Court Of Appeal Examines Leave To Remove Guidance

Leave to remove applications are an area of law in which we specialise so we have been watching with great interest as the Court of Appeal examined the role of gender in leave to remove applications in  F (A Child) (International Relocation Cases).

aeroplaneFor many years the leading case in this area has been Payne v Payne (2001) in which a series of questions was set out which helped the court determine whether leave to remove the child(ren) from the jurisdiction should be granted.  In the 2015 case F (A Child) (International Relocation Cases), 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 and relationships of parents with a child. Likewise, the absence of any emphasis on the child’s wishes and feelings or to take the question one step back, the child’s participation in the decision making process, is stark.”


The questions in Payne were based on the mother being the child’s primary carer.  The assumption that the mother will always be the primary carer is now outdated but, in the view of the court, has been adopted in many leave to remove cases since Payne in 2001.  It is clear from the judgment that the ‘paramountcy principle’ is the key factor for courts considering such cases, i.e. the child’s welfare and consideration of what is in the child’s best interests is the paramount concern of the court.

The Court of Appeal does not find fault with the court in Payne, but with subsequent courts which have given undue importance to the criteria used in that case such that they have become principles, applying them in cases where they are not necessarily appropriate.  In Payne the criteria were applied as part of the test concerning the welfare of the child but in subsequent decisions they may have been applied ahead of the welfare test.

So will F (A Child) (International Relocation Cases) change things?  Yes and no.  Yes, in the sense that there is now a clear indication in place that the courts should not automatically base their decisions on the Payne criteria and should refer first and foremost to the welfare of the child.  No, in the sense that once the welfare of the child is considered, if the context of the current case is the same as in Payne, then the questions remain appropriate for the court to consider in making its decision.

You can read the full judgment here: F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 (06 August 2015)



What were the criteria the court used in Payne?

(a) Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?…. Is the mother’s application realistic, by which I mean, founded on practical proposals both well researched and investigated? …

(b) Is [the father’s opposition] motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive…What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?…

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?…

Payne v Payne [2001] EWCA Civ 166 (13 February 2001) at para 40 

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