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Gurney v Gurney [2005] EWCA Civ 170

On an application to remove children from the jurisdiction, an accurate assessment of the impact of refusal on the mother is essential.

Gurney v Gurney [2005] EWCA Civ 170

Court of Appeal: Thorpe and Smith LJJ (25 January 2005)

Summary
On an application to remove children from the jurisdiction, an accurate assessment of the impact of refusal on the mother is essential.

Background
The mother, of Argentinian origin, and the father were married in 1994; their twin daughters were born in July 1999; and they separated in 2001. The father had anticipated difficulty over contact when, in November 2001, he applied for a contact order in anticipation of the imminent separation and also for a prohibited steps order to prevent the mother from returning to Argentina with the children. The father's contact with the children was established, initially by agreement and latterly by court order.

In March 2004, the father applied again for a prohibited steps order; and the mother responded by issuing an application for leave to remove the children from the jurisdiction. The judge refused the application to remove, and the mother appealed. The principal ground for appeal related to the judge's assessment that refusal of the application would be distressing for the mother but 'it would not be so distressing as to cause her actual, emotional, or psychological damage': counsel for the mother contended that the judge had applied the wrong test, and that he should have considered the impact of refusal on the mother's sense of well-being and her capacity to transmit that sense of well-being to the children. Counsel for the father argued that, if the court were persuaded by this ground of appeal, the proper course of action would be to remit the case for retrial.

Judgment
Held, allowing the appeal, that the judge had significantly understated the position when he said that it was possible that the mother's unhappiness arising from refusal of the application would affect the children adversely: the authorities in this area show that transference of unhappiness from primary carer to child is almost inevitable. Further, it would not be appropriate to remit the primary issue for retrial. All consequential issues, namely the terms of the contact order and maintenance arrangements, would be remitted to the county court, unless agreed between the parties.

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