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.

Relocation Disputes: Approaches in England and New Zealand

It's just a couple of weeks now until the publication of Relocation Disputes: Law and Practice in England and New Zealand (Hart Publishing, pictured). "Finally", you say, "the ideal stocking-filler present that I've been waiting for!" I'm fully supportive of that idea, so for those who aren't tempted enough by the lovely Edward Hopper on the cover ("Route 6 Eastham", 1941), here's a little more about the book.

This book started life in 2007, when I began my doctorate at the University of Oxford. I was interested in looking at how the family justice system deals with cases involving children, and a colleague had suggested that relocation disputes might make an interesting case study. Relocation cases, which I've written about here a couple of times before - see here, here and here for the main posts - are disputes between separated parents where one of them (usually but not always the mother) seeks to take the child to live somewhere else, and the other parent objects to that proposal. The 'somewhere else' can be a relatively short distance away, such as the other side of a large city or another nearby town, but in terms of cases which reach the attention of the law they more commonly involve longer distances, and in particular they often involve proposed international moves.

Relocation cases are commonly thought by judges and lawyers to be amongst the most difficult cases that they deal with between parents. While there are exceptions, in general what you see in a relocation dispute is a conflict between two very good, very committed parents, both of whom have legitimate desires and plans regarding their children. The legal framework governing the resolution of these disputes is actually quite straightforward in most jurisdictions. In England and Wales, s 1 of the Children Act 1989 makes the child's welfare the court's paramount considerations, while in New Zealand s 4 of the Care of Children Act 2004 makes the child's welfare and best interests the paramount consideration. The difficulty and complexity stems from the fact that we have to work out what that actually means in the relocation context.

In order to do that, I started by going back through the reported cases. The first, a case called Hunt v Hunt, comes from 1884, but the modern principles began to be developed by the English Court of Appeal in 1970, in a case called Poel v Poel. This case guided the courts in both England and New Zealand for many years. It was abandoned by the New Zealand courts in 1995, with their Court of Appeal decision in Stadniczenko v Stadniczenko, and was superceded in England by the 2001 Court of Appeal decision of Payne v Payne. In Chapter 2 of the book, I look at these shifting patterns in the case law, and at how the legal principles evolved and were interpreted and re-interpreted over the years.

But cases in appeal courts and in the official law reports can only tell you so much. I wanted to know what was really happening on the ground, and how those professionals who have to use the law in their work saw it. So I set off and interviewed trial judges, barristers, solicitors and welfare advisers who were experienced in relocation cases in both England and New Zealand. The views and experiences of the 44 men and women who talked to me as part of that study form the core of this book.

Chapter 3 contains the real comparison between the two jurisdictions and their quite different ideas about what 'welfare' means in the relocation context. I gave all my participants three identical case studies about different types of relocation disputes and asked them to tell me what factors they thought would be important in coming to a decision, and what the likely outcome would be if the case went to court. The enormous variation in the approaches of participants in the two jurisdictions was amazing, and the 'classic relocation case', involving a hypothetical child called Tom whose mother wanted to move to America with her new American husband, was the one that showed up the differences in approach most starkly.

From there, I focus in on the two jurisdictions in turn, asking practitioners to talk about their general experiences of relocation law and to evaluate the positive and negative aspects of their system. These discussions reveal a wealth of information about the practical working of the law, and about lessons that can be learnt both in terms of working well within the existing law and in terms of possible law reform.

Reform of the law is indeed the focus of the final chapter of the book. Relocation is one of the most controversial areas of family law, and in many jurisdictions around the world there is discussion about whether they can be dealt with better. I review a number of possible suggestions that have been put forward, and end with a discussion of an idea of mine which comes out the study.

Obviously I can't tell you if it's any good, but Mr Justice Peter Jackson of the High Court in London says in a review for the cover that the book "holds up a mirror to what we do in relocation cases, and draws a map of where we might want to go. More than that, we see how lawyers and judges think about hard decisions, and how studies of this kind can help us think more clearly."

--
Relocation Disputes: Law and Practice 
in England and New Zealand is published 
by Hart Publishing on 17 December 2013.

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?

--
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.

"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.