Groundbreaking Judgment in the Court of Appeal

In this groundbreaking case Deborah Eaton QC and Madeleine Reardon acted for a father who successfully overturned on appeal an order permitting his former wife to relocate to Canada with their two children aged 4 and 2 whose care was shared, albeit unequally, between their parents.

This is undoubtedly the most significant relocation case since Payne and Poel and the extent to which these cases, which have been so criticised, will survive is questionable (the three members of the Court had slightly different views on this.) Certainly in any case where the care of children is shared, it will be far more difficult than it has been hitherto for the relocating parent to assert that her own emotional needs are decisive or carry special weight.

The Court of Appeal has taken the opportunity to review the law on international relocation as it has developed since the cases of Poel [1971] WLR 1460 and Payne [2001] 1 FLR 1052. Thorpe LJ referred to the guidance in Payne which is posited on the premise that the applicant is the primary carer and is founded in the Court of Appeals judgment in Poel. Referring to the rationale in Poel, he said that of course that all now seems archaic given our shift from parental power to parental responsibility introduced by the Children Act 1989 and given the more recent emphasis on the value to children of shared parenting where the parental relationship and the circumstances are favourable. In a shared care case, the guidance in Payne should give way to an assessment of welfare as the courts paramount consideration.