ILR - Leave to Remove-Form over Substance is what’s important

In this two-part article Richard Gregorian and Gavin Emerson of Gregorian Emerson Family Law Solicitors explain the difficulties with the arguments relied on by critics of Payne v Payne and explain why the focus in defending these critically important proceedings should be on ensuring due process.

Payne v Payne here to stay?

Over recent months, a great many hard and soft copy column inches have considered the extent to which reported cases represent a change in the judicial approach to leave to remove cases involving the international relocation of children.   

Lobbyists for a change seize any expression of judicial discontent with the present law (often referred to as the "Payne discipline" [1A]) as vindication of their prolonged calls for change and chastise the entire judiciary and family justice system for having got the law "wrong" and caused decades of irreversible emotional and psychological damage to the children the subject of these cases.

Judicial reminders of the applicability of the Payne discipline are met with accusations that the law is based on an antiquated belief systems regarding paternal involvement in their children's lives (in the vast majority of cases, the mother is the applicant parent wishing to emigrate with the child(ren) of the marriage/relationship and the father is the respondent opposing the relocation - reflected in the terminology adopted in this article but the points apply equally to which ever parent makes the application or defends), and adopts a patriarchal view of mothers through the distress argument (the negative emotional and psychological effect on the mother of being refused their emigration wishes and the likelihood of affecting her future parenting).  In certain quarters, there is talk of a judicial conspiracy and closing of ranks. 

Indeed, in W(Children) [2011] [2A], Sir Nicholas Wall, the President of the Family Division, felt it necessary to include a postscript to his judgment clarifying a simple truism he stated as a Lord Justice in Re D (Children) [2010] [3A], which he believed was being misinterpreted and overplayed by critics of the Payne discipline [4A].  In Re D, the President acknowledged that there may be a case where a respondent father who had been unsuccessful at first instance in defending a leave to remove case, could obtain permission to appeal on the basis of there being a "compelling reason why the appeal should be heard",[5A] because "there is a perfectly respectable argument for the proposition that [Payne V Payne] places too great an emphasis on the wishes and feelings of the relocating parent and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent" [6A] (albeit in W (Children) he accepted the criticism of Lord Justice Wilson in Re H (A Child) [2010] [7A] of the use of the word "ignores"). 

In refusing the father permission to appeal in Re D (Children), and, therefore, ultimately a possible review of the Payne discipline by the Supreme Court, it was doubtless a factor (albeit not expressed),