Welfare principal has pride of place and gender biased no place

Court of Appeal confirms the “welfare principal” has pride of place and gender biased has no place in leave to remove applications - Re: F (a child) (international relocation cases) [2015] EWCA CIV 882 

Lord Justice MacFarlane in giving judgment in the above case said of the guidance outlined in Payne v Payne [2001] 1FLR 1052 , the previous governing authority in leave to remove applications that :

“In the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context it was intended is so redolent with gender based assumptions as to the role in relationships of parents with a child”. 

The case involved an application by a mother to remove a 12 year old child from the jurisdiction to reside in Germany.  Lord Justice MacFarlane went on to state that the guidance questions identified in Payne “May not be relevant on the facts of an individual case and the court would be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it”.  The Court of Appeal reaffirmed that it is the welfare principal and the welfare checklist that must guide judge’s decisions in Children Act cases. 

The mother  made an application under Section 13 (1) of the Children Act 1989 to remove the child from the United Kingdom.  Such an application is governed by the welfare principal, namely that “the child’s welfare shall be the court’s paramount consideration”.  Lord Justice Ryder, in giving the lead judgment, made it clear that although the welfare checklist in Section 1 (3) of the Children Act is not a necessary part of the court’s analysis of a Section 13 application, it is nonetheless a “helpful aid memoir”.  The father had made a cross application for a child arrangements order and therefore the court was obliged to consider the welfare checklist in relation to that application. 

 

The guidance given in Payne is summarised as follows:

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

Is (the father’s opposition) motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive.  What would be the extent of the detriment to him and his future relationship with the child were the application to be granted? To what extent would that be offset by the extension of the child’s relationship with the maternal family and homeland?
What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal? “

Lord Justice Ryder said that “with the benefit of hindsight the continued use of the Payne guidance by the court’s without putting it into the context of a welfare analysis perpetuated the problem.  Lord Justice Ryder went on to criticise the gender based assumptions that the Payne guidance seems to offer and bemoans the absence of any emphasis on the child’s wishes and feelings and indeed the participation of the child in the decision making process.

There is no presumption in favour of the principal carer and guidance is just what it means, guidance.  The Payne guidance identifies a number of factors which will or may be relevant in any relocation case.  The court determines that there needs to be a welfare analysis of each of the party’s proposals and a welfare analysis is a requirement in any decision about a child’s upbringing.

The father’s appeal against the original judge’s decision to allow the mother to relocate to Germany was successful because the trial judge at no stage took into account “any erosion in the quality of the relationship between the father and the daughter” if the child moved to Germany.  That factor had to be high on the list of important questions that should have been evaluated.  Here it is clear the court also took into account the fact that the mother had fought against any increase or development in the father’s relationship and contact with the child.  In this case the trial judge focused too much on the Payne guidance and not enough on a welfare analysis. The relocation order was set aside and a re-hearing ordered. 

The case shows the importance of a very detailed analysis of all of the factors in respect of both the applicant’s case and the respondent’s case.  That analysis has to be child focused under the welfare principal and must, as far as possible, involve the child’s wishes and feelings being taken into account. 

David Emmerson is a Partner in the Family Law Team at TV Edwards and is in charge of Family Dispute Resolution and Family Finance.