Payne v Payne
In deciding whether to allow a parent to relocate abroad with a child, the welfare of the child is paramount, and the effect of a refusal on the parent who wishes to relocate is an important factor.
Facts
Mrs Payne, a New Zealander, had married an Englishman and lived with him in England, where they had a daughter. After they separated, the daughter lived with her mother. Mrs Payne wished to return to New Zealand with her daughter, where she had family support. The father opposed the move, because it would greatly reduce his contact with his daughter. The judge gave the mother permission to remove the child, and the father appealed.
Legal principle
The Court of Appeal dismissed the father's appeal. Thorpe LJ said that the welfare of the child is the paramount consideration, but that the court should consider whether the mother's application is genuine and realistic, the effect on the father of the loss of contact, and the effect on the mother of a refusal, which could be devastating, and in turn would affect the child. Thorpe LJ's guidance was applied for some years as if it created a presumption in favour of relocation, but this was corrected in K v K and Re F, which emphasised that the only test is the child's welfare.
Related cases on private law disputes about children and child abduction
- Re B (A Child) (Residence: Biological Parent) [2009] UKSC 5, [2009] 1 WLR 2496
- Re C (A Child) (Immunisation: Parental Rights) [2003] EWCA Civ 1148, [2003] 2 FLR 1095
- Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619
- Dawson v Wearmouth [1999] 2 AC 308
- Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144
- Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882
- Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305
- Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80
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