Family Law

Child Arrangements Cases

Payne v Payne [2001] EWCA Civ 166

Key Point

• In relocation cases, the child’s welfare is paramount. While there is no presumption in favour of the relocating parent, the court gives significant weight to the genuine and reasonable relocation proposals of the primary carer, since refusal may negatively affect both parent and child.

Facts

• The parties married and then had a daughter in 1997.
• In 1998, the mother took the child to New Zealand, but custody proceedings there ordered the child’s return to the UK.
• In UK proceedings, under s.8 Children Act 1989, the mother was granted a residence order and the father a contact order. The mother was also prohibited from removing the child from the jurisdiction.
• The mother then sought to permanently relocate with the child to New Zealand under s.13(1)(b) CA 1989.
• Father opposed the application, and applied for a residence order himself.
• The trial judge refused the father’s application, arguing:
  • Removing the child from the jurisdiction was not in her best interests.
  • Removing the child would infringe his Art.8 ECHR right to family life.

Issue

• Whether the court’s previous approach in relocation cases - giving weight to the reasonable and genuine relocation proposals of the custodial parent - created an unlawful presumption in favour of relocation, infringing Article 8 ECHR, and whether the trial judge had properly applied the paramountcy of the child’s welfare?