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Court of Appeal rejects ‘gender based assumptions’ in child removal case

The Court of Appeal has abandoned the “gender based assumptions” previously used in cases regarding a parent’s removal of a child to another country.

Lord Justice McFarlane commented that appeals of leave to remove have relied too heavily on the landmark case of Payne v Payne (2001), in which a father’s appeal against the removal of his child to New Zealand was rejected.

“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”, Lord Justice McFarlane stated.

Instead, “the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it”, namely the risk of harm to each party.

The present case concerned a mother who was initially granted leave to remove her child to Germany.  However, the Court of Appeal overturned the rulings on the grounds that the trial judge had placed too much emphasis on the guidance in Payne.

Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

The full judgement can be found here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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