• Lord Justice Wall accepts that there is a “perfectly respectable argument” for a review of Payne v Payne
• Families Need Fathers believes that the systemic delays in the family courts will always prohibit child welfare being properly considered and protected in relocation cases
• Legislation is urgently required

On 9th February 2010, Lord Justice Wall pronounced judgment in the first permission to appeal hearing on a leave to remove matter since December 2009, when Sir Bob Geldof and The Custody Minefield released a report criticising the courts for their application of out-dated case law in “leave to remove” cases. Families Need Fathers’ Director of Communications was present at this.

In his judgment, Lord Justice Wall commented, ‘there has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.’ He went on to say, ‘this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.’

In this case however, Lord Justice Wall goes on to refuse the father’s permission to appeal, his reasons being: that the trial judge found the mother’s reasons for her wanting to relocate were genuine; and if the Supreme Court were to find that the weighting of evidence was wrongly applied by the judiciary in this and other leave to remove cases, a retrial would be likely. Wall stated his belief that a further delay, which retrial would inevitably cause, would not be in this family’s interests.

As contemporary scientific research proves, harm is not only caused to children from the extremes of a permanent breach to their relationship with the left behind parent, but by children not having both parents involved in their day-to-day care and schooling. What is more, Wall’s decision is not child-centred when he states that the relocating parent made a strong case for her moving, as he makes no mention of the impact on the children of how relocation may affect their sociological, psychological, emotional and educational development.

LJ Wall refuses permission to appeal due to his perception that the family would suffer harm caused by a further delay.  Delay in family proceedings is inevitable given the current and ongoing crisis in the courts. Thus, LJ Wall's reasoning prohibits the proper development of law, and is likely to continue to do so until the unforeseeable day when the courts are not plagued by delay.

For 39 years, the courts have allowed relocation and leave to remove without properly considering the impact on the children. Now that contemporary research confirms a risk of harm, it is entirely unacceptable that the courts continue to ignore such compelling evidence while upholding the legal niceties of process, procedure and precedent. The system is well served and protected, children are not.

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