MK v CK

MK v CK

The trial judge's decision was set aside because she failed to properly analyse and explain her rejection of the CAFCASS officer's recommendation, misapplied the legal principles by relying on Payne v Payne instead of the approach in Re Y for shared care cases, and failed to balance the father's case and the impact on his relationship with the children. The only binding principle is the paramountcy of the child's welfare; guidance in Payne is not prescriptive and must be adapted to the facts, especially in shared care situations.

Parties
Appellant: MK; Respondent: CK
Jurisdiction
England and Wales
Judgment Date
07 July 2011
Procedural Posture
Appeal / Judgment on Appeal From High Court (family Division)
Outcome
Appeal allowed; permission to appeal granted; order below set aside; case remitted for retrial if mediation fails.
Legal Topics
Relocation of Children, Shared Residence Orders, Welfare of the Child, Leave to Remove From Jurisdiction
Family Law Child Law Relocation of Children Shared Residence Orders Welfare of the Child Leave to Remove From Jurisdiction

Case Brief

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Parties

MK

Appellant

CK

Respondent

Procedural Posture

Appeal / Judgment on Appeal From High Court (family Division)

Legal Issues

  1. 1 Whether the trial judge erred in granting the mother permission to relocate the children to Canada
  2. 2 Whether the judge failed to properly consider the father's case and the CAFCASS officer's recommendation
  3. 3 Whether the judge misapplied the legal principles governing relocation in shared care cases

Ratio Decidendi

The trial judge's decision was set aside because she failed to properly analyse and explain her rejection of the CAFCASS officer's recommendation, misapplied the legal principles by relying on Payne v Payne instead of the approach in Re Y for shared care cases, and failed to balance the father's case and the impact on his relationship with the children. The only binding principle is the paramountcy of the child's welfare; guidance in Payne is not prescriptive and must be adapted to the facts, especially in shared care situations.

Court Disposition

Appeal allowed; permission to appeal granted; order below set aside; case remitted for retrial if mediation fails.

Orders

  • Permission to appeal granted.
  • Appeal allowed; order granting relocation set aside.