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Is the time ripe for a reconsideration of Payne v Payne?

Lord Justice Wall considers the possibility of appeal to re-examine relocation cases

In Re D (Children) [2010] EWCA Civ 50, reported by Family Law Week this week, Lord Justice Wall has stated that there is a perfectly reasonable argument for the proposition that the Court of Appeal judgment in Payne v Payne places too great an emphasis on the wishes and feelings of the relocating parent.

In his judgment in Re D (Children), Lord Justice Wall commented:

‘There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.’

He went on to say, ‘this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.’

Lord Justice Wall concluded that the case before him was not such because the mother had made a powerful argument for relocation and in the event that the appellant were successful, a retrial would be likely. In his opinion a further delay, which a retrial would inevitably cause, would not be in the family’s interests.

On behalf of Families Need Fathers, Becky Jarvis, commenting on the case, said:

"Now that contemporary research confirms the risk of harm, it is entirely unacceptable that the courts continue to ignore such compelling evidence. The sysem is well served and protected, children are not. For 39 years the courts have allowed relocation and leave to remove without properly considering the impact on children."

Recent research into outcomes for relocated children was considered in an article by Clare Renton. The judgment in Re D (Children) can be read here.