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In a hearing for permission to appeal a leave to remove order today, Lord Justice Wall added his qualified support for a review of Payne v Payne.
However, the judge decided that the case before him was not the right case for a challenge to Payne before the Supreme Court and refused the father's permission to appeal.
The Payne case is controversial amongst parents' rights groups as it gives a child's primary carer considerable freedom to relocate abroad with the child. The case involved a father unsuccessfully appealing against an order allowing the mother to remove their children to New Zealand.
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."
Families Need Fathers, a lobby group for parent contact rights, is disappointed with the decision. Their Director of Communications, Julius Hinks, who was present at today's hearing said: "Court secrecy rules prevent our discussing the merits of the father's own case, as presented in his submission, which were listened to at the earlier hearing. Under contempt rules, we cannot comment on the arguments that the father presented which were not addressed by Wall in his judgment.
"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," Mr Hinks concluded.