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“it cannot be enough for a judge simply to declare that he
has considered the ‘paramount interests’ of a child. If so, a judge
would be quite at liberty to order that a child be flogged prior to
its being removed to Australia as long as he remembered to ‘tick the
box’ and declare in his judgment that he had carefully considered the
child’s ‘paramount interests’, in accordance with the Children Act.”

An open letter from the litigant-in-person father in Re D (Children)
[2010] EWCA Civ 50

In the “postscript” of Re W (Children) [2011] EWCA Civ 345, Sir
Nicholas Wall, President for the Division of the Family, made
reference to my case, Re D (Children) [2010] EWCA Civ 50, as follows:

128. I fear that too much weight may have been given to some words of
mine spoken in a judgment which I gave in an application to this court
for permission to appeal in a relocation case. Whilst I do not resile
from most of what I have said, I am of the clear view that undue
prominence has been accorded to Re D, in which I refused a litigant in
person permission to appeal against a relocation order, and in which I
went out of my way to explain in detail to him why, in my judgment,
his application had to be refused.. During the course of my judgment,
I said: – “There has been considerable criticism of Payne v Payne in
certain quarters, and there is a perfectly respectable argument for
the proposition that it places too great an emphasis on the wishes and
feelings of the relocating parent, and ignores or relegates the harm
done of children by a permanent breach of the relationship which
children have with the left behind parent.”

May I respectfully remind Sir Nicholas of paragraph 2 of his judgment in Re D:

2. I heard oral argument from the applicant in person (assisted by his
McKenzie friend) on 20 January 2010. The applicant read to me a
detailed submission which he had prepared, and produced a substantial
bundle of documents which, in the time available to me, I had not had
the opportunity to read. I therefore decided that the fairest way of
dealing with the application was to reserve judgment, both in order to
reflect carefully on the case and to give myself time to read all the
material which the applicant had provided. This I have now done.

Sir Nicholas eventually pronounced judgment in Re D on 9 February
2010. He gave himself three weeks in order to “reflect carefully” on
the arguments, and to read the extensive and detailed body of
scientific child-welfare evidence and research which I had exhibited
at my final hearing in September 2009 (most of which subsequently
appeared in The Custody Minefield’s Relocation Reports). Re D was not
an immediate, ‘ex tempore’ judgment. Plainly, these were not merely
“some words of mine spoken in a judgment”, as Sir Nicholas now puts
it. They were carefully considered words, and Sir Nicholas
specifically released Re D into the public domain in order that the
legal profession could take due note of his proclamations.

Sir Nicholas went on to give a public interview in August 2010, in
which the following question was posited:

“In light of a) your comments in Re D, b) the Washington Declaration
c) the new research from Dr Marilyn Freeman and Professor Parkinson
and now d) the comments of Mostyn J in Re AR, where are we now on
international child relocation? Is it still a question of finding a
rich or tenacious (or both) litigant to push the right case to the
Supreme Court before any effective review of Payne v Payne can take
place?”

Sir Nicholas answered as follows:

“As I said recently in Re D [2010] EWCA Civ 50 (which I am delighted
to see that you have all read) there is a perfectly respectable
argument for the proposition that
Payne v Payne places too great an emphasis on the wishes and feelings
of the relocating parent, and ignores or relegates the harm done to
children by a permanent breach of the relationship which children have
with the left behind parent. However, all relocation cases are (1)
very difficult; and (2) highly fact specific. Re D was plainly not the
case upon which to base a re-appraisal of Payne. Furthermore, as I
also made clear in Re D, we operate a doctrine of precedent and it
will be either for the government to change the law or for the Supreme
Court to reconsider the issue in a suitable case. I do not think that
a litigant would necessarily have to be either rich or tenacious to
get to the Supreme Court…”

In August 2010, therefore, Sir Nicholas was “delighted” with the
attention, weight and prominence being accorded to his pronouncements
in Re D.

However, a mere eight months later, he now says that “too much weight”
and “undue prominence” have been accorded.

What is his explanation for this obvious change in opinion? Is Sir
Nicholas attempting to down-play the significance of his criticism of
Payne v Payne in Re D and, if so, why?

Subsequent paragraphs in Re D read as follows:

34. As I say, this is a perfectly respectable argument, and would, I
have no doubt, in the right case constitute a “compelling reason” for
an appeal to be heard…

35. In my judgment, this case is not the right case for a challenge to
Payne v Payne. In the first place, on the facts, the respondent makes
a powerful case for relocation. Secondly, there is currently no
legislation requiring a different approach in place, with the
consequence that were this case to go the Supreme Court it is probable
that – were the Supreme Court to take the view that insufficient
consideration had been given to the harm likely to be suffered by the
children by relocation and alteration of their current way of life –
the Supreme Court would order a re-trial, rather than saying that the
judge, in the exercise of her discretion, was plainly wrong. In my
judgment, it is contrary to the interests of the children to impose a
fourth hearing on this family.

It is therefore very plain that – in February of last year, at least –
Sir Nicholas was firmly of the mind – and had “no doubt” – that there
was a “compelling reason” for a review of Payne to be heard by the
Supreme Court. The only obstacle appeared to be the need for him to
find what he referred to as the “right case”. The plain conclusion to
be drawn from Re D is that, if Wall had been presented with a suitable
case, he would indeed have given the necessary permission for it to
progress to the Supreme Court. The Court of Appeal is the only route
to the Supreme Court, as Sir Nicholas himself made very clear in Re D.
To date, no such permission has been given to any Relocation case.

Sir Nicholas has never given any indication as to what he would
consider to be a ‘suitable’ case, although it is fair to surmise that
the factor of delay is pivotal. Indeed, this was a major reason given
by Sir Nicholas for refusing to grant permission to appeal in Re D
(see Paragraph 35 above).

In addition, quoting Sir Nicholas in Re W:

11. … in cases dealing with the custody of children, the desirability
of putting an end to litigation, which applies to all classes of case,
is particularly strong because the longer legal proceedings last, the
more are the children, whose welfare is at stake, likely to be
disturbed by the uncertainty.

However, significant delay is, of course, an inevitable consequence
for any case to progress to the Supreme Court (to say nothing of the
associated Dickensian costs, which are beyond the means of all but the
wealthiest of litigants). On the ground of delay alone, therefore, it
seems highly improbable that the Court of Appeal would permit any
Relocation case to progress to that higher court. The deleterious
consequences for hundreds of children as a result of this ludicrous
situation ought to be obvious to everyone.

The afore-mentioned conclusion regarding Re D is re-iterated by Lord
McNally, (Minister of State at the Ministry of Justice) in his letter
to me (via my MP, Alistair Burt), dated 22 December 2010. I quote:

“The President of the Family Division has indeed signalled that if a
suitable… case were to be appealed to the Supreme Court this might
well result in a reappraisal of the principles set out in Payne v
Payne.”

In the same letter, Lord McNally refers to Sir Nicholas’s criticism of
Payne in a second eponymous Relocation case (not to be mistaken with
my own case) Re D (A Child) [2010] EWCA Civ 593 as follows:

“The President acknowledged that…Payne v Payne…places too great an
emphasis on the wishes and feelings of the relocating parent
(Paragraph 4):

4. “…there is a powerful body of opinion which takes the view that the
traditional English way of dealing with [Relocation cases, as set out
in Payne v Payne] pays too little attention to the damage caused to
the child by the loss of the relationship which the child has with the
left-behind parent and too much attention to the views of the
departing parent, who invariably tells the court that she (and it is
usually she) will be devastated if she is not allowed to go”.

In this second judgment, Sir Nicholas describes the case against Payne
as being “powerful”. Would Sir Nicholas now have us believe that “too
much weight” may also be erroneously accorded to this second judgment,
and is he fearful that “undue prominence” may also now be ascribed to
it?

Or is it, instead, the case that, contrary to his claim, Sir Nicholas
is indeed now seeking to “resile” from his carefully considered
criticism of Payne v Payne (as expressed by him in at least two of his
judgments in 2010)? And, if so, what are the reasons for such a
volte-face?

In his most recent judgment, Re W, Sir Nicholas supports the call from
the researcher, Prof Freeman, for yet more research (see paragraph 129
below). Remarkably, Sir Nicholas now appears to deny the very
existence of the extensive and irrefragable scientific evidence and
research, which had been presented to him in full in Re D. Evidence
which he had read over the course of three weeks; evidence which he
had described as being “compelling”; evidence which had led him to
make his public critique of Payne v Payne in two judgments; evidence
which now appears to be no longer of any importance to him.

Does Sir Nicholas really need to wait for yet more research, when the
existing research has been so “compelling” for over a year? How much
evidence does he need?

Interestingly, Sir Nicholas is very able and willing to make what are
essentially psychological and sociological determinations in the
complete absence of any scientific evidence or research. Where is the
scientific evidence, for example, to support his assertion in Re W
that a meaningful, wholesome and loving parent/child relationship can
be facilitated by means of Skype?

There appears to be a profound illogicality in Sir Nicholas’s
treatment of scientific evidence and research.

The beauty of Science is that if a theory is falsified by evidence it
is immediately cast out by the scientific community. The ugliness of
Law is that if a law is undermined, discredited and highly criticised
(even by the President himself), it nevertheless remains fully in
place, wreaking harm to hundreds of children.

In the same judgment, Re W, Sir Nicholas appears to abdicate
responsibility for his judge-made relocation law (Payne v Payne) and
‘passes the buck’ to Parliament. I quote:

129. “It further occurs to me that unless and until we have the
research identified by Professor Freeman, and unless and until
Parliament imposes a different test to that set out in section 1(1) of
the Children Act 1989 (paramountcy of welfare), relocation cases will
remain fact specific, the subject of discretionary decisions, and
governed by Payne v Payne.”

In contrast, however, the view of the Ministry of Justice concerning
Relocation law is clearly set out by Lord McNally in his letter to me
of December, as follows:

“The Children Act 1989 already provides statutory protection to
safeguard the welfare of children in cases of Relocation…the Act
clearly requires the court to make the welfare of the child its
paramount consideration…”

In other words, Lord McNally places responsibility for Relocation law
firmly in the lap of the judiciary. Lord McNally also stated that it
was for David Norgrove of the Family Justice Review to make
recommendations regarding Relocation law (and he kindly confirmed to
me that the latest Custody Minefield Report had been passed to the FJR
panel). However, as we are all aware, Mr Norgrove declined to make any
recommendations whatsoever concerning Relocation law in his recent
Interim Report.

So we have gone full circle. No one person in a position of power
appears able or willing to act. Each passes responsibility to another.
Meanwhile, hundreds of children continue to be removed from their
fathers, their extended families, their schools, their friends, their
cultural environment and their general way of life. Children are
expected to exhibit steely resilience in the face of such tremendous
upheaval. In contrast, adult mothers are not expected to have any such
resilience were their applications for LTR to be refused. These
expectations are scientifically, morally and socially groundless.

The gravamen of the case against Payne v Payne is actually very simple
to articulate. In determining the ‘paramount interests’ of the child,
should the judiciary base its judgments upon readily-available,
extensive, irrefragable, independent and corroborating contemporary
scientific evidence and research, or, instead, upon un-scientific and
plainly out-of-date 1970’s ‘common sense’ assumptions concerning the
emotional fragility of the ‘weaker sex’, and the un-importance of a
father in the development of a child? The colloquial term,
‘no-brainer’ springs immediately to mind!

Furthermore, it cannot be enough for a judge simply to declare that he
has considered the ‘paramount interests’ of a child. If so, a judge
would be quite at liberty to order that a child be flogged prior to
its being removed to Australia as long as he remembered to ‘tick the
box’ and declare in his judgment that he had carefully considered the
child’s ‘paramount interests’, in accordance with the Children Act.

When considering a child’s paramount interests – in other words, its
psychological, developmental and educational well-being – the
judiciary must be made to give full weight and consideration to the
plethora of contemporary psychological and sociological scientific
evidence and research.

To quote Sir Nicholas Mostyn of the High Court, Relocation law must
“bring into full account” the “emerging body of significant research
in various jurisdictions” (Re AR (A Child: Relocation) [2010] EWHC
1346). Can anyone reasonably argue against Sir Nicholas Mostyn’s
recommendation? That urgent recommendation was made in June 2010. It
appears to have fallen on deaf ears. Any further delay in a
reappraisal of Relocation law would be an abominable indictment, both
of our Government and particularly of our judiciary.

Below is a brief summary of the arguments against Payne v Payne.

The application of the principles, suppositions and ideology of Payne
v Payne, both by the judge of first instance and by the Court of
Appeal (it also being bound by its own precedent):

a) Affords too great a weight to the wishes and feelings of the
applicant parent, notwithstanding the sincerity and ‘genuineness’ of
his/her motives (mercy killers have sincere and genuine motives)

b) Affords too great a weight to the well-researched plans of the
relocating parent

c) Relegates the harm done to the child due to a permanent breach of
its ‘meaningful’ relationship with the left-behind parent

d) Fails to afford sufficient weight to the child’s wishes and feelings

e) Fails to afford appropriate credence or weight to abundant and
irrefragable scientific research and evidence demonstrating the
deleterious psychological, developmental and educational consequences
a child is likely to experience in the absence of a ‘meaningful’
relationship with both its parents

f) Fails to give appropriate credence or weight to the scientific
evidence demonstrating that a ‘meaningful’ and wholesome relationship
cannot be adequately maintained on the basis of infrequent contact in
motel rooms or via electronic media such as Skype

g) Affords too great a weight to the un-scientific and un-proven
supposition – pontificated upon in the case of Poel in 1970, but still
remaining the legal bedrock of relocation law – that a parent’s
disappointment and frustration at a refusal of his/her application
would impact upon him/her so as to cause the child significant medium
to long-term harm. There remains no evidence whatsoever for this
40-year-old supposition

h) Fails to consider that the happiness and well-being exhibited by a
child as a direct consequence of its remaining in a meaningful
relationship with both parents and in its familiar environment will,
in and of itself, likely generate considerable happiness and
contentment in the so-called ‘primary carer’ (happy child, happy
parent)

i) Fails to consider that, if a primary carer, initially wishing to
relocate, is then made fully aware of the scientific evidence which
plainly demonstrates the long-term benefits to their child from its
remaining in a meaningful relationship with both its parents, s/he
would either withdraw the application, or would be far less
disappointed or devastated by a refusal of the application, realising
as s/he would that remaining in the UK would be serving the child’s
best long-term interests (what good parent does not happily and
proactively make numerous sacrifices for the benefit of their child?)

j) Fails to acknowledge the benefit to a child of maintaining the
stability and familiarity of its social, cultural and educational
environment, particularly at a time when that child is faced with
having to deal with the trauma of the separation of its parents

k) Fails to take into proper account the major societal shifts in the
organisational dynamics of modern family life which have undoubtedly
occurred since 1970, in particular, the involvement and thus the
importance of a father in the psychological, sociological and
educational development of his children. In Payne, LJ Thorpe stated
that he had no evidence to support this assertion. That evidence now
exists

l) Fails to consider that the medium to long-term harm to a child as a
direct consequence of overseas removal is likely to be more
significant than any short-term harm resulting as a consequence of the
delay inherent in proceeding to the Supreme Court

m) Fails to consider that a child’s human rights and ‘paramount
interests’ cannot be best served by permitting a legally-untrained and
emotionally-involved litigant-in-person father to formulate and
present a legal case on its behalf. What adult (or judge!) would
accept being legally represented in court by a layperson?

n) Fails to appreciate that, in hearing Ancillary Relief matters
separately and at a later date, little or no detailed consideration is
given to the important issue of whether or not overseas contact orders
are affordable and achievable in practice

o) Places an unjustified emphasis upon the ‘facts’ of a case. This
fails to appreciate that:

i) The suppositions and ideology of Payne steer the judiciary towards
particular ‘facts’ and away from other ‘facts’. In other words, they
focus only on those ‘facts’ which seemed relevant when the case is
viewed through the distorting ‘lens’ of Payne
ii) It is usually only these particular ‘facts’ which appear with any
prominence in judgments
iii) The unwarranted weight and erroneous interpretation ascribed to
these particular ‘facts’ by Payne ultimately determines the judgment.

Relocation cases often contain numerous and detailed ‘facts’
pertaining specifically to the appearance and demeanour of the
applicant parent in the witness stand. The judge may well perceive
much genuine distress and anguish in the applicant (which would be
quite natural, given the tremendously stressful situation in which
they find themselves).
However, Payne then directs the judge to make the erroneous and
unproven supposition that any such distress he observes is an accurate
indicator of the medium to long-term harm the children would surely
suffer, if the applicant is refused LTR.
Judgments in relocation cases, therefore, are arrived at primarily as
a consequence of the application of the suppositions and ideology of
Payne, and not, as is constantly being asserted by the Court of
Appeal, as a consequence of the ‘facts’ per se.
Other ‘facts’ are given very little weight by Payne, and may not even
be recorded in the judgment. For example, facts concerning the child’s
anxieties about having to relocate overseas; its preference to remain
in the UK and in contact with both parents, to remain at its school
and in contact with friends; the applicant’s extensive nexus of
supportive friends; the applicant’s general resourcefulness, work
experience in the UK and so on. These and many other ‘facts’ are given
relatively little weight precisely because the suppositions and
ideology of Payne deem them to be of little consequence.
In summary, it is the relative weight and specific interprepation
Payne gives to various ‘facts’, rather than the ‘facts’ themselves,
which determines relocation judgments.

p) Completely fails to understand or appreciate that a judgment in
favour of removal may very well be considered to be ‘powerful’ but
ONLY if it is assessed using the 1970’s principles, directives and
ideology of Payne.
One might consider a judgment to imprison a black man for entering a
‘whites only’ establishment to be equally as ‘powerful’, if one makes
ones assessment using the principles, directives and ideology of a
1970’s South African Apartheid Law!
That is precisely the error being made by our Court of Appeal.
It believes that it is acting in the ‘paramount interests’ of the
child, just as South African Appeal judges probably believed that they
were acting in the best interests of South African society.

Yours most sincerely
Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)

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