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Court of Appeal rejects ‘gender based assumptions’ in leave to removal appeal

Too much emphasis is placed on guidance in Payne v Payne

In a judgment issued today the Court of Appeal has distanced itself from, what some have described as, an antiquated and gender discriminatory approach to leave to remove cases that has inadvertently been adopted since Payne v Payne [2001] 1 FLR 1052.

In giving judgment in F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 Lord Justice Ryder stated:

"In the decade or more since Payne it would seem odd indeed for this Court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role in relationships of parents with a child." [paragraph 18]

At first instance the mother in Re F was granted leave to remove the child to Germany. The Court of Appeal ruled that the trial judge had erred in law by placing too much emphasis on the guidance in Payne v Payne. There was an absence of an evaluation of the harm on the one hand of leave being refused as against the harm that would result from separation from her father should she move.

Lord Justice Ryder states:

"The questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it." [paragraph 18]

Henry Setright QC of 4 Paper Buildings, leading Alev Giz of 1 Garden Court Family Law Chambers, who (instructed by Dawson Cornwell) led the successful appeal which heralds the importance of the court conducting a balance sheet analysis in such cases, remarked:

"This case is interesting as it demands that Article 8 rights are taken seriously when a child is at risk of separation from a parent."

Alev Giz observed:

"This case highlights the very careful welfare analysis that is required, including a comparative evaluation of all options for the child, bringing private law cases into alignment with public law."

Anne-Marie Hutchinson OBE, partner with Dawson Cornwell, commented:

"This Judgment allows the courts to weigh in the important factor of the erosion in the quality of the relationship between the removed child and the left behind parent, which is as it should be.  This guidance is long overdue and allows the welfare of the child to be at the heart of any decision in this growing area of litigation."

Zoe Fleetwood, an associate at Dawson Corwell, agreed that there must now be a straightforward welfare analysis, consisting of a careful evaluation of all competing interests. This marks a departure from Payne v Payne as any judge relying solely on the guidance in that case will stray into danger.

The judgment is here.