HOUSE OF LORDS
G (A.P.) (APPELLANT)
G (A.P.) (RESPONDENT)
Lord Fraser of Tullybelton
Lord Bridge of Harwich
LORD FRASER OF TULLYBELTON
This is an appeal by leave of the Court of Appeal from a decision of that court (Sir J Arnold P. and Sheldon J.) affirming a decision of His Honour Judge Jalland in the Manchester County Court in which the learned judge awarded the custody of two children to their father, the respondent. I shall refer to him as "the father" and to the appellant as "the mother." The main question in the appeal is whether the Court of Appeal has correctly stated the principle upon which an appellate court should proceed when reviewing a decision of a judge in the exercise of his discretion involving the welfare of children. There is also a question as to the circumstances in which additional evidence, which had not been before the judge, should be admitted by an appellate court.
The father and the mother were married to each other on 26 June 1976. Both had been married before, and both had suffered the misfortune of losing their former spouses by death. Their marriage to each other was interrupted by several periods of separation, followed by reconciliations, and they were eventually divorced in 1983. Both had children from their former marriages living in family with them. At the time of the divorce there were three groups of children. The first group consisted of the two children of the father and his first wife. They are M, born on 15 October 1965, and C, born on 5 May 1967. Since the divorce they have lived with the father, and no question of their custody arises as they are old enough to decide for themselves where they wish to live. Then there were three children of the mother and her first husband. They were adopted by the father and mother shortly after their marriage in October 1976. They are E, born on 1 February 1969, J, born on 10 July 1970, and B, born on 14 June 1972. They live with the mother to whom their custody was granted, and no question arises about that. Finally, there are the two children of the marriage between the father and the mother. They are D, born on 6 April 1977, and N, born on 4 January 1979. It is about these two children that the dispute leading to this appeal has arisen.
The mother left the matrimonial home on 13 September 1983, as a result of the husband's behaviour, taking with her E, J and B. She tried to take D and N but was prevented from doing so. In October 1983 she applied to the Manchester County Court for the custody of her own three children and also of D and N. The application was heard by His Honour Judge Jalland on 20
March 1984, when the learned judge granted custody of the mother's own three children to her, but ordered that D and N should remain in the custody of the father, where they still were, and that they should be under the supervision of the Manchester Social Services Department. The order also contained a further provision to which I shall refer later. The learned judge stated his reasons for granting the custody of D and N to the father, and a note of his judgment, agreed between counsel who appeared at the hearing, is now before the House. It is not necessary for me to repeat the judge's reasons in any detail at this point. It is enough to say that he relied largely on the very favourable view that he had formed of M, and of her devotion to the younger children, her half-siblings. M was aged about 18 1/2 years at the date of the hearing in the county court and is now aged about 191/2 years. The judge was fully aware of the possibility that she might leave her father's house either on marriage or for some other reason and his order made provision for that possibility.
From that decision the mother appealed to the Court of Appeal (1984) 6 F.L.R. 70. Sir J Arnold P. gave the first judgment and, before dealing fully with the facts of the case, he referred generally to the method of trying appeals in cases concerning the custody of children. After referring to some recent reported cases on the subject, the learned President said, at p. 72s
"Those cases exhibit some degree of homogeneity, of course; but they also seem, at first sight, to exhibit a degree of semantic dichotomy. It is a discernible thread running through, I think, every one of those cases and the cases cited in them, that it is not decisive of an appeal in this court from the decision of the court below, exercising the particular discretionary jurisdiction of deciding the custody of children (but also, I think, any discretionary jurisdiction), that the result of the exercise of discretion would, or might, have been different if the members of the Court of Appeal had themselves been exercising the discretion. There has to be more than that before the discretionary decision can be overturned. The question, if there be one, is: How much more?"
He stated his conclusion in the following passage, at p. 73:
"I believe that there is a way of reconciling these cases. I believe that if the court comes to the conclusion, when examining the decision at first instance, that there is so blatant an error in the conclusion that it could only have been reached if the judge below had erred in his method of decision - sometimes called the balancing exercise - then the court is at liberty to interfere; but that, if the observation of the appellate court extends no further than that the decision in terms of the result of the balancing exercise was one with which, they might, or do, disagree as a matter of result, then that by itself is not enough, and that falls short of the conclusion, which is essential, that the judge has erred in his method. I cannot think of any case in which this particular issue has had to be faced, in which that method of determination is not intellectually satisfactory, logically supportable or consistent with the result of any of the cases in the appellate courts; and I shall approach this case on the footing that what this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method - apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters."
Miss Platt, who appeared for the mother both in the Court of Appeal and before your Lordships, criticised that statement of principle. I hope that I shall not misrepresent her contention if I summarise it as follows. It falls into two parts. The first is that when an appellate court is exercising its jurisdiction in cases concerned with children, in which the welfare of the children has been declared by Parliament to be the first and paramount consideration - see Guardianship of Minors Act 1971 - special rules apply. Secondly, it was said that in such cases the only proper way in which an appellate court can assess whether the judge of first instance has exercised his jurisdiction correctly, is to carry out the same balancing exercise between the various factors in favour of and against each party as the judge at first instance has done, and if it reaches a different conclusion from him as to what is in the best interests of the child, it must allow the appeal.
The argument which I have thus crudely summarised was of course expanded and elaborated, and was very persuasively presented, but I am of opinion that it is unsound. I entirely reject the contention that appeals in custody cases, or in other cases concerning the welfare of children, are subject to special rules of their own. The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed. The limited role of the Court of Appeal in such cases was explained by Cumming-Bruce L.J. in Clarke-Hunt v. Newcombe (1982) 4 F.L.R. 482, where he said, at p. 486:
"There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the latter. Whether I would have decided it the same way if I had been in the position -of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasise the word 'plainly.' In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong."
That passage, with which I respectfully agree, seems to me exactly in line with the conclusion of Sir 3 Arnold P. in the present case, which I have already quoted. The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases therefore the judge has a discretion and they are cases to which the observations of Asquith L.J., as he then was, in Bellenden (formerly Satterthwaite) v. Satterthwaite  1 All E.R. 343, apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith L.J. said, at p. 345:
"It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."
I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge. The circumstances in which the Court of Appeal should substitute its own decision have been described in a number of reported cases to some of which our attention was drawn. We were told by counsel that practitioners are finding difficulty in ascertaining the correct principles to apply because of the various ways in which judges have expressed themselves in these cases. I do not think it would be useful for me to go through the cases and to analyse the various expressions used by different judges and attempt to reconcile them exactly. Certainly it would not be useful to enquire whether different shades of meaning are intended to be conveyed by words such as "blatant error" used by the learned President in the present case, and words such as "clearly wrong," "plainly wrong," or simply "wrong" used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The principle was stated in this House by my noble and learned friend Lord Scarman in B. v. W. (Wardship: Appeal)  1 W.L.R. 1041, where, after mentioning the course open to the Court of Appeal if it was minded to reverse or vary a custody order he said, at p. 1055:
"But at the end of the day the court may not intervene unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly."
The same principle was expressed in other words, and at slightly greater length, in the Court of Appeal (Stamp, Browne and Bridge L.JJ.) in In re F. (A Minor) (Wardship: Appeal)  Fam. 238, where the majority (Browne and Bridge L.JJ.) held that the court had jurisdiction to reverse or vary a decision concerning a child made by a judge in the exercise of his discretion, if they considered that he had given insufficient weight or too much weight to certain factors. Browne L.J. said, at p. 257E:
"Apart from the effect of seeing and hearing witnesses, I cannot see why the general principle applicable to the exercise of the discretion in respect of infants should be any different from the general principle applicable to any other form of discretion."
Bridge L.J., as my noble and learned friend then was, agreed with Browne L.J. and I quote a passage from his speech where, after stating that his view was different from that of the judge, he went on to say, at p. 266:
"Can this conclusion prevail or is there some rule of law which bars it? The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, left out of account any relevant matter, erred in law, or applied any wrong principle. On the view I take, his error was in the balancing exercise. He either gave too little weight to the factors favourable, or too much weight to the factors adverse to the father's claim that he should retain care and control of the child.
"The general principle is clear. If this were a discretion not depending on the judge having seen and heard the witnesses, an error in the balancing exercise, if I may adopt that phrase for short, would entitle the appellate court to reverse his decision [authorities cited]. The reason for a practical limitation on the scope of that principle where the discretion exercised depends on seeing and hearing witnesses is obvious. The appellate court cannot interfere if it lacks the essential material on which the balancing exercise depended. But the importance of seeing and hearing witnesses may vary very greatly according to the circumstances of individual cases. If in any discretion case concerning children the appellate court can clearly detect that a conclusion, which is neither dependent on nor justified by the trial judge's advantage in seeing and hearing witnesses, is vitiated by an error in the balancing exercise, I should be very reluctant to hold that it is powerless to interfere."
The decision in In re F. (A Minor) (Wardship: Appeal)  Fam 238 is also important because the majority rejected, rightly in my view, the dissenting opinion of Stamp L.J., p. 254, who would have limited the right of the Court of Appeal to interfere with the judge's decision in custody cases to cases "where it concludes that the course followed by the judge is one that no reasonable judge having taken into account all the relevant circumstances could have adopted." That is the test which the court applies in deciding whether it is entitled to exercise judicial control over the decision of an administrative body, see the well known case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223. It is not the appropriate test for deciding whether the Court of Appeal is entitled to interfere with the decision made by a judge in the exercise of his discretion.
For these reasons I am of opinion that the Court of Appeal in the present case applied the correct principle in deciding whether to interfere with the judge's decision.
I pass now to the second question which arises because the Court of Appeal refused to admit, or to look at, two pieces of additional evidence which had not been before the county court judge but which counsel wished to place before the Court of Appeal. These two pieces of evidence were (1) a further report, the third, from a welfare officer employed by the Manchester Social Services Department, under the supervision of which the children were, and (2) an affidavit by the mother relating to access visits by the children to her since the date of the hearing before the judge.
We were informed by counsel that the welfare officer's report repeated her view, already expressed in her earlier reports which had been before the judge and which he had already in effect rejected, that custody of the children should be granted to the mother. I would have been surprised if the Court of Appeal had looked at this report as it seems unlikely to add anything of significance to the information and opinion already considered and rejected by the judge. Miss Platt went so far as to submit, as a proposition of law, that, where the Court of Appeal was invited to admit additional evidence consisting of a report from a welfare officer or from an officer of the court with a duty to act impartially and not on behalf of either party, it was bound to admit the evidence. No authority was cited for this proposition, and in my opinion it is unsound and indeed extravagant. It would amount to a licence to waste the court's time by introducing irrelevant matter. The Court of Appeal itself must be entitled to decide, in the exercise of its discretion, whether to look at additional evidence or not. Additional evidence dealing with events that have occurred since the hearing in the court below is readily admitted, especially in custody cases where the relevant circumstances may change dramatically in a short period of time. But it must be a matter for the discretion of the court in each case to decide whether the additional evidence which it is asked to look at is likely to be useful or not and to reject it if it considers it unlikely to be so.
With regard to the mother's further affidavit, I understand that it does little more than describe the childrens' access visits and narrate that they have been happy and successful. Evidence to that effect would not add significantly to that which had been before the judge, and in my opinion the Court of Appeal was well entitled to refuse to look at it.
I am accordingly unable to see that the Court of Appeal fell into any error in refusing to look at either of these pieces of additional evidence.
Coming now to the facts of this appeal, I consider that the Court of Appeal correctly applied the principle which I have already stated when it affirmed the judge's decision that custody of D and N should be awarded to the father. Miss Piatt's main criticism of that decision was that it gave too great weight to M's ability to look after the children, and too little weight to the risk that she might soon leave her father's home and be unable to continue to look after them. I do not accept that criticism in either of its branches. The judge saw and heard M giving her evidence and he formed a very high opinion of her. I need quote only one sentence from the note of his judgment on this point; he is recorded as having said "I am certain, satisfied and sure that due to her [M] these children are being better looked after than by Mr. G and Mrs. G or either of them." Bearing in mind that the judge had seen both the father and the mother as well as M and that the Court of Appeal had seen none of them, it is in my opinion impossible to criticise the Court of Appeal for refusing to interfere with the judge's decision. He recognised the possibility that a girl of M's age might marry and leave her father's home, and he provided for that possibility by including in his order a direction that the matter be referred back to the court in the event of M leaving the home of the father. It is, of course, possible that M may leave her father's home shortly and that the matter may then have to be reconsidered, but she may not. She may continue to be available for several years during which the children will be growing up. I respectfully agree with the view expressed by both members of the Court of Appeal that the judge was entitled to decide that the best course for the children would be to avoid the disturbance of moving them now from the father's home, where they are secure and well cared for, because there is a reasonable prospect that they may be able to remain there in the same conditions for several years. The judge understandably and wisely did not criticise the mother, but he evidently had some misgivings about her ability to look after D and N as well as the three children already in her custody, whose conduct had not been entirely satisfactory. In these circumstances I am of the opinion that the criticism of the Court of Appeal's decision fails entirely.
In conclusion, I must draw attention to the fact that we have in the printed case for the appellants another example of a case which is excessively long, (40 pages of single spaced typescript) and which cites an excessively large number of authorities (about 30). Such a case adds unnecessarily to the costs of an appeal, and it is not helpful to the members of the Appellate Committee who consider it before the hearing. The proper practice with regard to parties printed cases was explained in some detail by my noble and learned friend Lord Diplock in M.V. Yorke Motors v. Edwards  1 W.L.R. 444. As it appears that that practice is either not understood, or is disregarded, by some of those who draft printed cases it may be well that I should repeat here two paragraphs from my noble and learned friend's speech at p. 446H - 447F:
"It should be borne in mind that the members of the Appellate Committee will have also read the judgments in the courts below. The case should, accordingly, start with a statement of what the party conceives to be the issues that arise on the appeal. In an appeal to this House, these are generally questions of law or (as in the instant case) of the exercise of a judicial discretion, although occasionally a party may want to challenge a finding of fact. . . . The case should set out the heads, but no more than the heads, of the argument upon each of the issues which it is intended should be advanced by counsel for the party at the oral hearing to challenge or support, as the case may be, the decision on that issue of the court from which the appeal is brought. Detailed or elaborate argument adds unnecessarily to the costs of preparing the case and is seldom helpful or time-saving at the oral hearing. Reference to authorities relied upon in support of the argument on any issue should be limited to key authorities (seldom numbering more than one or two on any one issue) which lay down the principle which it is contended is applicable, and the particular passage or passages in the judgments in which the principle is stated should be identified and, unless unduly lengthy, may helpfully be quoted verbatim. But references to numerous other cases in which that principle has been previously applied by courts to particular facts which it is claimed may be regarded as presenting some analogies to the facts of the case under appeal are usually out of place in the written case and, I may add, more often than not turn out to be time-wasting in oral argument also. . . ."
I hope that the proper practice will be observed in the future.
For these reasons I would dismiss the appeal.
I have had the benefit of reading, in advance, the speech delivered by my noble and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the reasons which he gives I would dismiss the appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it and for the reasons which he gives I would dismiss the appeal.
Having had the advantage of reading the speech prepared by my noble and learned friend, Lord Fraser of Tullybelton, I restrict myself to saying that I am in entire agreement with it. I would therefore dismiss the appeal.
For the reasons given in the speech of my noble and learned friend Lord Fraser of Tullybelton, with which I agree, I would dismiss this appeal.
I add a word of my own only to emphasise that in this appeal we are stating no new principle of law but only re-stating a principle which has been well settled for a very long time.
In Charles Osenton & Co. v. Jston  A.C. 130, Viscount Simon L.C. said, at p. 138:
"The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified."
I am particularly glad that my noble and learned friend's speech cites the admirable and perhaps insufficiently well known passage from the judgment of Asquith L.J. in Bellenden (formerly Satterthwaite v. Satterthwaite  1 All E.R. 343, 345, which explains in such lucid terms the underlying rationale of the appellate court's approach to discretionary decisions.
I may perhaps add that following the passage which my noble and learned friend cites from my own judgment in In re F. (A Minor) (Wardship: Appeal)  Fam. 238, 266, I went on to express the opinion that "the trial judge's weighing of the factors" was "clearly erroneous."
I am sure it is important to keep well in view the distinction, although a fine one, between grounds on which the court will allow an appeal from an exercise of a judicial discretion on the one hand and the more restricted grounds on which it will review the exercise of an administrative discretion on the other hand.
G (A.P.) (Appellant)
G (A.P.) (Respondent)
Die Jovis 25° Aprilis 1985
Upon Report from the Appellate Committee to whom was referred the Cause G against G, That the Committee had heard Counsel on Monday the 25th day of March last upon the Petition and Appeal of Teresa Concepta G of 38 Westbank Road, Burnage in the City of Manchester in the County of Greater Manchester praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 14th day of June 1984, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Christopher Valentine G lodged in answer to the said Appeal, and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 14th day of June 1984 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs of the Appellant and of the Respondent in respect of the said Appeal be taxed in accordance with Schedule 2 to the Legal Aid Act 1974.