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Family Law

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Court of Protection Practice and Procedure Conference 2016

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20 SEP 2011

Relocation cases: is the Court of Appeal applying the correct principles? [2006] CFLQ 351

This article argues that trial judges are being prevented from exercising their discretion in relocation cases in a broad and principled manner by strong rulings from the Court of Appeal. Relocation decisions have a profound affect on the ability of children to maintain frequent contact with their fathers. In the author's view, the 'discipline' recommended in Payne v Payne, and entrenched as a ruling of law by subsequent Court of Appeal judgments, is misguided. The gloss Payne places on the welfare principle narrows the proper application of that principle and is biased towards the residential parent, almost invariably the mother. As a consequence, the Court of Appeal is overruling decisions of trial judges to refuse leave to relocate in circumstances where the House of Lords has ruled that an appellate court should refrain from intervening.

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