RE F (A Child) [2012] EWCA Civ 1364
Munby LJ has considered the decisions of Thorpe LJ, Black LJ and More-Bick LJ.
He emphasises in particular
(a) do not get bogged down in debates about whether it is a primary carer or shared residence case.
(b) the only principle is welfare
(c) the Payne discipline can still be useful in ensuring that all relevant factors are taken into account but ultimately one is applying the welfare checklist and the Payne discipline can be incorporated within that where relevant
Past President of the Family Division, Sir Nicholas Wall’s varying positions on Payne v Payne generated confusion within legal circles:
ReplyDeletehttp://blog.taylorking.co.uk/category/children/leave-to-remove/
The comments section of the following link sheds some light on the Government's recent involvement in Relocation Law, leading to the ground-breaking decision of Re K.
http://www.mckenziefriend.com/2010/04/27/your-numbers-up-payne-v-payne-time-for-change/
Bruno D’Itri
I am very pleased that our Government is set to amend the Children Act in order to protect the Right of a child to benefit from a meaningful relationship with both its parents, post separation/divorce.
ReplyDeletehttp://www.guardian.co.uk/commentisfree/2013/feb/05/children-family-bill-panel-responds?fb=native
This was an original intention of the Children Act (1989), but has been relegated or misinterpreted by the judiciary (specifically by Lady Butler-Sloss).
I have campaigned vigorously over recent years for the acceptance of the principle that a child’s paramount interests are served by the Court giving due regard to maintaining its meaningful relationship with both its parents.
Sadly, to date, the judiciary has remained more focused upon the wishes and feelings of the so-called ‘primary carer’ (usually mum) and has relegated the importance of the involvement of the de-facto ‘secondary carer’ (usually dad).
There have been well-publicised cases in which the judiciary has recognised this shortcoming in the law, but has been unable or unwilling to act.
In the reserved judgment of Re D (Children) [2010] EWCA Civ 50, for example, the former President of the Family Division, Sir Nicholas Wall broadcast (and later reiterated in a Family Affairs interview) his carefully considered view that Relocation Law – in the form of Payne v Payne – ascribed too great a weight to the wishes of the primary carer and relegated the harm done to a child due to the loss of its meaningful relationship with the left-behind parent.
Regardless of his concerns, however, he proceeded to apply the very legal principles in Payne v Payne which he had criticised! Wall was either unable or unwilling to challenge a legal precedent which failed to serve the best interests of the children.
With the forthcoming amendment to the Children Act, the judiciary will now be FORCED to give due and proper weight to maintaining meaningful relationships between children and both their parents.
It is very hard to see how the principles of Payne v Payne can now survive. Plainly, a child which has been removed thousands of miles from its home country cannot easily benefit from maintaining a meaningful relationship with the left-behind parent!
I expect this beastly law to be consigned to the history books before too long. A law which effectively permits a mother to cut out – like a cancer – a father from the life of his child is utterly barbaric and has no place in 21st Century Britain.
Regards
Bruno D’Itri