Ct Appeal: Pill, Toulson, Munby LJJ
This case concerned the Spanish parents of a boy aged 8. They moved to England in 2009. By May 2011 the parents made plans to stay until 2013. In July / August 2011 the parents returned to Spain where it became obvious that their relationship was in trouble. The mother briefly came back to England and left the son with his father so that he effectively became the primary carer in the year before the appealed decision. It was her wish to live in Spain permanently whereas the father wished to stay in England. There were a number of court hearings during which it was decided that the child was habitually resident in England. The court eventually made a shared residence order but gave the mother permission to remove the child from the jurisdiction, effectively allowing father to have contact for about half of the school holidays.
Munby LJ characterised the case as neither a Payne case because the mother was not the primary carer nor a shared care case in the sense intended in Re Y & K v K.
Despite it not strictly being a Payne case this did not mean that the court was not entitled to consider the guidance in Payne. Equally it was not a case in which the fact that the father was the primary carer at the time the decision was made to allow the mother to leave the jurisdiction was decisive.
The Judge had weighed many factors in the balance as he was entitled to do including the length of time the child had lived in Spain before the parents moved to England, the fact that almost all of his extended family remained in Spain and that the boy saw himself very much as Spanish & was bilingual and had stayed in touch with his Spanish school friends, the fact that the parents had not decided to live in the UK forever and were likely to have returned to Spain at some point & that the father would be likely to move back to Spain if mother was allowed to return with the child, the ease with which the father could have extensive contact (both parents would promote contact with the other), the evident difficulty which an experienced and thoughtful Cafcass Officer had in making any recommendation (indicating that it was a finely balanced case), the fact that the boy himself was happy in both households but expressed a preference for the short school day in Spain and that mother would be marginally more available to the son as a result of her working hours.
So far as the emotional impact of his decision on the parents he found that both of them would be emotionally devastated at first but neither of them would collapse and in time they would recover.
There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. ... advocates & judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straitjacket. Asking whether a case is a "Payne type case" or a "K v K" type case or a "Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided. The focus from beginning to end must be on the child's best interests