The father in the Case of Re-D has written here before, concerning the injustice of removing his children from UK and, effectively, from his life. In a further publication (see the full article on this link) the father offers a considered analysis of the irrational tangle into which this area of law has plunged itself.

In the following extract, he illustrates how Lord Justice Wall raised the possibility of a legal challenge to the Payne v Payne precedent, and then inexplicably appeared to close the door again on that possibility a few months later.

Whoever is pulling the strings behind the scenes, and whatever their motive, it has nothing to do with the welfare of children.

EXTRACT FROM ARTICLE
A Summary of the Position of the Judiciary:

After reserving judgment in Re D (Children) [2010] EWCA Civ 50 and giving himself three weeks in which to “reflect carefully” on the arguments presented by the litigant-in-person father, and to read the fifteen contemporary scientific papers exhibited – giving detailed evidence of the psychological, developmental and educational harm and disadvantage children are likely to experience in the absence of a close, frequent and meaningful relationship with both parents – Sir Nicholas Wall wrote in his publicised judgment that…

“…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… relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent… 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.”

However, one year later, in Re W (Children) [2011] EWCA Civ 345, Sir Nicholas Wall performed an inexplicable U-Turn on the issue of Payne v Payne, declaring:

“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…”

WHO, though, had been guilty of according “too much weight” and “undue prominence” to Re D????? Let’s find out…

SIR NICHOLAS WALL himself on at least 2 occasions!

Firstly, in an interview Sir Nicholas gave to ‘Family Affairs’ on 12 August 2010:

“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?
“As I said recently in Re D (Children) [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 Dwas 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, but a finely balanced case is likely to turn on the trial judge’s exercise of discretion, with which it may be difficult to interfere.”