Internal Relocation: Is Payne v Payne still applicable?

Melissa Vaughan is a member of Oriel Chambers Family Team.

Here Melissa Vaughan provides a brief recap on the law surrounding internal relocation.

If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at clerks@orielchambers.co.uk

1. In short, Payne v Payne is now simply guidance for the court. Below are relevant statutes and case law the court must consider when deciding whether a child should be permitted to relocate.

2. The welfare of the children is paramount (section 1 of the Children Act 1989) and the Court must take into account when determining the welfare of the children, the factors set out in the welfare checklist at section 1 (3) of the CA 1989.   The rights of the adults and children secured under the ECHR are engaged and the Court must apply the principles of proportionality and necessity to the welfare exercise, and in particular section 1 (2) of the CA 1989 the Court must not make any order unless it considers that to do so would be better for the child than to make no order at all.

3. Unlike in external relocation cases, there is no statutory limitation on a parents’ right to relocate with children within the jurisdiction.  The issue only arguably arises where a change to contact/ living arrangements, or to educational provision might arise.

4. Internal relocation was specifically considered by the Court of Appeal in Re C (Internal Relocation) [2015] EWCA Civ 1305 (although note as addressed below, this was a move from London to Cumbria).  After conducting a comprehensive analysis of cases involving relocation of a child within the jurisdiction and those where a parent seeks to relocate to another jurisdiction, Black LJ summarised as follows:

‘There is no doubt that it is the welfare principle in section 1 (1) of the [CA] which dictates the result in internal relocation cases, just as it is now acknowledged that it does in external relocation cases….I would not interpret the cases as imposing a supplementary requirement of exceptionality in internal relocation cases.’ [paragraph 51]

5. Further Bodey J summarised the principles to be applied as follows:

‘a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.

b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.

c) In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.’

6. Taking into account the Court of Appeal’s observation that there is no qualitative difference between the law as it applies to internal and external relocation cases, since Re C, Mostyn J has further summarised the law applicable to external relocation cases in the case of S & V (Children – Leave to remove) [2018] EWFC 26 as follows –

(a) The principle of the paramountcy of the children's best interests, as taxonomised by the checklist in section 1(3) of the 1989 Act, which is not to be glossed, augmented or steered by any presumption in favour of the putative relocator – see further re K (A Child) [2016] EWCA Civ 931, Re G;

(b) Lord Justice Thorpe's famous "discipline" in Payne v Payne [2001] 1 FLR 1052 is now relegated to no more than guidance, which can be drawn on, or not, as the individual case demands;

(c) If the applicant's case is not well thought out and is not supported by evidence it will likely fail;

(d) If the applicant's case, or the respondent's defence, is not advanced in good faith but rather is driven by an unworthy ulterior motive, then that case, or defence, will fail;

(e) The court must consider the impact on the mother if the application is refused as well as the impact on the father if it is granted (or visa versa);

(f) The court must undertake a "global" or "holistic" or "360 degree" exercise;

(g) The court's function in a relocation case is one of evaluation rather than a pure exercise of discretion (see Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884);

(h) The court will have to resolve disputed facts and there is a burden of proof on the party alleging the facts in issue, but once the facts are established there is no formal legal burden of proof on the applicant (see Payne v Payne at para 25 per Thorpe LJ: "I do not think that such concepts of presumption and burden of proof have any place in Children Act litigation where the judge exercises a function that is partly inquisitorial.");

(i) Common sense dictates that where one parent seeks that a well-functioning status quo should be changed he/she has to make the running in terms of the evidence and argument to show that change would be more in the children's interests than no change. Notwithstanding the partly inquisitorial function of the court the maxim affirmati non neganti incumbit probation (the proof rests on those who are affirmed and not on those who deny) should loosely apply to the case for change;

(j) There is no principle in Children Act litigation that a new spouse takes subject to the claims of the old one (see, for money cases, Vaughan v Vaughan [2010] EWCA Civ 349, [2011] Fam 46). However, if someone forms a relationship with a woman who has children from a prior relationship where the father of those children is enjoying a stable regime of contact, then the new partner must surely be taken to enter the relationship, with all its incumbrances, with his eyes wide open.  On the other hand, the father of those children must surely recognise the prospect of his former wife re-partnering and in that event a case for change being advanced. The weight to be attributed to these two general propositions will depend on the facts of the case in hand; and

(k) Arguments in relation to the devastation and impact of refusal of the relocating parent should be treated very circumspectly - Re AR (A child: Relocation) [2010] EWHC 1346 (Fam).

7. Each case is different and should you require assistance on a matter such as this please contact clerks@orielchambers.co.uk

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