G v G (Minors: Custody Appeal)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Diplock,Lord Edmund-Davies,Lord Bridge of Harwich |
| Judgment Date | 25 April 1985 |
| Judgment citation (vLex) | [1985] UKHL J0425-1 |
| Date | 25 April 1985 |
| Court | House of Lords |
[1985] UKHL J0425-1
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Diplock
Lord Edmund-Davies
Lord Bridge of Harwich
House of Lords
My Lords,
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 18½ years at the date of the hearing in the county court and is now aged about 19½ 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. 72:
"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 J 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...
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