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

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

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)

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)

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.