In June 2010, we witnessed two remarkable events. First came the criticism by the High Court of the Court of Appeal’s guidance in international child relocation cases. In the High Court, the Honourable Mr Justice Mostyn QC called for the urgent review by the Supreme Court of the Court of Appeal’s guidance. That guidance, from the case Payne v Payne, has stood for 9 years, and reinforced an ideology which originally came from the 1970s. The guidance in Payne heavily influences outcomes in both international and internal relocation cases (where one separated parent seeks to move a considerable distance from the other, and uproot the children).

The second surprise, on 30th June 2010 at 7.30am, was an interview on Radio 4 with Lord Justice Thorpe. I cannot remember a Lord Justice of Appeal going on a ‘drive time’ slot on national radio, but I suppose it may have happened. In answer to the very public criticism of the guidance in relocation cases, he defended himself by saying that the guidance was not his, but the court's. He went on to say that the guidance in Payne was ‘about right’ until challenged by the interviewer. Then there came a seemingly grudging acceptance that there needs to be a review, and more crucially, his guidance (he is, after our, Head of International Family Law) was out of step with international law in the rest of the Commonwealth. I say his guidance, since as he himself said, it was his decision in the case Payne v Payne (albeit supported by Butler-Sloss) to keep in place the guidance which had existed since the 1970s. Finally came his admission that the arguments against that guidance were not hard to articulate. Not hard for anyone else it seems.

At a conference last week entitled "International Child Abduction, Relocation and Forced Marriage", organised by the Centre for Family Law and Policy, Lord Justice Thorpe called for an international consensus on relocation, and on this point, we'd raise the following questions:

Why are the judiciary setting family policy, and since when was this the prerogative of the judiciary and not Parliament? The judiciary are not elected, and not accountable. As you will read further on, even when Parliament has set family policy, the judiciary do not necessarily follow it. Is this acceptable in a democracy?

Why is it necessary for there to be an international consensus before the law changes in this country?

Nowhere in Thorpe's speech does he talk of child welfare, child welfare research, or evidence. Instead, he talks of convention, protocols and consensus among his international peers.

The Custody Minefield, an organisation that provides information to separating parents, has been campaigning against the court’s guidance in relocation cases for some time. Ours was not the first campaign seeking to overturn Payne v Payne. The Poel Group had tried, albeit unsuccessfully, but in the last 5 years, momentum has been slowly growing and reached a tipping point at the end of 2009.

In 2005, 85% of solicitors in a debate by the Law Society agreed that leave to remove applications were too readily granted by the courts. A leading psychiatrist stated there was no evidence to support the assumptions upheld by Thorpe in Payne v Payne. Were the legal or psychiatric professions’ opinion heeded? No.

In 2008, Mr Justice Mostyn QC put forward arguments in G (A Child) which again challenged the guidance in Payne, but his arguments were rejected by the presiding judge. Who was that judge? Thorpe LJ.

In July 2009, a report into Relocation by the charity Reunite called into question the guidance in Payne. That same month, the Centre for Social Justice suggested there needed to be a review. A week after, as reported in the press, a relocation case came before Thorpe (R (a Child)). Thorpe accepted that the father’s plans for the child were concrete whereas the mother’s were ‘somewhat nebulous’. Thorpe found that the child was happy and secure where she was, settled and doing well at school. He pronounced ‘all that would be rendered history’ if she moved, which of course, he allowed. Such bizarre outcomes have been commonplace under Thorpe’s leadership on relocation.

In October 2009, an Early Day Motion calling for a review of Payne was tabled in Parliament. Also came our own Parliamentary Briefing Report, citing the psychological, sociological and developmental research which suggested that the guidance in Payne led to outcomes which were harmful to children. We organised a concerted campaign for constituents to contact their MPs (some 4000 emails were sent by individual members of the public). The campaign was supported by Families Need Fathers, The Find Savannah-Jade Campaign, and JUMP. A response from the family courts, written by Sir Mark Potter, the then President, came in reply, stating that he did not see that Payne needed review until such time as longitudinal studies showed a need. The existing research findings presented in our report were ignored, although neither he nor Thorpe had research to support their own long held ideology. In 40 years, no such research has ever supported their position. It seemed that Payne v Payne would remain until the unlikely day that research was published which might uphold the court’s view. It was hoped that that research might come from an Australian study in 2010. It didn’t.

In January 2010, The Custody Minefield helped write the submissions for an appeal case before the Royal Courts of Justice (D (Children)). We later published the generic argument to assist other parents. Our arguments confirmed there being no need for additional longitudinal studies prior to Payne being reviewed by the Supreme Court. There were ample studies in existence, and indeed a compelling number which showed children suffer psychological, sociological and developmental harm when separated from a parent. The arguments which directly challenged the guidance in Payne were accepted as ‘compelling in the right case’, but the father’s appeal was still refused. When permission to appeal is refused by the Court of Appeal, according to our somewhat perverse laws, a parent is prevented from taking the matter to the Supreme Court. The Court of Appeal has an effective right of veto, and so, the father’s application was blocked. We were privately told that the courts were hoping that the international judiciary would support the UK’s guidance in a new Hague Convention. It seemed there was a hope that the guidance in Payne might be salvaged if it received international approval. It didn’t.

March 2010 saw a meeting of international judges in Washington. The ensuing Washington Declaration on International Family Relocation gave clear, concise guidance for relocation cases, and new guidance which is entirely focussed on child welfare. Thorpe’s favoured ‘distress argument’ was not supported. The last lifeline for the guidance in Payne had evaporated.

June saw a newly appointed High Court Judge, the Honourable Mr Mostyn, savage the ideology of Payne in the case AR (a Child: Relocation). Mostyn J happens to be editor for Jordan’s International Family Law publication, and within a fortnight, Thorpe was on the radio.

In his radio interview, Lord Justice Thorpe said he had been following what was done before. He talks of protocol and procedures. What he misses, which Mostyn doesn’t, is that the paramount duty of the court is not to maintain the status quo for the judiciary and to look back, but to safeguard child welfare and to consider evidence when doing so. The courts’ guidance must be beyond reproach.

It now seems that a review of Payne v Payne is inevitable, and if the new guidance is not based on evidence, then the campaign will switch to calling for the curtailment of judicial discretion and interpretation. Privilege requires responsibility.

In the coming years the Conservatives have committed to a review of family law. Many are calling for shared parenting to be the standard outcome when parents separate. It may surprise you to learn that this was the intention of Parliament and the House of Lords almost a quarter of a century ago. An intention which has until comparatively recently been blocked due to the wrongful judicial interpretation of the Children Act 1989 in contravention of Parliament’s intentions. A bold statement? Consider this excerpt from Hansard: [Hansard Debate (19 December 1988, page 1217 to 1219)]

Lord Kilbracken:
".... As I said in debate, I always thought that was a very good arrangement, where both parents had a residence order and the children went to each of them in succession."
".... However it seems to me that when this definition arises we should emphasise that, by not having the word "person" in the singular in line 43, the residence order may apply in most cases to the father and the mother."

The Lord Chancellor:
".... As I explained earlier, by virtue of Section 6(c) of the Interpretation Act 1978: "Words in singular include the plural and words in the plural include the singular".

Lord Kilbracken:
".... I am very glad to know that will be on record, although of course what is said in your Lordships' committees on the record is in fact never brought up again in any court. But, all the same, I am satisfied by the noble and learned Lords assurance that the singular includes the plural. Therefore I wish to withdraw the amendment."

Parliament also originally intended, when passing the Children Act 1989, that Shared Residence Orders should be commonplace. Parliament's intentions as expressed in 1989, are set out below: [The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989)]

"It is intended that another difference between residence and custody orders is that the new order should be flexible enough to accommodate a much wider range of situations.

In some cases, the order will provide that the child shall live with both parents, even though they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it.

More commonly, however, the order will provide for the child to live with both parents, but to spend more time with one than the other...It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other."

How was this interpreted by the judiciary? The President of the Family Courts, in 1991, stated that shared residence orders should only be made in exceptional circumstances. Democratically determined family policy was hijacked and blocked by the judiciary. Shared residence orders have undeniably become more commonplace over the 20 years, but the change has been unnecessarily slow.

Will reform of family law be successful? I believe that things will certainly improve under Wall’s Presidency, and with judges coming to the fore of Mostyn J’s calibre. As we have seen before, statute can be ignored by the judiciary, and there will only be certainty and consistency if there is better judicial guidance and guidance in keeping with Parliament’s intentions. There also needs to be a new Head of International Family Law who can accept that Payne v Payne is not "about right".