this time, and they would have availed themselves of it if it had been.

Before they met, both men had bought properties in London; Lawrence's was significantly more valuable than Gallagher's, since he worked in the City and Gallagher was an actor. They later lived in Lawrence's flat, while Gallagher's flat was sold. With the proceeds and additional money from Lawrence, they then bought a large weekend house in the country.

The financial arrangements that the court was asked to address were not straightforward, but the total assets being considered amounted to about £3.8m. By family law standards, this gets the case into the 'big money' category, especially as there were no children to consider. There were two properties, two pension funds (one very large), some shares (which had not yet been awarded), considerable cash savings and some valuable items. The men were also both working, with Lawrence earning considerably more than Gallagher.


The legal principles which applied:

The relevant legal principles for separating civil partners are set out in Schedule 5 of the Civil Partnership Act 2004. Paragraph 21(2) sets out 8 factors to which the court must give particular regard, and it is well known from the equivalent divorce cases under section 25(2) of the Matrimonial Causes Act 1973 that the overriding objective is to achieve a fair and non-discriminatory outcome, with all contributions to a family's well-being presumptively valued equally (see White v White). This overall objective takes into account three broad principles (see Miller v Miller; McFarlane v McFarlane):

1. meeting the parties' needs (generously interpreted)
2. compensating one party for losses incurred for the benefit of the family overall (such as giving up a career to look after house and home)
3. equal sharing of family assets

The decision in the High Court:

In the High Court, Mrs Justice Parker heard the case and gave a 'reserved' judgment (meaning that she went away to think about the case and write her judgment over a few days, rather than giving judgment immediately the hearing ended). She decided that Gallagher should get about 45% of the assets, totalling £1.6m. This included the country house, part of Lawrence's pension, a lump sum of £577,000, and part of the share value once it was obtained. Lawrence appealed to the Court of Appeal.


The appeal to the Court of Appeal:

The important thing to know about appeals in family law cases is that the Court of Appeal is supposed to have a very limited role. The appeal is not a second bite of the cherry for a litigant unhappy with the decision of the first court. The rule is that the Court of Appeal may interfere only where one of the following things has happened (see, eg, Piglowska v Piglowski):

• the judge failed to apply the correct law;
• the judge made findings of fact which were unsupported by the evidence which make the outcome untenable;
• the judge applied the law to the facts in a way which was "outside the generous ambit within which reasonable disagreement is possible".

Moreover, it is important that the Court of Appeal not assume too readily that the judge made 'sloppy' errors. As Lord Hoffmann explained in the Piglowska case:

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. ... These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [which are identical to those applicable in the Lawrence case]."

So what did the Court of Appeal have to say about Parker J's decision in Lawrence v Gallagher? At para 19 of the appeal judgment, Lord Justice Thorpe described her judgment as "careful and conscientious", as referring "very fully and conscientiously" to the relevant authorities, and as "conscientiously apply[ing] the s.25 criteria".

This is high praise, though not surprising. High Court judges are the most experienced family court judges, well used to cases that are both factually and legally complicated - that is their job - and Parker J is widely regarded as a no-nonsense judge. Despite all this, the Court of Appeal interfered with her decision. So let's look back at the three reasons why the Court of Appeal is allowed to interfere:

Did Parker J make a mistake about the law? Clearly not.

Did Parker J make mistakes about the facts of the case? Well, yes, apparently she did make a few small errors, but Thorpe LJ was clear that "that neither individually nor accumulatively would they justify success" for Lawrence in his appeal (para 26).

So it must have been that Parker J made a decision which was "outside the generous ambit within which reasonable disagreement is possible"? Well, it's hard to see how. Let's look at the reasoning.

Thorpe LJ agreed with Parker J that Lawrence should get the London flat and Gallagher the country house. He agreed with her that there was then a need to give Gallagher something more to reflect the facts that (a) the flat was worth more than twice as much as the house, and (b) Lawrence had a much higher future income than Gallagher. (So far, so good for Parker J.)

Then we reach the crux of the case. Thorpe LJ criticised Parker J for not explaining more fully where the sum of £577,000 came from, on the basis that "the route that the judge chose to arrive at a fair outcome, followed too theoretical a map" (para 48).

What?! The Court of Appeal interfered with the discretionary judgment of a highly experienced High Court judge on the basis that she thought about the facts too theoretically in order to achieve a fair outcome? This judgment smacks of Court of Appeal judges doing precisely what Lord Hoffmann told them they were not allowed to do in Piglowska, namely "substitut[ing] their own discretion for that of the judge by a narrow textual analysis which enables them to claim that [she] misdirected [her]self". There was simply no basis for this interference by the Court of Appeal.

The end result was that Gallagher's original £577,000 award was reduced to £350,000, and the division of the shares was removed from the equation entirely.


Discussion:

There are two things to might be said about Lawrence v Gallagher. The first is that it is a little disappointing to see the Court of Appeal concluding the first post-civil parntership case by making the outcome less equal and giving more of the assets to the person with the high-paying job. The whole point of the post-marriage cases is that earning wages is not meant to be more valuable than contributing to family life in other ways. Homosexual couples are no different from heterosexual couples in this way - each brings what he or she can to the relationship - and there is a slightly mercantile feel to the Court of Appeal's judgment that leaves an unpleasant taste in the mouth.

However, that feeling is somewhat lessened by the second point worth noting, namely that this case looks like so many post-marriage cases. It is yet another example in a long list of the Court of Appeal interfering with trial judges for no legitimate reason in order to advance the interests of high wage-earners against their less well-paid former partners. Usually this works to the advantage of working men against their child-raising former wives, but Lawrence shows those principles to be annoyingly universal. 

It looks as if the Court of Appeal judges just can't help themselves. They see a decision that is not what they would have done, and they have to interfere - even though the law is, precisely, that they are not allowed to interfere on that basis. In the Lawrence case, the Court of Appeal changed Parker J's original division of 45/55 to a final division of 40/60. Parker J got the law right, and she made no material errors about the facts - so the Court of Appeal must be trying to tell us that, when the 'right' outcome was 40/60, it was not reasonable for Parker J to think that 45/55 was right?

Come off it. This was an experienced judge who thought about the case carefully and got the law right, and there was no legitimate justification for this appeal to be allowed.

Despite all that, there is no reason to think that Lawrence v Gallagher implies some different approach to civil partnership cases from marriage cases. In fact, it's business as usual - appeal judges sticking their oars in without justification. As Supreme Court Justice Lady Hale said in 2006, and as Lord Wilson repeated just 2 weeks before the Lawrence decision, the Court of Appeal's approach has the effect of "robbing the trial judge of the discretion entrusted to [her] by the law". It's certainly hard not to think that Parker J was robbed of her discretion in this case.

The title of this post was inspired by Jo Miles, Fellow of Trinity College Cambridge, but
she bears no responsibility for the views expressed here, which are mine alone. A fuller
version of the post has since been published in the Journal of Social Welfare and Family
Law, available here: http://www.tandfonline.com/eprint/H7aIPuZs27N2ePVrc7eW/full