Custody Appeals

Publication Date01 Nov 1985
AuthorJohn Eekelaar
DOIhttp://doi.org/10.1111/j.1468-2230.1985.tb00871.x
NOTES
OF
CASES
CUSTODY APPEALS
LAST year it was noted in this journal’ that the Court of Appeal
was following an inconsistent line in regard to its power to review
custody decisions under appeal before it. The House of Lords has
now attempted to resolve the problem. Briefly, the dispute in
G.
v.
G.*
was over two children, aged seven and five, whose custody had
been awarded to the father, largely, it seems, on the basis of the
favourable view taken by the judge of the father’s 18-year-old
daughter from a previous marriage, who was devoted to the
younger children. In the Court of Appeal, Sir John Arnold
P.
tried
to reconcile the earlier dicta by distinguishing between the
result
of
the case and the
method
by which it had been reached.
To
justify
appellate reversal, it was not enough that the higher court would
simply have reached a different result. It must believe that the
result was
so
wrong that “there must have been an error of
meth~d.”~ Essentially, the House of Lords upheld this view,
but the reasoning is lacking in clarity and is susceptible of
misinterpretation. It is important that this should not happen.
Lord Fraser of Tullybelton dismissed the suggestion that custody
appeals were subject to “any special rules” but nevertheless
indicated that there were considerations present which required
particular emphasis. There could never be a “right answer” in such
cases because of their peculiar difficulty, and for that reason there
might often be “two or more possible decisions,” any of which
might be taken without being held wrong. Furthermore, in child
cases, the policy of terminating litigation was particularly strong
because its continuation prolonged their state
of
uncertainty.
Despite these strong inhibitors against appeals in custody cases,
situations requiring reversal by the Court of Appeal might arise.
The cases had used a variety of phrases (such as “blatant error,”
“clearly wrong,” “plainly wrong” or simply “wrong”) to indicate
when this might be done, but they all seemed, to his Lordship, to
emphasise the point that the appellate court “should only interfere
when it considers 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
po~sible.”~
It seems reasonable
to
suppose that the words italicised contain the kernel of the proper
test now propounded by the House, and will be freely cited. Yet
Lord Fraser expressly denied that this test was the same as that
(1984) 47
M.L.R.
593, 596.
*
[1985] 2
All
E.R.
225.
(1984) 6
F.L.R.
70,
73.
I19851 2
All
E.R.
225, 229 (italics supplied).
704

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