|Lord Justice Munby|
The case concerned a boy, P, who was born in November 2004, to Spanish parents. The family moved to this country in 2009, when the father was offered a posting here by his employer, and intended to stay here until at least 2013. However, the relationship broke down and the mother returned to Spain in August 2011, leaving P in this country with the father. It was common ground that prior to August 2011 the mother was P's primary carer but that since then the primary carer has been the father.
The mother applied for the return of P to Spain in accordance with the provisions of the Hague Convention. However, her application was dismissed after the court held that P was at the material date habitually resident not in Spain but in this country.
The matter then proceeded on the basis of cross-applications for residence, with the mother also applying for leave to remove P from the jurisdiction and take him back to live with her in Spain. By the time the matter reached the final hearing before Judge Marston in the Portsmouth County Court on 25 July 2012, both parents were proposing a shared residence order.
Judge Marston made a shared residence order in favour of both parents but ordered that the mother have permission permanently to remove P from the jurisdiction. The father appealed. His case was as follows:
"The father's most important complaint is that Judge Marston erred in law. He submits that this was not a Payne v Payne case, as the judge seems to have thought, because the applicant – the mother – was not the primary carer; he was. Nor was it a K v K case, because there was no shared care arrangement. Judge Marston, he says, approached the case with a presumption in favour of the mother. He should, on the contrary, have recognised the father's claims as the primary carer, given due respect to the father's wishes and plans, in particular his reasonable wish to remain living in this country, and not imposed unreasonable constraints on his choice of residence. He did not. In short, says the father, Judge Marston reversed the guidelines. Thus, it was the father, who was not seeking to relocate, who was being pressed for clarity about his future plans. Moreover, he says, Judge Marston failed to acknowledge the importance of maintaining the child's status quo. A proper regard to these points ought, says the father, to have tipped the balance in his favour."Giving the leading judgment in the Court of Appeal, Lord Justice Munby held (at paragraph 49) that there was no error of law:
"Although this was not a case where the application was being made by the primary carer, Judge Marston was ... entitled to have regard to Thorpe LJ's "discipline" as set out in Payne at paragraph . He correctly appreciated that the case had to be decided by reference to P's best interests. And, at the end of the day, that is precisely what Judge Marston did."He continued:
"50. He carefully took into account P's current circumstances in this country, the quality of his father's care of him and the father's own plans, wishes and feelings. There is nothing which begins to suggest that he started off with any presumption in favour of the mother's claim. And if the complaint is that he did not recognise the presumptive weight of the father's claim, the short answer, as explained by Black LJ in K v K, is that he would have erred in law had he done so.
51. A reading of his judgment demonstrates that Judge Marston took into account and gave appropriate weight to each of the factors to which the father has drawn attention. He acknowledged that the father was the primary carer and recognised the importance the father was attaching to the argument based upon the status quo. He gave appropriate weight to both points, whilst correctly appreciating that neither could be decisive."He concluded in the following paragraph:
"In my judgment there is no sustainable basis for any complaint that Judge Marston either took into account irrelevant factors or failed to take into account any relevant factors. Nor, in my judgment, is there any sustainable basis for a complaint that Judge Marston erred either in the weight he chose to attach to the various factors he had to take into account or in his evaluative decision as to where the ultimate balance fell. That being so there is no proper basis upon which this court can intervene."Accordingly, he dismissed the appeal. Lords Justices Toulson and Pill gave concurring judgments.
In a postscript to his judgment Lord Justice Munby made two further points:
Firstly, he emphasised and endorsed the "central core" of what Lady Justice Black said in K v K, at paragraph 145:
"I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application."Secondly, he said (at paragraphs 60 and 61) that there was another lesson to be learned from this case:
"Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick LJ said in K v K, "the circumstances in which these difficult decisions have to be made vary infinitely." This is not, I emphasise, a call for an elaboration of the taxonomy. Quite the contrary. The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of relocation case. Any move in that direction is, in my judgment, to be firmly resisted. But so too advocates and judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straightjacket. Asking whether a case is a "Payne type case", or a "K v K type case" or a "Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided.You have been warned!
The focus from beginning to end must be on the child's best interests. The child's welfare is paramount. Every case must be determined having regard to the 'welfare checklist', though of course also having regard, where relevant and helpful, to such guidance as may have been given by this court."