One of the worst and most notorious of family cases this century was the decision by Lord Justice Thorpe and Lady Justice Butler-Sloss in Payne v Payne [2001] EWCA Civ 166 – hereafter Payne – in which the Court of Appeal allowed a mother permanently to relocate her four-year-old daughter to New Zealand.

The father resisted the application, but in vain.  He sought to use the recently introduced Human Rights Act, but Thorpe balanced his Article 8 right to family life against the mother’s right under Article 2 of Protocol 4, though not yet ratified by the UK, to ‘liberty of movement and freedom to choose [her] residence’.  Thorpe dismissed the importance of continuing contact because the father omitted any supportive authorities, notwithstanding the fact that Thorpe himself must have been well aware of them.  The case was further hampered by a CAFCASS officer who was ignorant of the law and based her limited understanding upon notes made by a colleague at a seminar she herself did not attend.

Thorpe introduced two principles to decide the case, firstly, the Court had no right to interfere with a mother’s right to move abroad if she wished to do so: it would risk the survival of the new family or blight its potential for ‘fulfilment and happiness’.  Secondly, if the mother’s application were refused it would have such a ‘detrimental impact’ upon her as to render her forever after incapable of effective parenting.  The effect was to establish a principle that a mother’s application to relocate her child would invariably be granted unless a father could argue why it should not; indeed, Thorpe had already suggested in MH v GP (Child: Emigration) [1995] 2 FLR 106 that the Court’s acquiescence to the resident parent’s wishes was a ‘presumption’ which could only be overturned by an overwhelming welfare argument.

The result, as the father’s counsel, Philip Cayford QC, would report ten years later, was that the unfortunate girl, S, would never see her father again.  Payne has dominated and blighted innumerable cases since, so that thousands of relationships between fathers and their children have been destroyed, despite the expenditure, no doubt, of many millions in the Court of Appeal.

For years, we were told that the precedent set by Payne would stand unless a suitable case were taken by the Supreme Court to overturn it, or the Government enacted new primary legislation.  In the years since, however, a number of judges have tried to wriggle out from under Payne.  In in Re Y [2004] 2 FLR 330, for example, Mr Justice Hedley argued that,

This case falls factually outside the ambit of well-settled authorities in this area of the law.  It demonstrates, in a way few cases can, quite how, when everything has been said, done and considered the ultimate test remains the welfare of the child, which in the last analysis overbears all other considerations, however powerful and reasonable they may be.

More recently, in K v K (Children) [2011] EWCA Civ 793, Thorpe admitted,

The only principle to be extracted from Payne v. Payne is the paramountcy principle.  All the rest… is guidance as to factors to be weighed in search of the welfare paramountcy.

Where each [parent] is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised.

The trend away from Payne continued with Re F (A Child) [2012] EWCA Civ 1364, Re TC and JC (Children: Relocation) [2013] EWHC 292 and Re Y (Children) [2014] EWCA Civ 1287.  The final nail in the coffin seems to have come with Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 in which Lord Justice Ryder issued this extraordinary warning for future cases,

Selective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law.  In particular, a judgment that not only focuses solely on Payne, but also compounds that error by only referring to the four point ‘discipline’ set out by Thorpe LJ at paragraph [40] of his judgment in Payne is likely to be wholly wrong.

How has this remarkable volte-face come about?  The answer seems to be that the judges have performed a sleight-of-hand, a conjuring trick.  It began with K v K, in which Lord Justice Moore-Bick, whose expertise was in commercial and not family law, observed,

I cannot help thinking that the controversy which now surrounds [Payne] is the result of a failure to distinguish clearly between legal principle and guidance… As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance.

Herein lies the trick the judges have performed.  All Thorpe’s principle in Payne which judges had mercilessly applied since 2001 wasn’t principle at all: it was merely guidance.  What had been interpreted as ratio – that part of a judgment which contains the judge’s reasoning and which may set a precedent – wasn’t ratio at all, it was in reality just obiter – the asides, illustrations, analogies, opinions and references which go beyond the facts of the case and are not the meat of the argument or essential to the decision.

By relegating Thorpe’s principles from ratio to obiter they ceased to be binding precedent and became merely ‘valuable’ guidance; the sole principle for deciding these cases remained the welfare of the child, and – hey presto! – the tyranny of Payne was broken.