Overcoming gender bias in child relocation cases

In Payne v Payne, a child relocation case of 2001, the Court of Appeal held that to refuse the reasonable relocation proposals of a primary carer would likely have a detrimental effect upon the welfare of the child, which is, of course, held to be paramount.

Payne v Payne has served as guidance for these cases ever since. As long as proposals were made with a genuine motivation, they were usually granted. The unintended consequence was that many fathers faced expensive and time-consuming travel arrangements for comparatively little time with their children.

Now, however, in pronouncing judgment in the case of F (A Child) (International Relocation Cases) EWCA Civ 882, the Court of Appeal has distanced itself from the gender bias that has often attended upon leave to remove applications.

Lord Justice McFarlane criticised the way in which such cases have cleaved too closely to the principles laid down in Payne v Payne, stating in paragraph 18 of the judgment:

’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.’

This judgment will be music to the ears of many, particularly fathers, who, it is thought, often lose out due to the perceived gender bias that the courts apply in relation to child relocation cases.

The principles put forward in Payne were reinforced in 2007 in the case of Re G (Leave to Remove) EWCA Civ 1497, when it was held that there had not been enough of a social shift to warrant departing from those principles.

However, the Justice McFarlane ruling has overturned a judgment that was based on Payne. In the first instance, the mother had been granted leave to remove the child to Germany. The Court of Appeal found that the original court had erred in applying Payne to the case, because it failed to evaluate the harm that might ensue from removing the child from the father, as well as the harm that might ensue from refusing the mother the right to remove the child from the jurisdiction.

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