Sorry for the hiatus, but was on paternity leave after the wonderful Mrs McKenzie produced yet another beautiful baby McKenzie. I have been doting on my son, as new father’s should do.
I did keep one case in my list though; a Leave to Remove case at Circuit level in England. How I wish I hadn’t as I am thoroughly ashamed of what currently passes as binding precedent in the area of International Relocation.
Payne-v-Payne [2001] EWCA Civ 166 is supposedly the leading authority, and for those of you not familiar with the area you should read the case here. The latest case of note is Re D (Children) [2010] EWCA Civ 50 which was an unsuccessful permission to appeal hearing by a litigant in person father. There is a transcript of the judgement and some comment on the Family Law Week site here.The site contains the essential links, including an interesting article by Clare Renton here.
Case was listed for 2 full days and the father had to sit and listen to 2 days of evidence from mother and stepfather, who had already moved out to Australia (stepfather not mother and stepfather). The child was 8 rising 9 and had told CAFCASS on the six occasions she was spoken to by CAFCASS that she wanted to live with her dad. CAFCASS noted that she was bright and articulate.
Father of course was a litigant in person and I was granted a Right of Audience for the final hearing. Counsel was a male barrister who was dignified, knowledgeable and courteous. As seems to be the norm in England, there was no solicitor in attendance.
Leave to remove was granted, despite father having what I and others viewed to be a winnable case.
I can’t say much more as the case is soon to darken the doors of the Court of Appeal, and the N161 is being worked on at this moment.
I hope that the comments of Wall LJ who is now the President of the Family Division still stand where he said that:-
33…There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.
34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard. The question, to my mind, is twofold: (1) has the time come to reconsider Payne v Payne; and (2) is this the right case? I propose to concentrate on the latter question, since in my judgment both have to answer “yes” if permission to appeal on this ground is to be granted.
I note with healthy scepticism that his Lordship did not answer the question posed in the first limb of his own test. It does not follow from his comments that the now President supports a review of Payne, and even if he does he will likely be opposed by some other senior jurists as well as those groups with an ideological and vested interest, who are well resourced when it come to commissioning and producing ‘research’.
{ 13 comments… read them below or add one }
Fairly sceptical too, and yet he did raise the question… It is a nettle which must be grasped sooner or later and his comment will have increased the pressure just a little.
As the LIP father in Re D (Children) [2010] EWCA Civ 50, I am, of course, immensely sorrowful that my own children’s future psychological, educational and developmental welfare has been placed in jeopardy by a judiciary which is seemingly incapable of understanding or giving due respect to modern scientific evidence. Nevertheless, my personal disappointment is somewhat ameliorated by the knowledge that my appeal application may have helped to some degree to change things for the better for other hapless children caught up in relocation cases.
I am, of course, appealing LJ Wall’s judgement at the European Court of Human Rights.
Best wishes
Mr BD
My thoughts go out to your children, BD. We’re in a similar situation and it begs the question as to how perverse the law can be and how much evidence the judiciary will require before they are willing to pay more than lip service to the possibility of reviewing Payne. That father hasn’t seen his child in ten years. Many fathers haven’t seen or heard from their children. The emotional, psychological and physical consequences for these children will never be truly known because of the contempt issues that extend to children that are the product of leave to remove.
I would invite Sir Nicholas Wall to indicate clearly which case is the right case and ensure that it is heard in a court that is able to overturn Payne. If the judiciary are closing ranks, the legislative of the country must intervene as a matter of urgency.
Hello NBW
Thank you for your kind comments.
Your premonition that the judiciary would “close ranks ” appears to have been pretty accurate!
In the case of Re W – http://www.bailii.org/ew/cases/EWCA/Civ/2011/345.html – his Eminence Sir Nicholas Wall does a U-Turn on his 2010 critique of Payne!
Mr BD
An open letter from the litigant-in-person father in Re D (Children) [2010] EWCA Civ 50
In the “postscript” of Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall, President for the Division of the Family, made reference to my case, Re D (Children) [2010] EWCA Civ 50, as follows:
128. I fear that too much weight may have been given to some words of mine spoken in a judgment which I gave in an application to this court for permission to appeal in a relocation case. Whilst I do not resile from most of what I have said, I am of the clear view that undue prominence has been accorded to Re D, in which I refused a litigant in person permission to appeal against a relocation order, and in which I went out of my way to explain in detail to him why, in my judgment, his application had to be refused.. During the course of my judgment, I said: – “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.”
May I respectfully remind Sir Nicholas of paragraph 2 of his judgment in Re D:
2. I heard oral argument from the applicant in person (assisted by his McKenzie friend) on 20 January 2010. The applicant read to me a detailed submission which he had prepared, and produced a substantial bundle of documents which, in the time available to me, I had not had the opportunity to read. I therefore decided that the fairest way of dealing with the application was to reserve judgment, both in order to reflect carefully on the case and to give myself time to read all the material which the applicant had provided. This I have now done.
Sir Nicholas eventually pronounced judgment in Re D on 9 February 2010. He gave himself three weeks in order to “reflect carefully” on the arguments, and to read the extensive and detailed body of scientific child-welfare evidence and research which I had exhibited at my final hearing in September 2009 (most of which subsequently appeared in The Custody Minefield’s Relocation Reports). Re D was not an immediate, ‘ex tempore’ judgment. Plainly, these were not merely “some words of mine spoken in a judgment”, as Sir Nicholas now puts it. They were carefully considered words, and Sir Nicholas specifically released Re D into the public domain in order that the legal profession could take due note of his proclamations.
Sir Nicholas went on to give a public interview in August 2010, in which the following question was posited:
“In light of a) your comments in Re D, b) the Washington Declaration c) the new research from Dr Marilyn Freeman and Professor Parkinson and now d) the comments of Mostyn J in Re AR, where are we now on international child relocation? Is it still a question of finding a rich or tenacious (or both) litigant to push the right case to the Supreme Court before any effective review of Payne v Payne can take place?”
Sir Nicholas answered as follows:
“As I said recently in Re D [2010] EWCA Civ 50 (which I am delighted to see that you have all read) there is a perfectly respectable argument for the proposition that
Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent. However, all relocation cases are (1) very difficult; and (2) highly fact specific. Re D was plainly not the case upon which to base a re-appraisal of Payne. Furthermore, as I also made clear in Re D, we operate a doctrine of precedent and it will be either for the government to change the law or for the Supreme Court to reconsider the issue in a suitable case. I do not think that a litigant would necessarily have to be either rich or tenacious to get to the Supreme Court…”
In August 2010, therefore, Sir Nicholas was “delighted” with the attention, weight and prominence being accorded to his pronouncements in Re D.
However, a mere eight months later, he now says that “too much weight” and “undue prominence” have been accorded.
What is his explanation for this obvious change in opinion? Is Sir Nicholas attempting to down-play the significance of his criticism of Payne v Payne in Re D and, if so, why?
Subsequent paragraphs in Re D read as follows:
34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard…
35. In my judgment, this case is not the right case for a challenge to Payne v Payne. In the first place, on the facts, the respondent makes a powerful case for relocation. Secondly, there is currently no legislation requiring a different approach in place, with the consequence that were this case to go the Supreme Court it is probable that – were the Supreme Court to take the view that insufficient consideration had been given to the harm likely to be suffered by the children by relocation and alteration of their current way of life – the Supreme Court would order a re-trial, rather than saying that the judge, in the exercise of her discretion, was plainly wrong. In my judgment, it is contrary to the interests of the children to impose a fourth hearing on this family.
It is therefore very plain that – in February of last year, at least – Sir Nicholas was firmly of the mind – and had “no doubt” – that there was a “compelling reason” for a review of Payne to be heard by the Supreme Court. The only obstacle appeared to be the need for him to find what he referred to as the “right case”. The plain conclusion to be drawn from Re D is that, if Wall had been presented with a suitable case, he would indeed have given the necessary permission for it to progress to the Supreme Court. The Court of Appeal is the only route to the Supreme Court, as Sir Nicholas himself made very clear in Re D. To date, no such permission has been given to any Relocation case.
Sir Nicholas has never given any indication as to what he would consider to be a ‘suitable’ case, although it is fair to surmise that the factor of delay is pivotal. Indeed, this was a major reason given by Sir Nicholas for refusing to grant permission to appeal in Re D (see Paragraph 35 above).
In addition, quoting Sir Nicholas in Re W:
11. … in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
However, significant delay is, of course, an inevitable consequence for any case to progress to the Supreme Court (to say nothing of the associated Dickensian costs, which are beyond the means of all but the wealthiest of litigants). On the ground of delay alone, therefore, it seems highly improbable that the Court of Appeal would permit any Relocation case to progress to that higher court. The deleterious consequences for hundreds of children as a result of this ludicrous situation ought to be obvious to everyone.
The afore-mentioned conclusion regarding Re D is re-iterated by Lord McNally, (Minister of State at the Ministry of Justice) in his letter to me (via my MP, Alistair Burt), dated 22 December 2010. I quote:
“The President of the Family Division has indeed signalled that if a suitable… case were to be appealed to the Supreme Court this might well result in a reappraisal of the principles set out in Payne v Payne.”
In the same letter, Lord McNally refers to Sir Nicholas’s criticism of Payne in a second eponymous Relocation case (not to be mistaken with my own case) Re D (A Child) [2010] EWCA Civ 593 as follows:
“The President acknowledged that…Payne v Payne…places too great an emphasis on the wishes and feelings of the relocating parent (Paragraph 4):
4. “…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.
In this second judgment, Sir Nicholas describes the case against Payne as being “powerful”. Would Sir Nicholas now have us believe that “too much weight” may also be erroneously accorded to this second judgment, and is he fearful that “undue prominence” may also now be ascribed to it?
Or is it, instead, the case that, contrary to his claim, Sir Nicholas is indeed now seeking to “resile” from his carefully considered criticism of Payne v Payne (as expressed by him in at least two of his judgments in 2010)? And, if so, what are the reasons for such a volte-face?
In his most recent judgment, Re W, Sir Nicholas supports the call from the researcher, Prof Freeman, for yet more research (see paragraph 129 below). Remarkably, Sir Nicholas now appears to deny the very existence of the extensive and irrefragable scientific evidence and research, which had been presented to him in full in Re D. Evidence which he had read over the course of three weeks; evidence which he had described as being “compelling”; evidence which had led him to make his public critique of Payne v Payne in two judgments; evidence which now appears to be no longer of any importance to him.
Does Sir Nicholas really need to wait for yet more research, when the existing research has been so “compelling” for over a year? How much evidence does he need?
Interestingly, Sir Nicholas is very able and willing to make what are essentially psychological and sociological determinations in the complete absence of any scientific evidence or research. Where is the scientific evidence, for example, to support his assertion in Re W that a meaningful, wholesome and loving parent/child relationship can be facilitated by means of Skype?
There appears to be a profound illogicality in Sir Nicholas’s treatment of scientific evidence and research.
The beauty of Science is that if a theory is falsified by evidence it is immediately cast out by the scientific community. The ugliness of Law is that if a law is undermined, discredited and highly criticised (even by the President himself), it nevertheless remains fully in place, wreaking harm to hundreds of children.
In the same judgment, Re W, Sir Nicholas appears to abdicate responsibility for his judge-made relocation law (Payne v Payne) and ‘passes the buck’ to Parliament. I quote:
129. “It further occurs to me that unless and until we have the research identified by Professor Freeman, and unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 (paramountcy of welfare), relocation cases will remain fact specific, the subject of discretionary decisions, and governed by Payne v Payne.”
In contrast, however, the view of the Ministry of Justice concerning Relocation law is clearly set out by Lord McNally in his letter to me of December, as follows:
“The Children Act 1989 already provides statutory protection to safeguard the welfare of children in cases of Relocation…the Act clearly requires the court to make the welfare of the child its paramount consideration…”
In other words, Lord McNally places responsibility for Relocation law firmly in the lap of the judiciary. Lord McNally also stated that it was for David Norgrove of the Family Justice Review to make recommendations regarding Relocation law (and he kindly confirmed to me that the latest Custody Minefield Report had been passed to the FJR panel). However, as we are all aware, Mr Norgrove declined to make any recommendations whatsoever concerning Relocation law in his recent Interim Report.
So we have gone full circle. No one person in a position of power appears able or willing to act. Each passes responsibility to another. Meanwhile, hundreds of children continue to be removed from their fathers, their extended families, their schools, their friends, their cultural environment and their general way of life. Children are expected to exhibit steely resilience in the face of such tremendous upheaval. In contrast, adult mothers are not expected to have any such resilience were their applications for LTR to be refused. These expectations are scientifically, morally and socially groundless.
The gravamen of the case against Payne v Payne is actually very simple to articulate. In determining the ‘paramount interests’ of the child, should the judiciary base its judgments upon readily-available, extensive, irrefragable, independent and corroborating contemporary scientific evidence and research, or, instead, upon un-scientific and plainly out-of-date 1970’s ‘common sense’ assumptions concerning the emotional fragility of the ‘weaker sex’, and the un-importance of a father in the development of a child? The colloquial term, ‘no-brainer’ springs immediately to mind!
Furthermore, it cannot be enough for a judge simply to declare that he has considered the ‘paramount interests’ of a child. If so, a judge would be quite at liberty to order that a child be flogged prior to its being removed to Australia as long as he remembered to ‘tick the box’ and declare in his judgment that he had carefully considered the child’s ‘paramount interests’, in accordance with the Children Act.
When considering a child’s paramount interests – in other words, its psychological, developmental and educational well-being – the judiciary must be made to give full weight and consideration to the plethora of contemporary psychological and sociological scientific evidence and research.
To quote Sir Nicholas Mostyn of the High Court, Relocation law must “bring into full account” the “emerging body of significant research in various jurisdictions” (Re AR (A Child: Relocation) [2010] EWHC 1346). Can anyone reasonably argue against Sir Nicholas Mostyn’s recommendation? That urgent recommendation was made in June 2010. It appears to have fallen on deaf ears. Any further delay in a reappraisal of Relocation law would be an abominable indictment, both of our Government and particularly of our judiciary.
Yours most sincerely
Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)
A summary of the arguments against Payne v Payne
The application of the principles, suppositions and ideology of Payne v Payne, both by the judge of first instance and by the Court of Appeal (it also being bound by its own precedent):
a) Affords too great a weight to the wishes and feelings of the applicant parent, notwithstanding the sincerity and ‘genuineness’ of his/her motives (mercy killers have sincere and genuine motives)
b) Affords too great a weight to the well-researched plans of the relocating parent
c) Relegates the harm done to the child due to a permanent breach of its ‘meaningful’ relationship with the left-behind parent
d) Fails to afford sufficient weight to the child’s wishes and feelings
e) Fails to afford appropriate credence or weight to abundant and irrefragable scientific research and evidence demonstrating the deleterious psychological, developmental and educational consequences a child is likely to experience in the absence of a ‘meaningful’ relationship with both its parents
f) Fails to give appropriate credence or weight to the scientific evidence demonstrating that a ‘meaningful’ and wholesome relationship cannot be adequately maintained on the basis of infrequent contact in motel rooms or via electronic media such as Skype
g) Affords too great a weight to the un-scientific and un-proven supposition – pontificated upon in the case of Poel in 1970, but still remaining the legal bedrock of relocation law – that a parent’s disappointment and frustration at a refusal of his/her application would impact upon him/her so as to cause the child significant medium to long-term harm. There remains no evidence whatsoever for this 40-year-old supposition
h) Fails to consider that the happiness and well-being exhibited by a child as a direct consequence of its remaining in a meaningful relationship with both parents and in its familiar environment will, in and of itself, likely generate considerable happiness and contentment in the so-called ‘primary carer’ (happy child, happy parent)
i) Fails to consider that, if a primary carer, initially wishing to relocate, is then made fully aware of the scientific evidence which plainly demonstrates the long-term benefits to their child from its remaining in a meaningful relationship with both its parents, s/he would either withdraw the application, or would be far less disappointed or devastated by a refusal of the application, realising as s/he would that remaining in the UK would be serving the child’s best long-term interests (what good parent does not happily and proactively make numerous sacrifices for the benefit of their child?)
j) Fails to acknowledge the benefit to a child of maintaining the stability and familiarity of its social, cultural and educational environment, particularly at a time when that child is faced with having to deal with the trauma of the separation of its parents
k) Fails to take into proper account the major societal shifts in the organisational dynamics of modern family life which have undoubtedly occurred since 1970, in particular, the involvement and thus the importance of a father in the psychological, sociological and educational development of his children. In Payne, LJ Thorpe stated that he had no evidence to support this assertion. That evidence now exists
l) Fails to consider that the medium to long-term harm to a child as a direct consequence of overseas removal is likely to be more significant than any short-term harm resulting as a consequence of the delay inherent in proceeding to the Supreme Court
m) Fails to consider that a child’s human rights and ‘paramount interests’ cannot be best served by permitting a legally-untrained and emotionally-involved litigant-in-person father to formulate and present a legal case on its behalf. What adult (or judge!) would accept being legally represented in court by a layperson? New Zealand automatically appoints children with a lawyer to represent their best interests in LTR cases
n) Fails to appreciate that, in hearing Ancillary Relief matters separately and at a later date, little or no detailed consideration is given to the important issue of whether or not overseas contact orders are affordable and achievable in practice
o) Places an unjustified emphasis upon the ‘facts’ of a case. This fails to appreciate that:
i) The suppositions and ideology of Payne steer the judiciary towards particular ‘facts’ and away from other ‘facts’. In other words, they focus only on those ‘facts’ which seemed relevant when the case is viewed through the distorting ‘lens’ of Payne
ii) It is usually only these particular ‘facts’ which appear with any prominence in judgments
iii) The unwarranted weight and erroneous interpretation ascribed to these particular ‘facts’ by Payne ultimately determines the judgment
For example, Relocation cases often contain numerous and detailed ‘facts’ pertaining to the appearance and demeanour of the applicant parent in the witness stand. These ‘facts’ are given great weight by Payne and the interpretation placed upon them by Payne is that the children will experience long-term harm as a result of the applicant parent’s disappointment. Judgments, therefore, are arrived at primarily as a consequence of the application of the principles and ideology of Payne, and not, as is constantly asserted by the Court of Appeal, as a consequence of the ‘facts’ per se.
Other ‘facts’ are given little weight by Payne, and may not even be recorded in the judgment. For example, facts concerning the child’s anxieties about having to relocate overseas; its preference to remain in the UK and in contact with both parents, to remain at its school and in contact with friends; the applicant’s nexus of friends; the applicant’s general resourcefulness, work experience in the UK and so on. These and many other ‘facts’ are either absent from judgments or are given little weight precisely because the suppositions and ideology of Payne deemed them to be of little or no importance
p) Completely fails to understand or appreciate that a judgment in favour of removal may very well be considered to be ‘powerful’ but ONLY if it is assessed using the 1970’s principles, directives and ideology of Payne.
One might consider a judgment to imprison a black man for entering a ‘whites only’ establishment to be equally as ‘powerful’, if one makes ones assessment using the principles, directives and ideology of a 1970’s South African Apartheid Law!
That is precisely the error being made by our Court of Appeal.
It believes that it is acting in the ‘paramount interests’ of the child, just as South African Appeal judges probably believed that they were acting in the best interests of South African society.
Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)
19 June 2011
Continued psychological, developmental and educational harm and disadvantage to hundreds of British children in ‘Leave to Remove’ Relocation cases, as a direct consequence of the continued application of and reliance upon the outdated and discredited principles, suppositions and ideology of Payne v Payne (2001)
Dear Lords, Ladies and Gentlemen
I address this letter to all of the following recipients. For the benefit of new recipients, I have attached my open letters dated 20 December 2009, 14 February 2010, 14 March 2010, 18 November 2010 and 5 April 2011.
Rt Hon Kenneth Clarke / Secretary of State for Justice
Rt Hon Lord McNally / Minister of State / Ministry of Justice
Rt Hon David Cameron / Prime Minister
Rt Hon Alistair Burt MP
Sir Nicholas Mostyn / Justice of the High Court / Family Division
Mr Justice Coleridge / Justice of the High Court / Family Division
Sir Nicholas Wall / President of the Family Division / Royal Courts of Justice
Lord Justice Thorpe / Head of International Family Justice / Royal Courts of Justice
Lady Justice Black / Royal Courts of Justice
Rt Hon Baroness Butler-Sloss GBE / House of Lords
Lord Phillips / President of The Supreme Court
Lady Hale / Justice of The Supreme Court
Sir David Norgrove / Family Justice Review / Ministry of Justice
Mr Ken Sanderson / CEO, Families Need Fathers
Mr Michael Robinson / The Custody Minefield
Dr Maggie Atkinson / Children’s Commissioner for England
Mr Clive Coleman / Legal Affairs Correspondent / BBC
Mr Christopher Booker / The Telegraph
Ms Rosemary Bennett / The Times
Mr Luke Salkeld / Daily Mail
Dear Lords, Ladies and Gentlemen
A Summary of the Position of the Judiciary:
After reserving judgment in Re D (Children) [2010] EWCA Civ 50 and giving himself three weeks in which to “reflect carefully” on the arguments presented by the litigant-in-person father, and to read the fifteen contemporary scientific papers exhibited – giving detailed evidence of the psychological, developmental and educational harm and disadvantage children are likely to experience in the absence of a close, frequent and meaningful relationship with both parents – Sir Nicholas Wall wrote in his publicised judgment that…
“…there is a perfectly respectable argument for the proposition that [Payne v Payne] places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent… As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a ‘compelling reason’ for an appeal to be heard.”
However, one year later, in Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall performed an inexplicable U-Turn on the issue of Payne v Payne, declaring:
“I fear that too much weight may have been given to some words of mine spoken in a judgment which I gave in an application to this court for permission to appeal in a relocation case. Whilst I do not resile from most of what I have said, I am of the clear view that undue prominence has been accorded to Re D…”
WHO, though, had been guilty of according “too much weight” and “undue prominence” to Re D????? Let’s find out…
a) SIR NICHOLAS WALL himself on at least 2 occasions!
Firstly, in an interview Sir Nicholas gave to ‘Family Affairs’ on 12 August 2010:
“In light of a) your comments in Re D, b) the Washington Declaration c) the new research from Dr Marilyn Freeman and Professor Parkinson and now d) the comments of Mostyn J in Re AR, where are we now on international child relocation? Is it still a question of finding a rich or tenacious (or both) litigant to push the right case to the Supreme Court before any effective review of Payne v Payne can take place?
“As I said recently in Re D (Children) [2010] EWCA Civ 50, (which I am delighted to see that you have all read) there is a perfectly respectable argument for the proposition that Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent. However, all relocation cases are (1) very difficult; and (2) highly fact specific. Re D was plainly not the case upon which to base a re-appraisal of Payne. Furthermore, as I also made clear in Re D, we operate a doctrine of precedent and it will be either for the government to change the law or for the Supreme Court to reconsider the issue in a suitable case. I do not think that a litigant would necessarily have to be either rich or tenacious to get to the Supreme Court, but a finely balanced case is likely to turn on the trial judge’s exercise of discretion, with which it may be difficult to interfere.”
http://www.familylaw.co.uk/articles/Sir-Nicholas-Interview-120810
Secondly, in a speech Sir Nicholas gave to the AGM of the ‘Families Need Fathers’ on 20 September 2010:
“I recently had to decide an application for permission to appeal in a “relocation” case [Re D (Children) [2010] EWCA Civ 50]. The case did not involve Australia or New Zealand, but what used to be called Eastern Europe, and in my view the application had to be refused. The father who argued it, however, launched a “root and branch attack” on Payne v Payne, and I reserved judgment so that I could consider his arguments carefully.
“I went on to deal with whether or not there was a “compelling reason” for the Court of Appeal to hear the case. …There has been considerable criticism of Payne v Payne in certain quarters and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent and… relegates the harm done to children by a permanent breach of the relationship which the children have with the left-behind parent…as I say, this is a perfectly reasonable argument and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard…”
http://www.familylaw.co.uk/articles/Wall200910
b) ANDREW SHAW of the Ministry of Justice.
Following an open letter I had sent to the Justice Minister and to the Prime Minister concerning the issue of Relocation, Mr Shaw replied on behalf of the Government on 8 March 2010 as follows:
“I confirm that the Ministry of Justice are carrying out a Review of the Family Justice System. The Review will aim to ensure that the Family Justice System supports good quality contact with both parents, as it is this which contributes to better outcomes.
Where precedent is cited, it is for the Courts to decide whether that is relevant. In your letter you mentioned Payne v Payne which is the leading judgment in Relocation cases. For Payne v Payne to be challenged and potentially overturned this would have to go to the Supreme Court in a case where there was genuine reason for an appeal to challenge the precedent set in Payne v Payne on the basis that the principles were mis-stated. With that in mind, you may be interested to learn that Nicholas Wall LJ in his judgment in Re D (Children) [2010] EWCA Civ 50 on 9 February 2010 acknowledged that there is a respectable argument that the Court of Appeal judgment in Payne places too great an emphasis on the wishes and feelings of the relocating parent (paragraph 33):
‘There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done to children by a permanent breach of the relationship which children have with the left-behind parent.’
LJ Wall went on to say (paragraph 34):
‘This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.’
Lastly, you mention in your letter about various scientific research papers… Whether any research influences future court decisions is a matter for the judiciary. The Lord Chief Justice has responsibility for judicial training. His responsibility is exercised through the Judicial Studies Board, which is an independent body chaired by Lord Justice Maurice Kay.
c) SIR NICHOLAS MOSTYN / High Court Judge of the Family Division.
“Mostyn J considered the authorities including Poel v Poel [1970] 1 WLR 1469, Payne v Payne [2001] 1 FLR 1052… and Re D (Children) [2010] EWCA Civ 50”.
Paragraph 9 from Mostyn’s judgment in Re AR (A Child: Relocation) [2010] EWHC 1346 reads as follows: “More recently, in Re D (Children) [2010] EWCA Civ 50 Wall LJ (as he then was) acknowledged the strength of the criticisms mentioned above. He stated at paragraph 33 that: There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.”
http://www.familylawweek.co.uk/site.aspx?i=ed60336
d) PROFESSOR MARILYN FREEMAN / Professor of Family Law at London Metropolitan University, co-director of ‘The Centre of Family Law and Practice’ and Head of the Reunite Research Unit.
In a speech to the University of Western Cape Conference on 18 March 2010, the learned Professor stated:
“Lord Justice Wall, in a hearing for permission to appeal a leave to remove (relocation) order, added his qualified support for a review of Payne v Payne on 9th February 2010 when, although deciding that the case he was hearing was not the right case for a challenge to Payne before the Supreme Court and thus refused the father’s permission to appeal, he stated:
“There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent”. He went on to say: “This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a ‘compelling reason’ for an appeal to be heard” (Re D (Children) [2010] EWCA Civ 50). There are therefore signs that the Court of Appeal may be willing to revisit this position.”
http://www.millerdutoitcloeteinc.co.za/Paper%20-%20Freeman%20Marilyn.doc
e) HENRY SETRIGHT QC / Recorder and Deputy High Court Judge (Family Division)
In a presentation at the London Metropolitan University the eminent QC reiterated Wall’s critique of Payne v Payne in Re D (Children) [2010] EWCA Civ 50
(see slide 19 of 26)
http://www.londonmet.ac.uk/fms/MRSite/acad/lgri/CFLP/Relocation/Relocation%2023%20Powerpoint%20May%202011.ppt#272,13,Shared
f) ANNE THOMAS / Senior Partner at International Family Law Group, member of Reunite, past Chair of the Family Law Steering Group and member of the International Bar Association.
“In early 2010, in Re D (Children) [2010] EWCA Civ 50, Wall LJ, now President of the Family Division, stated that “there has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly reasonable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent and… relegates the harm done to children by a permanent breach of the relationship which the children have with the left-behind parent.” He went on: “this would, I have no doubt, in the right case constitute a compelling reason for an appeal to be heard.”’
http://www.iflg.uk.com/en/news/parliament-considers-reform-of-child-relocation-law
g) SANDRA DAVIS / Partner and Head of Family Law at Mishcon de Reya LLP, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor’s Child Abduction Panel.
“In Re D (Children) [2010] EWCA Civ 50 Sir Nicholas Wall said there was a perfectly respectable argument that Payne places too great an emphasis on the wishes and feelings of the relocating parent. “In doing so”, he said “it ignores or relegates the harm done to children [by the dislocation of their relationship with the parent left behind]“. This, according to Sir Nicholas, would, in the right case, constitute a compelling reason for the Supreme Court to review the law on relocation. A couple of weeks ago the President of the Family Division gave the lead judgment in another relocation case, Re W (Children) [2011] EWCA Civ 345, in which he appeared to row back from his earlier decision in Re D. In the postscript to his judgment, Sir Nicholas retracted his use of the word “ignores” in Re D, adding “unless and until Parliament imposes a different test to that set out in section 1(1) of the Children Act 1989 relocation cases will remain… governed by Payne v Payne.”
http://www.familylaw.co.uk/articles/SandraDavis14032011
h) DAVID HODSON / Deputy District Judge at the Principal Registry of the Family Division, High Court, London, a Fellow of the International Academy of Matrimonial Lawyers, author of A Practical Guide to International Family Law and chair of the Family Law Review Group of the Centre for Social Justice.
“England has probably the world’s most liberal and generous relocation law and which has attracted much criticism from English lobbying groups, family lawyers and some judges. Lord Justice Thorpe writing in June Family Law (at p 565) about the conference says that if England were to subscribe to the [Washington] Declaration it would represent a significant departure from English relocation law principles. Yet he also accepts that it is not difficult to argue for a change in the law given the changes in parenting patterns over the past 40 years or so. Perhaps with a new President [Sir Nicholas Wall] who has been previously critical of English relocation law [Re D (Children)], we can have a new direction very soon, giving greater weight to continuity and ongoing relationship with the so-called “left behind parent”. A change is very overdue.”
http://www.familylaw.co.uk/articles/david-hodson-on-international-family-law-0
i) HONG KONG FAMILY LAW ASSOCIATION
“Mr Justice Mostyn has said a review of Payne v Payne by the Supreme Court is urgently needed. It follows Lord Justice Wall, now President of the Family Division, adding his support last February in Re D (Children) [2010] EWCA Civ 50 for a review of Payne.”
http://www.hkfla.org.hk/
j) JORDAN’S PUBLISHING
“In his judgment [Re D (Children) [2010] EWCA Civ 50], Lord Justice Wall commented: “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.”
He went on to say: “This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a ‘compelling reason’ for an appeal to be heard.”
http://www.familylaw.co.uk/articles/perfectly-reasonable-argument-for-a-review-of-payne-says-lord-justice-wall
k) CATHERINE TAYLOR / Associate Solicitor / Healys LLP
“In February, Lord Justice Wall had called for a review of Payne v Payne [2001]. Lord Justice Wall had been hearing an application for permission to appeal a leave to remove order. He refused the father’s permission to appeal, but said in his judgement, “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left-behind parent [Re D (Children) [2010] EWCA Civ 50)].”
http://www.healys.com/site/srvprivate/family_law_solicitors/family_law_further_information/family_law_review_of_payne_and_poel.html
l) JMW SOLICITORS LLP
“In the first six months of 2010, various high ranking family law judges made calls for a review of [Payne v Payne]. LJ Wall said, “There has been considerable criticism of Payne v Payne in certain quarters and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done of children by a permanent breach of the relationship which children have with the left-behind parent [Re D (Children) [2010] EWCA Civ 50)].”
http://www.jmw.co.uk/services-for-you/family-law/articles/poel-and-payne/
m) WITHERS WORLDWIDE LLP
“…A recent Court of Appeal case Re D (2010) acknowledges that there has been considerable criticism of the leading case law which is widely seen as weighted in favour of relocating mothers. In his recent Judgment in Re D (Children), reported in February 2010, Wall LJ expressed his view that the Payne principles are ripe for review: “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the ‘left behind’ parent.” However, Lord Justice Wall did not feel that this particular case was the ‘right one’ to pursue this argument, and refused the father permission to appeal the decision that the mother be allowed to remove the children to Slovakia.
County Court and High Court Judges are duty bound to follow the Court of Appeal in Payne and as Lord Justice Wall acknowledged in Re D, the principles and guidelines laid down in that case can only be altered by legislation or overruled by a decision of the Supreme Court.”
http://www.withersworldwide.com/news-publications/729/moving-abroad-should-parents-be-on-an-equal-footing.aspx
n) KIM BEATSON / Partner & Head of Family Law at Anthony Gold LLP
“…there is now considerable momentum for a change of law in this area. In Re D (Children) [2010] EWCA Civ 50 Wall LJ (as he was) acknowledged the criticisms of Payne and stated at para 33: “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done of children by permanent breach of the relationship which children have with the left behind parent.”
http://www.anthonygold.co.uk/site/ang_articles/leave.html
o) AMANDEEP GILL / Jordan Publishing
“There has been considerable debate concerning leave to remove (LTR) cases following the comments made by Lord Justice Wall and Mr Justice Mostyn in Re D (Children) [2010] EWCA Civ 50 and Re AR (A Child: Relocation) [2010] EWHC 1346 (Fam) respectively.
http://www.familylaw.co.uk/articles/amandeep-gill-s-analysis-0
p) VO LAW LLP
“Despite certain dissenting commentary amongst lower Court judges, these questions have remained largely untouched until very recently. In Re D [2010] EWCA Civ 50, Lord Justice Wall stated that there is a perfectly reasonable argument for the proposition that Payne places too much emphasis on the wishes and feelings of the parent seeking to remove the child. In his judgment, Wall LJ commented, “there has been considerable criticism of Payne -v- Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent … there is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard”
http://www.volaw.com/default.asp?contentID=1101
q) BRENDAN ROCHE / Barrister, 7 Bedford Row
“In February 2010, in the case of Re D (Children) [2010] EWCA Civ 50, LJ Wall [noted] that there is a perfectly respectable argument that Payne v Payne “places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done to the children by a permanent breach of the relationship which the children have with the left-behind parent”. He had no doubt that, in the “right” case, this argument would constitute a compelling reason for an appeal to be heard.”
http://www.familylaw.co.uk/articles/flj0910BRENDANROCHE
r) DUNCAN LEWIS LLP
In Re D (Children) Lord Justice Wall has stated that there is a perfectly reasonable argument for the proposition that the Court of Appeal judgment in Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent. In his judgment in Re D (Children), Lord Justice Wall commented: ‘There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.’
Conclusion: The courts have engaged in a war between prioritisation between the Children Act 1989 and the Principles of Payne. The court has continuously observed the Childs welfare as paramount but there has been a vibrant and incoherent approach to these applications…”
http://www.duncanlewis.co.uk/childcare_news/Relocation_of_Children__(18_April_2011).html
—————————————————————————————————–
In summary, those who Sir Nicholas Wall accuses of placing “too much weight” and “undue prominence” on his critique of Payne v Payne, as expressed in Re D (Children) [2010] EWCA Civ 50 are:
a) Himself
b) The Ministry of Justice
c) A Professor of Family Law
d) The Judiciary of the High Court Family Division, and
e) Several eminently qualified and highly experienced Family Law practitioners
——————————————————————————————————-
It surely behoves Sir Nicholas Wall to proffer a comprehensive explanation for his apparent U-turn on the issue of Payne v Payne.
For example, does Sir Nicholas now consider that the child-welfare arguments presented to him by the litigant-in-person father in Re D have lost their original potency?
The arguments against Payne, as presented in Re D, can be found at:
http://www.equalparentingalliance.org/2011/04/leave-to-remove-an-open-letter-from-father-of-re-d.html
Alternatively, does Sir Nicholas now no longer consider the scientific evidence, as presented to him in Re D, to be as powerful and persuasive as it was in 2010?
The scientific evidence, presented in Re D, can be found within the Custody Minefield Report, entitled ‘Family Law: Relocation: The Case for Reform’ at:
http://www.relocationcampaign.co.uk/index.html
Of course, Sir Nicholas has absolutely no obligation to provide comprehensive answers! He remains completely unaccountable for his actions and views, both to Parliament and to the General Public. He is untouchable.
Furthermore, Sir Nicholas expressed his critique of Payne v Payne in a second completely un-publicised judgment.
In April 2010, 2 months after Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall gave judgment in Re D (A Child) [2010] EWCA Civ 593.
In this second judgment, Wall stated that:
“…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.
Quite remarkably, Wall acknowledges the fact that, when acting for mothers wishing to remove their children overseas, their lawyers and barristers “invariably” seek to claim in court that their clients will be devastated if they are not allowed to go!
It is perhaps little wonder why Sir Nicholas decided NOT to make this second Relocation judgment public! Indeed, it was only brought to my personal attention by Lord McNally’s researchers!
Sir Nicholas Wall continues to decline to make any comment on this second judgment, and upon the implications it obviously has for his stance on Payne v Payne.
If the President of the British Medical Association had stated that there was a “perfectly reasonable”, “compelling” and “powerful” argument that Food Additive X relegated the harm done to children, but then proceeded to do absolutely nothing about it for nearly two years, I have no doubt that such a criminal dereliction of duty would have resulted in lengthy imprisonment!
The President of the Family Division stated that there was a “compelling” and “powerful” argument that Payne v Payne relegated the harm done to children, and yet has done absolutely nothing about it for nearly 2 years! Did Sir Nicholas have no professional or ethical duty to act without haste, and in accordance with the Precautionary Principle, particularly when the matter relates to the well-being of our children?
And how can it be that, after having been presented, last year, with all of the arguments and all of the powerful scientific evidence for the serious risk of child harm in Relocation cases, the Children’s Commissioner can still refuse to involve herself in this matter? Dr Atkinson has now even refused to deal with any further correspondence from me concerning Relocation cases!
In the recent case of Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall abdicated responsibility for judge-made law and ‘passed the buck’ to Parliament. He distanced himself from his previous critique of Relocation law, attempted to suggest that people had mistakenly given his critique ‘undue prominence’, and reaffirmed Payne v Payne, stating that:
“…unless and until Parliament imposes a different test, relocation cases will remain… governed by Payne v Payne.”
…what is the position of Parliament???
A Summary of the Position of the Government:
Following my open letters, addressed to the Justice Minister, Mr Ken Clarke, and to the Prime Minister, Mr David Cameron, Lord McNally stepped forward to claim “ministerial responsibility” for Relocation law.
The position of the Government concerning Relocation law was clearly set out by Lord McNally in his letter to me (via my MP, Alistair Burt) dated 22 December 2010 (see attached):
“The Children Act 1989 already provides statutory protection to safeguard the welfare of children in cases of Relocation…the Act clearly requires the court to make the welfare of the child its paramount consideration…”
In other words, Lord McNally places responsibility for Relocation law firmly in the lap of the judiciary.
However, crucially, when assessing the ‘paramount’ welfare of the child, the judiciary is not in any way compelled by the Children Act to give full and proper weight to:
a) contemporary scientific research, and
b) the modern-day involvement of the so-called “non-primary carer” [the father] in the optimal development of the child.
The judiciary is, thus, at complete liberty to continue to assess the ‘paramount’ welfare of the child by adopting wholly un-scientific and plainly out-of-date suppositions and assumptions, originally pontificated upon by a judge in 1970.
In his letter, Lord McNally also affirmed that the Government is concerned and is interested in the issue of Relocation law, but that it wished to await recommendations for reform of Relocation law from the Family Justice Review before reaching any conclusions. To this end, Lord McNally confirmed that the FJR had been made aware of recent developments in Relocation law, and that it had been passed the latest Report from the Custody Minefield for its consideration. Lord McNally stated that it would be “premature” for the Government to reach any conclusions about legislative changes in Relocation law before it had seen the recommendations from the FJR. Quoting from his December letter:
“The Government has no current plans to change the substantive law on relocation. This is not due to any lack of concern or interest but because a Family Justice Review…has been launched… to make recommendations for reform.
The independent review panel has collected evidence from a wide range of sources and will have the opportunity to consider a wide range of issues, including Relocation cases. Policy officials working on the family justice review have been made aware of developments on Relocation including the latest Custody Minefield Report ‘Family Law: Relocation: The Case for Reform’. The review team is currently considering the evidence and will produce an interim report in Spring 2011, with a final report following in Autumn 2011.
I appreciate from his comments that Mr BD is disappointed with this timetable. I hope, however, that you will agree that it would be premature for the Government to reach any conclusions about possible legislative measures before it has had the opportunity to consider the overall findings and recommendations from the review.”
Despite Lord McNally’s assurances, the FJR’s Interim Report, published at the end of March 2011, failed to address the issue of Relocation in any manner whatsoever.
In my open letter of 5 April 2011, I asked Lord McNally how the Government proposed to address the issue of Relocation law, in light of the disappointing Interim response from the FJR.
Lord McNally responded (again via my MP, Alistair Burt) by saying that Sir David Norgrove of the Family Justice Review – who had been copied in to my letter of 5 April 2011 – would be replying in detail to my concerns.
I received a reply from Sir David Norgrove on 1 June 2011 (see attached) as follows:
“With regards to the specifics of Relocation law, I am not able to comment in any depth on the issues you raise…
The specific issue of Relocation, and particularly the legislation surrounding the issue, was not within our remit and we did not take evidence on this question. I am grateful to you for passing on a copy of The Custody Minefield’s Report into the issue, but it would be remiss of me to make any judgments based on a limited understanding of the complexities involved.”
In short, Sir David has stated quite categorically that the FJR panel will NOT be addressing the issue of Relocation, and nor will it be making any recommendations.
The ‘Relocation ball’ is now well and truly in the court of the Government!
On receipt of the letter from Sir David Norgrove, I immediately asked my MP, Alistair Burt, to request a full response from Lord McNally, as to the Government’s position on Relocation law. To date, no response has been received.
In the meantime, however, I was given a copy of a letter sent by Lord McNally to a concerned father, Mr K, on 23 May 2011 (see attached). In this letter, Lord McNally stated that:
“The Family Justice Review panel was not specifically asked to look at this issue [Relocation] in their terms of reference and therefore did not seek evidence on this”
I was naturally flabbergasted to read this new declaration by Lord McNally, because it flew in the face of his previous declaration, as detailed in his December letter to me.
How can Lord McNally have been so mistaken concerning the remit of the FJR? Surely he must have been in regular contact with Sir David Norgrove?
It is quite evident that the judiciary and the Government’s handling of the issue of Relocation is, at best, extremely shambolic, and, at worst, grossly negligent.
In either case, we must not accept it.
I therefore look forward to receiving an urgent and comprehensive response from Lord McNally to the issues raised in this letter, and full details of how the Government now proposes to address the issue of Relocation law, including a time-table for such action.
While we wait for the judiciary and the Government to act, hundreds of British children continue to be removed overseas each year, leaving behind their fathers, their extended families, their homes, their schools, their friends and their general way of life. These young and vulnerable children – who are already having to cope with the separation of their parents – are then expected to exhibit steely mental resilience in the face of the significant trauma of an overseas relocation.
Further unnecessary delay is completely unacceptable.
The Government has accepted the premise that children fare significantly better when they are permitted to remain in a meaningful relationship with BOTH of their parents. Yet it has consistently failed to address the most severe of all child/parent separations: that of overseas relocation.
While Mr Cameron sees fit to castigate ‘runaway fathers’ this Father’s Day – no doubt to the approval of the extremely powerful women’s lobby – his Government continues to ignore the issue of ‘runaway mothers’ in Relocation cases.
Cameron speaks of the vital influence played by his father in his own upbringing: lucky him! He would not have been so fortunate if his parents had separated when he was young and his mother had been given leave to emigrate!
Why does Mr Cameron stand idly by when hundreds of British children are routinely taken overseas, following the divorce of their parents, to be denied their Right to maintain a close, loving and meaningful relationship with their father?
What is good for children with married parents is surely also good for children with separated parents, is it not? I asked Mr Cameron this question a year ago. I have still not had an answer.
Yours most sincerely
Mr BD
Hello Mr BD,
I have read your entries on this site with varying emotions ranging from being impressed by your commitment, to outrage at the situation fathers find themselves in to an overwhelming sense of personal gloom.
I am the LIP father in a relocation case where my ex-wife wishes to return to her native Australia with our 9 year old daughter. She is represented by a privately funded barrister despite being unemployed, as she has a wealthy father. I have already run the gauntlet at three separate hearings to date and the final hearing is listed for two days in just over a weeks time.
I have spent considerable time and effort naively picking apart Payne and preparing for cross examination of witnesses, including the unbelievably offensive and biased social worker who has authored the Section 7 report.
But for what?
My ex-wife has constructed her application to reflect Payne and therefore any challenge to it is almost impossible given the approach of the judiciary, which you have eloquently outlined above.
On top of that I have been vilified and alienated by my ex-wife and Children’s Services who have gone out of their way to attack me as a man and a father, without foundation. I am not the person I am being presented as, yet it is now in writing in a court so people are looking at it and thinking maybe I am the bad man they say I am. The joke is that my ex-wife and I got on fine until I had the audacity to refuse consent to her emigration; which triggered a smear campaign that appears to be working for her.
After the Baby P case the Chair of the Review said that there was an inherent desire in Social Workers to simply believe what the mother told them. I have experienced that personally and trying to change the mindset of a social worker is nigh on impossible.
I genuinely believe that relocation will be damaging to my daughter but proving that is very difficult when the playing field is so heavily tipped in favour of the woman.
As a Police Officer with almost 24 years service and I am well used to being disappointed by the courts, but I get to go home, have a bit of a rant and I still get to carry on with my life, with my daughter. This though is something else altogether. The sense of impending loss is unspeakable and is compounded by bitterness and despair.
Over the past few days I have become completely disenchanted with the whole process and have considered giving up. I sought to galvanise myself and continued with my preparation. Whilst searching for some nuggets that may assist I came across this website, quite how I haven’t see it before is something of a mystery given the amount of research done.
Having read your article and assimilated it into my own case I have run head long into the biggest wall yet. I was aware of quite a bit of the detail but the argument you present is incredibly compelling and has affected my thought process considerably. It has become all too apparent that continuing to resist the application is futile at best. There is no hope of success.
My case is certainly not the one that will change Payne so why am I bothering? I know the obvious answer is that I am doing it for my daughter, but she wants to relocate and has been so well alienated by her mother that she now lies too. She might be bright and intelligent, but she is only 9, does she really understand the life long ramifications of her choices that the court are duty bound to take into account?
I have always thought that I should fight to the bitter end despite knowing what the most likely outcome will be. How else could I could reconcile my loss other than to know I had done all I could?
But I think the time has come to walk away and cross my fingers that my little girl will be ok, despite her mother. I say ok, as that is probably the best that I can hope for when she will be on the other side of the world with an unstable narcissist.
I wish I had your resolve and ability. I thought I did, but it has deserted me sufficiently that I now have no option but to capitulate to an absurd and nefarious process.
On behalf of fathers like me who do not have the emotional resilience or fortitude to do what you have, a heartfelt thank you. I sincerely hope that your efforts inform the changes that our children and families deserve.
Kind regards.
MDJ
Mr’s BD & MDJ;
Hello. I am a single father (with 50/50 joint legal custody) in the USA who is reading up on other men’s experiences with international relocation cases. If possible, I would like to talk with either or both of you via skype. Please let me know if this would be possible, and perhaps we can exchange contact via the author of this site privately. Thanks.
Respectsfully,
DHS
Open letter from Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)
25 July 2011
Psychological, developmental and educational harm unnecessarily inflicted upon hundreds of British children in ‘Leave to Remove’ Relocation cases, between January 2010 and July 2011, as a direct consequence of the continued adherence to the guidance and ideology of Payne v Payne.
Dear Lords, Ladies and Gentlemen
I address this open letter to each of the following recipients.
I have also attached a letter from the Ministry of Justice, dated 12 July 2011, as well as an article by Timothy Scott QC, dated 10 July 2011.
For reference, I have attached previous open letters dated 20 December 2009, 14 February 2010, 14 March 2010, 18 November 2010, 5 April 2011 and 19 June 2011.
Rt Hon Kenneth Clarke / Secretary of State for Justice
Rt Hon Lord McNally / Minister of State / Ministry of Justice
Rt Hon David Cameron / Prime Minister
Rt Hon Alistair Burt MP
Sir Nicholas Mostyn / Justice of the High Court / Family Division
Mr Justice Coleridge / Justice of the High Court / Family Division
Sir Nicholas Wall / President of the Family Division / Royal Courts of Justice
Lord Justice Thorpe / Head of International Family Justice / Royal Courts of Justice
Lady Justice Black / Royal Courts of Justice
Rt Hon Baroness Butler-Sloss GBE / House of Lords
Lord Phillips / President of The Supreme Court
Lady Hale / Justice of The Supreme Court
Sir David Norgrove / Family Justice Review / Ministry of Justice
Mr Ken Sanderson / CEO, Families Need Fathers
Mr Michael Robinson / The Custody Minefield
Dr Maggie Atkinson / Children’s Commissioner for England
Mr Clive Coleman / Legal Affairs Correspondent / BBC
Mr Christopher Booker / The Telegraph
Ms Rosemary Bennett / The Times
Mr Luke Salkeld / Daily Mail
In January 2010, Wall LJ (now President of the Family Division) heard the case of Re D (Children) [2010] EWCA Civ 50. He subsequently commented that the litigant-in-person father had “launched a root and branch attack on Payne v Payne”. On another subsequent occasion, Wall P said that “Re D was plainly not the case upon which to base a re-appraisal of Payne v Payne”. However, if matters were indeed so “plain”, one wonders why Wall took the very unusual step of reserving his judgment for three weeks!
In a subsequent un-reported judgment in October 2010 – [2010] EWCA Civ 1267 – Lady Justice Black made reference to Re D as follows:
“I have the judgment from that hearing, which has been reported as Re D (Children) [2010] EWCA Civ 50. The father sought to challenge the circuit judge’s approach to the case… because Judge Corbett had applied Payne v Payne, which the father argues should no longer be treated as a valid approach in cases of this type. Wall LJ gave extremely careful consideration to the case. He reserved judgment… so that he could look more at the papers and think about the issues that are involved. This is actually, although the father may not realise it, a very rare course on an application of this type. It has to be acknowledged that I am not in any way acting as a court of appeal against what Wall LJ determined on that occasion…
The father had advanced an argument that the “central tenet” [being the disproportionate weight given to the ‘distress argument’ of the ‘primary carer’, even when ‘shared parenting arrangements’ were in place] of Payne v Payne is defunct. The judge, Judge Corbett, set that out, but concluded that it was not open to her to differ from Payne v Payne. That was entirely correct as far as her role in these proceedings was concerned.
Wall could, however, have given permission to the father to appeal Judge Corbett’s order to the Court of Appeal with a view to arguments being considered about Payne v Payne with the possibility of the matter going further to the Supreme Court.
It was the view of Wall LJ that if the matter were entertained by the Supreme Court… any re-trial ordered on different principles [for example, principles resembling the ones in Re Y???] might well lead to the same result as Judge Corbett’s decision.
Had Wall LJ thought that an appeal carried a real possibility in this case of leading to a different result for these particular children and a result, which would, taking the whole picture, have been better for their interests, then he would have given permission for the appeal. He clearly did not take that view.
The father’s proposed grounds for the application that he is making to the European Court… follow very much the form of the document that he has included in the bundle for the purposes of this hearing… I understand that he has now launched that application. The material supplied in that [ECHR application] and indeed all of the material that the father has supplied in advance of today and today is extremely detailed, setting out the entirety of the case, and is very articulate…
I think it is fair to say that the main argument… is that Payne is wrongly decided, with the consequence that the trial judge applied the wrong principles and arrived at a decision which would be harmful to the children. He refers particularly to the evidence [15 scientific research papers] adduced before the trial judge and subsequently [before Wall] about the harm the children may suffer where they are not being brought up in close proximity to both of their parents.”
———–
Let us not forget the conclusions reached by Wall LJ in Re D in February 2010, after he had taken the “very rare course” of reserving judgment and after he had spent three weeks ‘carefully considering’ the father’s “root and branch attack on Payne” as well as reading the 15 scientific research papers demonstrating, beyond all reasonable doubt, the significant benefit to the children of maintaining the existing ‘shared parenting arrangement’. Wall LJ concluded:
“…there is a perfectly respectable argument for the proposition that [Payne v Payne] places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent… As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a ‘compelling reason’ for an appeal to be heard.”
Two important facts stood out in Re D:
Firstly, there existed a ‘shared care arrangement’ – full alternate weekends, mid-week over-night and half of all holidays – which both the Cafcass Officer and the trial judge, HHJ Corbett, found to be of immense benefit to the children
Secondly, the mother relied predominantly upon the so-called ‘distress argument’, to which, of course, the principles of Payne gave overriding weight.
These two facts seem to have escaped the attention of Wall LJ.
Instead, Wall sought to focus on the mistaken belief that the father would relocate to Slovakia. Wall was aware that the father had indeed made a proposal to relocate, but only upon the basis of him becoming the primary carer and being financially supported by the mother in Slovakia. Wall was aware that this proposal had been overwhelmingly rejected by the mother, the Cafcass Officer and by the trial judge, HHJ Corbett. Nevertheless, this ‘proposal’ was still used by Wall LJ and HHJ Corbett to bolster the decision to grant ‘leave to remove’. Furthermore, Wall gave undue credence to the mother’s unproven allegation that the father had informed the children of their inevitable removal.
In any event, it is hardly surprising that Wall LJ refused to grant permission to appeal to the father in Re D. He was firmly wedded to the specific principles in Payne v Payne, and it seems highly likely that he would have refused permission to appeal even if there had been no hint that the father might himself relocate. At the time, it was estimated that 90% of ‘leave to remove’ applications were granted as a result of the application of the principles in Payne, and no appeal against a ‘leave to remove’ order had ever been successful.
Indeed, as late as March 2011, Wall P declared, in Re W (Children) [2011] EWCA Civ 345, that the principles in Payne v Payne must be adhered to in ALL relocation cases, stating that “…unless and until Parliament imposes a different test, relocation cases will remain… governed by Payne v Payne.”
Despite Re D having been very widely cited in numerous legal quarters, for example, by Professor Freeman and Sir Nicholas Mostyn (see my letter dated 19 June 2011 for a comprehensive list), and despite Wall, himself, having publicly cited Re D on at least two occasions, he nevertheless attempted to claim that “too much weight” and “undue prominence” had been accorded to it.
In March 2011, Wall P asserted that:
a) the principles in Payne must be adhered to in all relocation cases, and
b) his carefully considered comments in Re D were not actually intended to criticise Payne
However, in contrast to the view of Wall P, his colleagues at the Court of Appeal now accept, that the Payne principles are entirely inappropriate where shared care arrangements are in place [as they were in Re D, for example].
Why? Presumably because they now accept that the genuine paramount interests of children are best served by their continuing to have a ‘meaningful’ shared care arrangement with both their parents, irrespective of the distress argument of the mother. Precisely the argument made in Re D!
What led them to reach this conclusion? Presumably they finally accepted the veracity of the plethora of scientific evidence which plainly demonstrates that children fare significantly better, on a whole range of indices, when they are permitted to remain in a close, meaningful and caring relationship with both parents. Precisely the scientific evidence presented in Re D!
In January 2010, Wall LJ had been presented with powerful arguments against the principles of Payne, as well as a plethora of scientific evidence in favour of shared care arrangements. He had been made fully aware of the probable harm being inflicted upon children as a direct consequence of the continued adherence to the guidance and ideology of Payne v Payne (specifically its unsubstantiated elevation of the ‘distress argument’). Wall LJ had taken the very unusual step of publicising Re D (a failed ‘permission to appeal’ judgment) in order to broadcast his ‘carefully considered’ concerns regarding the guidance in Payne. The legal community listened. Re D was cited from Hong Kong to the USA. Disappointingly, the President of the Family Division failed to act on his own concerns. He had a moral duty to act without a day’s delay in order to serve the interests of the hundreds of children who continued to be subjected to the principles in Payne. He might now restore some of his reputation if he were to proffer an explanation for his inaction over the past year and a half.
More importantly, however, officials at the Ministry of Justice, as well as Prime Minister Cameron, had also been made aware of the potential harm being inflicted upon hundreds of children by the continued application of the principles in Payne (see attached my numerous open letters, dating back to 20 December 2009).
In March 2010, Mr Shaw at the Ministry of Justice replied to the concerns raised in my letters of 20 December 2009 and 14 February 2010, as follows:
“I confirm that the Ministry of Justice are carrying out a Review of the Family Justice System. The Review will aim to ensure that the Family Justice System supports good quality contact with both parents, as it is this which contributes to better outcomes.
Where precedent is cited, it is for the Courts to decide whether that is relevant. In your letter you mentioned Payne v Payne which is the leading judgment in Relocation cases. For Payne v Payne to be challenged and potentially overturned this would have to go to the Supreme Court in a case where there was genuine reason for an appeal to challenge the precedent set in Payne v Payne on the basis that the principles were mis-stated. With that in mind, you may be interested to learn that Nicholas Wall LJ in his judgment in Re D (Children) [2010] EWCA Civ 50 on 9 February 2010 acknowledged that there is a respectable argument that the Court of Appeal judgment in Payne places too great an emphasis on the wishes and feelings of the relocating parent (paragraph 33):
‘There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done to children by a permanent breach of the relationship which children have with the left-behind parent.’
LJ Wall went on to say (paragraph 34):
‘This is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.’
Lastly, you mention in your letter about various scientific research papers… Whether any research influences future court decisions is a matter for the judiciary. The Lord Chief Justice has responsibility for judicial training. His responsibility is exercised through the Judicial Studies Board, which is an independent body chaired by Lord Justice Maurice Kay.”
Setting to one side the ridiculousness of Mr Shaw referring me to my own case, he summarised the position of the Government as follows:
a) It fully recognised and accepted the veracity of the extensive scientific evidence (some of which it had itself commissioned) that “good quality contact with both parents… contributes to better outcomes.”
b) The principles in Payne could only be altered in the Supreme Court.
c) It was the responsibility of the Lord Chief Justice to consider the scientific research and evidence.
d) The Family Justice Review would be addressing the issue of Relocation law
The position of the Government – as indicated at d) – was later re-iterated by Lord McNally in his letter to me of December 2010, as follows:
“The Government has no current plans to change the substantive law on relocation. This is not due to any lack of concern or interest but because a Family Justice Review…has been launched… to make recommendations for reform.
The independent review panel has collected evidence from a wide range of sources and will have the opportunity to consider a wide range of issues, including Relocation cases. Policy officials working on the family justice review have been made aware of developments on Relocation including the latest Custody Minefield Report ‘Family Law: Relocation: The Case for Reform’. The review team is currently considering the evidence and will produce an interim report in Spring 2011, with a final report following in Autumn 2011.
I appreciate from his comments that Mr BD is disappointed with this timetable. I hope, however, that you will agree that it would be premature for the Government to reach any conclusions about possible legislative measures before it has had the opportunity to consider the overall findings and recommendations from the review.”
Despite Lord McNally’s authoritative assurances, the FJR’s Interim Report, published at the end of March 2011, failed to address the issue of Relocation in any manner whatsoever.
In my open letter of 5 April 2011, I asked Lord McNally how the Government proposed to address the issue of Relocation law, in light of the disappointing Interim response from the FJR.
Lord McNally responded by saying that Sir David Norgrove of the Family Justice Review would be addressing my concerns. Sir David Norgrove eventually wrote to me on 1 June 2011, as follows:
“With regards to the specifics of Relocation law, I am not able to comment in any depth on the issues you raise… The specific issue of Relocation, and particularly the legislation surrounding the issue, was not within our remit and we did not take evidence on this question. …it would be remiss of me to make any judgments based on a limited understanding of the complexities involved.”
Norgrove completely contradicted what had been official Government policy since (at least) March 2010.
In my open letter of 19 June 2011, I requested a full explanation from Lord McNally.
On 19 July 2011, I received a reply from Jonathan Djanogly MP, dated 12 July 2011, which I have attached for your perusal.
I find Djanogly’s letter wholly unconvincing and extremely unsatisfactory. He refuses to address the general issues of relocation law and the general application of the principles in Payne, suggesting that to do so would necessitate him having to delve into individual cases! He refuses to comment on the scientific evidence and research in favour of shared parenting arrangements; evidence which had gone ignored by the judiciary for a year and a half. He quotes Re AR, but utterly fails to understand that that judgment is noted for its unbridled attack on the continued adherence to the guidance and ideology of Payne, and that it recommended an urgent review of relocation law! Djanogly suggests that it was perfectly acceptable for his colleague Lord McNally not to be aware of the scope of the remit of the FJR, despite the obvious fact that it was the Government which had set the scope of the remit in the first place!
It is very plain indeed that the position of the Government concerning the welfare of children in Relocation cases has been grossly negligent.
The Ministry of Justice had been completely mistaken with regards to the remit of the FJR from (at least) March 2010. It claimed that it was concerned with relocation law and with the possible need for legislative change, but decided to defer reaching any conclusions on the completely mistaken assumption that the matter would be addressed by the FJR. As a direct consequence, it failed to serve the paramount interests of the hundreds of children whose relocation has been assessed, between January 2010 and the present time, using the now discredited principles in Payne; principles which placed “too great an emphasis on the wishes and feelings of the relocating parent and relegated the harm done to children”.
It is simply not enough for the Ministry of Justice now to say that, due to the decision of the Court of Appeal in Re K in July 2011, the ‘problem’ of the guidance in Payne no longer exists. The parents and children who have undoubtedly suffered due to the continued implementation of the Payne principles since January 2010 deserve full answers to the following questions:
a) Mr Shaw stated, in March 2010, that it was for the Lord Chief Justice to consider the plethora of scientific research demonstrating the likely harm being inflicted upon children as a consequence of the guidance in Payne. 15 scientific reports were presented to Wall in February 2010. Was this scientific research passed to the Lord Chief Justice? Whose responsibility was it to do so? Wall LJ’s? Mr Shaw’s? Did the Lord Chief Justice act on this research? If not, why not?
b) Norgrove stated that: “the specific issue of Relocation, and particularly the legislation surrounding the issue, was not within our remit and we did not take evidence on this question”. Why did the Ministry of Justice not understand the scope of the remit which it had, itself, set for the FJR?
c) Whose responsibility was it at the Ministry of Justice to fully understand the scope of the remit of the FJR?
d) Whose responsibility was it at the Ministry of Justice to liaise with the FJR panel regarding relocation law, throughout 2010 and early 2011?
e) Lord McNally stated, in December 2010, that: “Policy officials working on the family justice review have been made aware of developments on Relocation including the latest Custody Minefield Report ‘Family Law: Relocation: The Case for Reform’. The review team is currently considering the evidence and will produce an interim report in Spring 2011, with a final report following in Autumn 2011.” Who were the ‘policy officials’ at the FJR to whom Lord McNally referred? What was the response of these ‘policy officials’ to their having ‘been made aware of developments on Relocation’ by the Ministry of Justice, and to their having been passed the Custody Minefield Relocation Report by the Ministry of Justice? Did they, for example, immediately advise the Ministry of Justice that Relocation law did not fall within the scope of their remit? Did they advise the Ministry of Justice that they were “not taking evidence” on matters of relocation? Or did they remain silent, thereby giving an impression to the Ministry of Justice that they would indeed be considering relocation law?
f) Exactly when did Norgrove (or any of the FJR officials) advise the Ministry of Justice that relocation law did not fall within the scope of the remit from the Ministry of Justice, and that they would not, therefore, be addressing it?
g) Exactly when did Lord McNally become aware that the assurances he had given in December 2010, concerning relocation law, had effectively been negated by Norgrove? We know that Lord McNally had written to a Mr K in May 2011 advising him that the FJR would not be addressing relocation law. According to protocol, Ministers provide written replies after 30 days. Can we assume that Lord McNally had become aware of the situation sometime during April 2011?
h) When Lord McNally did eventually become aware of the situation, what was his immediate response? He had stated in December 2010 that he was concerned about relocation law, but that he wished to await specific recommendations concerning relocation law from the FJR before reaching “any conclusions about possible legislative measures”. At the point when Lord McNally realised that no recommendations would be forthcoming from the FJR, did he immediately begin to deliberate and/or arrive at “any conclusions about possible legislative measures”? Is there an official record of any such deliberations conducted at the Ministry of Justice?
i) Did Lord McNally do nothing at all? Did he not have any concern for the welfare of the dozens of children whose future continued, day by day, to be determined by the guidance in Payne? Surely something was done! What action did he take?
j) Lord McNally would have been very aware of the firm position of the President of the Family Division who, in March 2011, had decreed that the Payne principles must be adhered to. Did Lord McNally, or any of his officials, have any direct communication with the senior judiciary at the Court of Appeal concerning Relocation law?
k) Did Lord McNally advise the senior judiciary to come up with a rapid and suitable ‘solution’ to the rather embarrassing dilemma with which he was now faced? Did such a solution also need to minimise any potential embarrassment to be faced by the President?
l) Did any such interventions by the Ministry of Justice lead directly to the decision in Re K, a decision which, in effect, did away with the rigid adherence to the principles in Payne, without actually doing away with Payne?
m) In March 2011, Wall, the President of the Family Division, stated quite categorically that the Payne principles must be adhered to in all relocation cases (regardless of any shared care arrangement). In July 2011, the Payne principles were set aside for cases in which both parents shared the care of their children (the majority of relocation cases). The principles in Poel/Payne had stood for 41 years. Are we to believe that the arrival of Re K in July 2011 was a pure coincidence, and that it was not brought about as a result of direct pressure from the Ministry of Justice?
n) In the judgment of Re K, LJ Black stated that Re D should not have been cited by counsel for the father. Black LJ was aware that Sir Nicholas Mostyn had cited Re D in Re AR in June 2010. Does Black LJ believe that Mostyn J was wrong to have cited Re D?
o) In Re D, Wall LJ had determined that there was a “compelling” case that Payne “ignores or relegates the harm done to children”. He later retracted the word ‘ignores’ (quite correctly, in my view) but not the word ‘relegates’. Did Black LJ consider that the reserved judgment of the President of the Family Division in Re D carried no weight or ‘authority’ whatsoever?
p) Black LJ was fully aware of the arguments and scientific evidence in Re D because she had read the file in October 2010 (see above). Was Black LJ in any way persuaded by the arguments and/or the scientific evidence therein? If so, why did she seek to diminish the importance of Re D?
q) What implications do recent events have concerning the “authority” of the President of the Family Division? He was conspicuously absent from the tribunal in Re K. Was this because he had judged, only two months previously, that the Payne principles must be adhered to in all relocation cases, and, furthermore, that the authority of Payne could not be challenged by the Court of Appeal?
—————
Whilst the decision in Re K is welcomed by many, sadly, it does not go far enough to protect the welfare of all children in relocation cases. Barristers have indicated that would-be relocation applicants will now be ‘well advised’ to attempt to minimise any ‘shared care arrangement’ to a sub-Re Y threshold (whatever that may be… estimates in Re K vary from 30% to 50%). I have attached an excellent evaluation of Re K by Timothy Scott QC of 29 Bedford Row. It would seem that Re K has opened the door for yet more expensive litigation in the family courts.
The ruling in Re K will help to protect the welfare of children whose parents have mutually agreed to a ‘shared care arrangement’. It will also help to protect the welfare of children whose ‘non-primary’ carer (father) is willing to spend £100,000 and battle like Lucullus in the family courts, year after year, in order to establish or re-establish a ‘shared care arrangement’, in defiance of the objections of a primary carer.
However, what about the children whose ‘non-primary’ carer has neither the financial means nor the mental resolve to battle in the courts in order to ‘win’ the ‘right’ to parent his own children? What of their Right to Family Life? What of their Right to maintain meaningful contact with their father, and to enjoy the verifiable benefits of a shared care arrangement?
Their welfare would be best served by the introduction in legislation of a presumption of shared parenting, following separation or divorce. Of course, the courts would have the power to restrict contact in cases where there is a verifiable risk of child harm (rather than merely the unsubstantiated and unproven allegations of a disgruntled ex-partner, intent on ‘using the children as weapons’).
In summary, between January 2010 and July 2011, hundreds of British children have been removed overseas – and away from perfectly loving and caring fathers with ‘shared care arrangements’ – as a direct consequence of the continued application of the principles and ideology of Payne v Payne.
During that time, the Government and the judiciary had been warned repeatedly of the inadequacy of the Payne principles (see my open letters, as well as the activities of Families Need Fathers, the Custody Minefield and the Relocation Campaign). These warnings went unheeded, both by the Ministry of Justice and by the judiciary.
Whilst publicly broadcasting his doubts over Relocation law in February 2010 – that the continued application of the guidance in Payne potentially relegated the harm done to children – the President of the Family Division proceeded to do absolutely nothing. Worse still, in March 2011, he performed a volte face by attempting to ‘down-play’ his previous criticism of Payne, simultaneously declaring that Payne must be adhered to in all relocation cases. Of course, as a judge, Wall P could, in theory, do anything he liked! He was, and is, completely unaccountable for his views and actions. Wall’s legacy will be his confusion and inaction on Payne.
The Ministry of Justice decided to pass responsibility for Relocation law over to the FJR, without having fully understood the remit which it, itself, had set for the FJR. At no point during the past year and a half did the Ministry of Justice question this official position. This was a serious error of judgment which has had disastrous consequences for hundreds of British parents and children. Unlike the judiciary, the Ministry of Justice is accountable to the public for its actions.
What does Lord McNally have to say – on behalf of the Government – to the hundreds of parents and children who have been negatively affected by the continued implementation of the Payne principles since January 2010?
I look forward to receiving from Lord McNally a comprehensive explanation of exactly what has gone on regarding the issue of Relocation law throughout the past year and a half and, in particular, over recent months.
Yours most sincerely
Mr BD
The Ministry of Justice declined to respond to my letter of July 2011.
My MP, Alastair Burt, declined to take my concerns forward; refused to press his colleagues at the MOJ for any answers; and advised me that he considered the matter to be closed.
The outcome of Re D (Children) [2010] EWCA Civ 50?
…despite the English Courts having found me to be an entirely responsible, caring and loving father, and despite having been granted ‘Shared Residence’ and extensive monthy contact, I have lost contact with my two children. My ex-wife has not permitted me to see them since January 2011. She blocked contact as soon as jurisdiction transferred to Slovakia. Attempting to ‘enforce’ my contact order in Slovakia via Brussels IIR has proved utterly hopeless.
I have lost contact with my two lovely children, despite being a good father and despite fighting tooth and nail to remain in contact.
The father in Payne v Payne also went on to lose all contact with his children.
This is the true legacy of Payne v Payne and of Sir Nicholas Wall’s blind faith in the principles of Payne.
The sooner that children’s rights and well-being are given paramountcy of place via a legal presumption of Shared Parenting, the better. It can’t come soon enough.
Mr BD
With the announcement in the Queen’s Speech recently, Mr Cameron and his Government finally appear to have got the message.
They plan to strengthen the legal right of a father to have meaningful access to his children, post separation/divorce.
They finally recognise that family law, as it stands, fails to serve children’s best interests in this extremely important respect.
Let us hope that any resulting modification to the Children Act (1989) will be robust enough to effectively safeguard children’s rights to be parented by both parents.
Shared Parenting does NOT, as many critics would have us believe, necessitate an exact split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20%. Another objection from the critics is that it will endanger children. Plainly, Shared Parenting will ONLY be available to parents who are NOT a proven risk to their children (mere allegation from disgruntled ex-partners should not be enough!).
My personal interest concerns Relocation law, which, despite some slight improvement last July (Re K), still far too easily acts to separate children from one of their parents (in practice, usually their father) by thousands of miles.
Plainly, a father cannot hope to enact any semblance of a Shared Parenting Plan when his children are residing on the other side of the planet!
I, and many others, have campaigned vigorously on the issue. A significant turning-point was achieved in the case of Re D (Children) [2010] EWCA Civ 50 in 2010. In this particular case, the President of the Family Division, Sir Nicholas Wall, publicly conceded there was a significant risk that Relocation law – in the form of Payne v Payne (2001) – relegated the harm done to children by significantly and irrevocably damaging the child’s meaningful relationship with the left-behind parent. The case was widely reported in legal circles.
Despite this concession, however, Sir Nicholas did nothing to rectify the problem, and, sadly, later resiled from his own criticism of Payne v Payne. We had expected more from the President. When there existed a significant risk of harm to hundreds of children, the Precautionary Principle appeared to mean nothing to him.
My current hope is that, with the expected introduction of a legal presumption of shared parenting, Payne v Payne will finally be overturned.
I have already made my views known to Mr Loughton, the Children’s Minister. Perhaps others will join in!
Best wishes
Bruno D’Itri
Professor Marilyn Freeman comes to the rescue of Nicholas Wall P and seeks to explain his U-turn on Payne v Payne as follows:
“The Court took the opportunity, in light of the recent
criticism of Payne, to clarify the status of Payne. Wall P
dealt decisively in Re W with the confusion created by
his comments in the earlier case of Re D…
In Re W, Wall LJ stated that too much weight may have
been given to some of his words in Re D”.
The blatant lack of objectiveness and scrutiny in the Professor’s analysis is embarrassing and unworthy of an academic. Prof Freeman is very aware that these were not merely ‘words spoken’ by Wall, but she seems quite content to perpetuate Wall’s misrepresentation. The truth appears to be of little concern to her.
She also avoids mentioning Wall’s critique of Payne in a second judgment (see post above).
Furthermore, the Professor describes The Custody Minefield as a ‘”fathers’ group”, knowing quite well that this organisation assists parents of both genders (she met the director of this organisation in person in November 2010).
finally, the Professor seems positively excited about the prospect of years of future employment conducting further research, and choses to relegate the importance of the existing and compelling research, referred to by Mostyn J in Re AR, listed in the Custody Minefield’s website, and presented in full to Nicholas Wall P in Re D (Children) [2010] EWCA Civ 50.
http://www.google.co.uk/url?sa=t&rct=j&q=payne+v+payne+&source=web&cd=10&cad=rja&ved=0CGsQFjAJ&url=http%3A%2F%2Fwww.londonmet.ac.uk%2Ffms%2FMRSite%2Facad%2Flgri%2FCFLP%2FJournals%2520Free%2FIssue%25205%2FIssue%25205%2520Marilyn%2520Freeman%2520Nicola%2520Taylor.pdf&ei=r-qzUJHFAqSY0QXeioGwAg&usg=AFQjCNFvBUCG5SMzPmxGf-t2T2joYdTOTQ
Bruno D’Itri