MK v. CK: Relocation application by a care sharer

MK v CK [2011] EWCA Civ 793, decided today, concerned a father's application for permission to appeal against a relocation order.

The Facts: The mother is of Canadian origin. The father is Polish although he spent childhood years in Canada. He moved to England in 1993 and the mother arrived here 10 years later. The parents married in London on 27th July 2004. They have two daughters, I born 16th November 2006 and A born on 8th January 2009.

In July 2010 divorce proceedings were filed and the mother moved out of the matrimonial home. A shared residence order was made on 23rd August 2010, under which the girls spend five nights with their father and nine nights with their mother in every fourteen day period.

The mother then decided she wished to return home to Canada, and applied for leave to relocate. Her application was granted on 3rd February 2011.

The father appealed, essentially on three grounds:

1. The judge rejected the recommendation of the CAFCASS officer without proper analysis and explanation.

2. She directed herself by reference to the guidance offered by Dame Elizabeth Butler-Sloss P. at paragraph 85 of Payne v Payne (guidance apt for applications by primary carers) rather than by reference to the decision of Hedley J in Re Y [2004] 2 FLR 330 (the only authority then available directly considering a relocation application by a care sharer).

3. In explaining her conclusion she referred only to the case that the mother presented. Even when that deficit was raised by counsel for the father, she had not remedied the defect.

Held: In his leading judgment Lord Justice Thorpe found that the father succeeded on all three grounds, and that any one of them would be sufficient to upset the judgment below (paragraph 30). On point 1: "given the clarity of the recommendation, there can be no denying the judge's obligation to explain why she rejected it" (paragraph 32). On point 2: "Given the extent to which the father was providing daily care, the judge should have considered and applied the dicta of Hedley J in Re Y rather than those of the President in Payne" (paragraph 35). On point 3: "Her conclusion is not the result of a balancing of pros and cons. She lists only the pros upon which she pronounces her conclusion. That is, in my judgment, a fatal deficit" (paragraph 37).

Having made his decision clear, Lord Justice Thorpe then went on to set out the law. He stated (at paragraph 39) that: "the only principle to be extracted from Payne v. Payne is the paramountcy principle". All the rest was merely guidance as to factors to be weighed in search of the welfare paramountcy, and he was "in no doubt at all that the guidance in Payne is posited on the premise that the applicant is the primary carer" (paragraph 41).

On the other hand, Re Y clearly dealt with a shared care situation, and in that case Hedley J had stated that in such a situation the Payne approach should not be used, but rather the case should be decided by applying the statutory checklist in section 1(3) of the Children Act (see paragraphs 56 and 57).

Accordingly, permission to appeal was granted and the appeal was allowed. Lord Justice Thorpe urged the parties to consider mediation, failing which there would have to be a retrial.

Lord Justice Moore-Bick and Lady Justice Black both gave lengthy consenting judgments, although Lady Justice Black did not agree with the reasoning of Lord Justice Thorpe on point 2 above, stating that she "would not put Payne so completely to one side" (paragraph 96). She stated (at paragraph 144) that Payne: "identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case".