Payne v Payne

JurisdictionEngland & Wales
JudgeLord Justice Robert Walker,ORD JUSTICE THORPE
Judgment Date13 February 2001
Neutral Citation[2001] EWCA Civ 166
Docket NumberCase No: 2000/3457
CourtCourt of Appeal (Civil Division)
Date13 February 2001
Clive Anthony Payne
Andrea Catherine Payne

[2001] EWCA Civ 166


The President

Lord Justice Thorpe and

Lord Justice Robert Walker

Case No: 2000/3457



His Honour Judge Langan QC

Royal Courts of Justice


London, WC2A 2LL

Mr P. Cayford (instructed by Miller Sands, Cambridge, CB2 1BE for the Appellant)

Miss Joanna Hall (instructed by Hodge Jones & Allen, London, NW1 9LR for the Respondent)


This was an expedited appeal with the permission of Ward LJ from an order of His Honour Judge Langan made on 20 October 2000 in the Cambridge County Court. The order relates to a little girl, Sophie, who has just attained the age of four. The judge refused an application for a residence order made by Sophie's father, and acceded to an application by Sophie's mother to remove Sophie permanently from the United Kingdom and take her to live in New Zealand. The appeal raised questions of principle of some general importance. At the conclusion of the argument the appeal was dismissed for reasons to be subsequently given in the form of a handed down judgment. The facts set out below reflect the position at the date of the hearing on 21 December 2000. The Facts


The facts fall, as the judge said in his careful reserved judgment, into three distinct periods, with the scene shifting from England to New Zealand and then back again to England. The summary which follows is closely based on the judge's judgment.


The father is British. He is 33 years of age. He lives in Newmarket, as do other members of his family. He is a self-employed controls engineer working in the construction industry, and earning between £40,000 and £50,000 a year.


The mother is a citizen of New Zealand. She is 28 years of age. She comes from North Shore, a suburb of Auckland, which is where her mother, her stepfather, her brother and his partner all live. The mother is at present living in a small flat in Plumstead in South London. She has experience in the financial services industry and she is at present working in the settlements department of an insurance company and earning about £21,000 a year.


The mother came to London when she was in her early twenties. She obtained a job in a bank and intended to use London as a base for travel in Europe. In March 1996 she met the father, who was then living in a house which he had bought in Stamford Hill in north- east London. They fell in love, the mother became pregnant, and they got married on 19 September 1996. Sophie was born on 16 January 1997. The judge thought, after hearing the evidence, that Sophie's parents would probably have got married in any case, but that the pregnancy accelerated their decision. The mother gave up work in order to be at home with Sophie.


Unhappily problems arose soon after Sophie's birth. Sophie's maternal grandmother, Mrs Cornish, came over from New Zealand to help, but she did not get on with the father and she moved out of the house at Stamford Hill. In July the parties separated, but only for two weeks. The mother complained that the father was domineering. It also appears (not so much from the judgment of Judge Langan but from the judgment of Judge O'Donovan in family proceedings in New Zealand in May 1999) that part of the trouble was that the mother did not like living in Stamford Hill, in a house without any garden, and in a part of London which she did not find congenial. Even before Sophie was born, her parents had been talking of selling the house. It was put on the market but it was not sold until February 1998.


By then Sophie's parents had definitely decided to go abroad, but there was a conflict of evidence at the first instance hearings in New Zealand and England as to what their plans really were. The mother's case was that they would all live in New Zealand, after the husband had first carried out a contract in Kuala Lumpur. The father's case was that the stay in New Zealand was to be exploratory, with no firm commitment, especially as his work prospects were uncertain. That issue was of great importance to Judge O'Donovan, sitting in New Zealand, since he had to deal with Hague Convention issues, as reflected in sections 12 and 13 of the Guardianship Amendment Act of New Zealand. Judge Langan took the view that those past controversies had little if any relevance to decisions about Sophie's future.


So the family left England, the mother and Sophie for Auckland and the father for Kuala Lumpur. The mother and Sophie were in New Zealand for about fourteen months, from March 1998 until May 1999. For three months they lived with Mrs Cornish and her husband. Then they moved into a two-bedroom flat.


Until August 1998 the father was mostly working in Kuala Lumpur, but with one short visit (of about a week) to New Zealand in June. The father made enquiries about employment opportunities but was not encouraged. He also observed a lack of warmth on the part of his wife. This was more marked when he arrived in New Zealand for a second time on 27 August 1998, after the completion of the contract in Kuala Lumpur. Indeed, the couple separated within a week. On 3 September 1998 the mother applied to the North Shore Family Court for custody and an order preventing the father from removing Sophie from New Zealand. The father made a cross-application for custody and permission to remove Sophie from the country. There were fairly lengthy proceedings in which both parents gave oral evidence. Judge O'Donovan did not find the mother a convincing witness. He thought it likely that even before they left England she had decided to separate from the husband once they got to New Zealand. He thought that their problems on his arrival in August 1999 were (in Judge O'Donovan's words):

"due to the attitude of the wife, which clearly was that she did not want to remain in the marriage and had turned her back completely on the possibility of living other than in New Zealand."


On 4 May 1999 Judge O'Donovan ordered that Sophie should be returned to the United Kingdom and she travelled back on 16 May 1999 by a Malaysian Airlines flight, accompanied by both her parents. So began the third and most recent chapter of her life. When they arrived at Heathrow the father went to Newmarket and the mother took Sophie, not to her uncle and aunt in Finchley (whose address the mother had given to the father) but to another address unknown to the father. The father traced them within a few days, with the help of the police, but the incident caused him distress. Judge Langan said of this episode:

"the mother's conduct at this stage was, as I believe she now recognises, of a most discreditable kind even if one makes every allowance for the aftermath of the Hague Convention proceedings and the stress of the flight from Auckland. What she did was bound to cause hurt and genuine anxiety to Sophie's other parent"


Proceedings were then instituted in the Cambridge County Court, and a consent order was made on 2 June 1999 which regulated Sophie's life from then until the recent applications. A residence order was made in favour of the mother, but she was prohibited from removing Sophie from the jurisdiction. The father was to have contact with Sophie under provision which the judge described as follows:

"Sophie is to have contact with the father on alternate weekends, from Thursday evening to Sunday afternoon, together with an additional period of seven days in every eight weeks. In fact, by agreement between the parties, the alternate weekend contact has been extended so that it starts on Wednesday evening. If my calculations are correct, what all this means is that, in every cycle of 56 days, Sophie spends 23 nights with the father."


The judge then described Sophie's life with her mother:

"The mother lives, as I have already stated, in a one-bedroom flat in Plumstead. Most of the units in the development are occupied by elderly people, so that the environment is not ideal for a mother who is bringing up a young child. The mother's job is in Borough High Street, London SE1. Apart from times when Sophie is with the father, the mother and Sophie leave home at 0730 on working days. The mother drives to a nursery some 10 to 15 minutes away, and leaves Sophie there for the rest of the day. She continues her journey to work by car, walking, train and walking again, and is at work from 0900 to 1700. In the evening she makes the return journey, collecting Sophie on the way, and they get home at about 1815."


The judge then summarised the mother's financial position (earnings of £21,000 a year, maintenance for Sophie paid by the father of £75 a week, and no social security benefits; rent of £400 a month and nursery fees of nearly £100 a week payable even if Sophie attends for only part of the week). The judge then described the mother's feelings about her present way of life, and the position about contact during the preceding year:

"The mother has an intense dislike of life in London. She feels isolated and gets depressed. She does not like the area in which she lives. Last year her car was stolen, and crimes (including a rape) have been committed just outside her house. Such friends as she has live a considerable distance from Plumstead, although she does have two stepbrothers who live not too far away. Because of her working arrangements, and social difficulties (she does not have much chance to meet other young mothers), she is, in her own words, 'unable to facilitate Sophie's need to meet other children to play with or do outside activities much'.

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