Hodge Jones & Allen

Requests by one parent to relocate children abroad after separation or divorce have been a matter of contention for the best part of the last decade, with many both inside and outside the legal profession believing that the test applied by the courts is wrong.

It has seemed to many to be far too easy for one parent to be able to take the children to live in another country, with the impact upon the relationship with the other parent being given insufficient weight.

A recent case, however, called K v K seems to move the goalposts significantly, whilst not completely disapproving of the way judges have been resolving these matters.  Is the law now settled?  What confidence can parents now have in planning their future after divorce or separation?

History

For the last decade, legal disputes about relocation appear to have been governed by a case called Payne v Payne, a case in which this firm acted for the mother who was successful in persuading the court that she should be allowed to relocate to New Zealand with her children after divorce.  The court appeared to say - or at least for the last 10 years people have assumed it said – that the reasonable relocation proposals of a parent who was caring for the children after divorce or separation would generally be approved of by the court.

It was easy, therefore, for lawyers to advise their clients how to go about creating such a plan: make sensible proposals for schooling, housing, finances and contact with the parent left behind, and the court would be likely to wave the proposals through.  Most significantly, this appeared to be the case even if the children themselves seemed somewhat reluctant.  It was also clearly the case even if it was accepted that the children’s relationship with their non-resident parent (usually, of course, the father) would be significantly and perhaps fatally affected.

Voices of Dissent

The world appears to have changed somewhat in the last 10 years.  The rise of fathers’ groups such as Families Need Fathers and Fathers 4 Justice has brought the matter far sharply into the focus both of politicians and the public.  In addition, there has been a growing sense of disquiet within the family justice system that the “rule” in Payne v Payne appears to give insufficient weight to the direct welfare interests of the children, and too much weight to the wishes and feelings of the parent who wants to relocate.  It is often a staple of such applications that the parent wanting to leave expresses in no uncertain terms that their life will be “intolerable” if they are forced to stay in the UK, usually because of a combination of social, financial and familiar factors. The courts have historically accepted such arguments in support of relocation applications.

There has therefore been a groundswell of opinion for a number of years that Payne v Payne should be overturned, presumably by getting a case to the Supreme Court who could then decide that the case was wrongly determined and substitute rules of their own instead.  The only alternative would be for Parliament to introduce legislation but successive governments have appeared unwilling to interfere directly into family justice matters in this way.

The Judgment in K

K v K involved a family in which after separation, the children spent nine nights of every fortnight with their mother and five nights with their father.  This was as a result of a “shared care” or “shared parenting” agreement of the type that the courts and the Ministry of Justice appear keen to promote.

The case went to the Court of Appeal.  The decision of the court, whilst not in terms saying that Payne v Payne was wrongly decided (because they cannot) makes clear that there appears to be a great deal of judicial enthusiasm for limiting not only the number of cases that the Payne v Payne “test” can be applied to, but also questioning whether there is in fact a test laid down by that case at all.

The court’s judgment in particular says the following matters of great importance:

1. Payne v Payne dealt with a case in which the children had a clear primary carer.  Its ambit should be limited to such cases.  If there is a genuine shared care arrangement, the Payne v Payne test does not apply;
2. The label of “shared care” or “share residence” is unimportant.  What is important is the situation on the ground and the reality of the children’s daily lives;
3. The court’s judgment in Payne v Payne was said to be guidance only, and its importance must not be overstated;
4. There is no presumption that the reasonable plans of a primary carer will always be facilitated unless there is a compelling reason to the contrary.  Each case must be decided on its own fact and merits with the welfare of the children being the paramount consideration.

Conclusion

One cannot overstate the significance of this judgment to cases involving overseas relocation.  It seems clear that in the future it will be more difficult for parents to relocate overseas against the objections of the parent left behind.  They will have to do more than just tick the relevant boxes.

However, this comes at the price of uncertainty.  If the Payne v Payne test is not really a test at all and cannot be relied upon, what then is the test that the courts will apply in deciding whether it will permit children to relocate abroad?  We will have to wait and see.  For many families, however, this may well create further uncertainty and, unfortunately, further recourse to the courts, at least in the short term until matters are clarified.

Disclaimer

This briefing note is intended merely to provide a summary of the law in this area and is not a comprehensive guide. It is not intended to provide legal advice for specific cases. The law and practice in this note is stated as at November 2011. Hodge Jones & Allen LLP 2011.