G v G (Minors: Custody Appeal)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,MR. JUSTICE SHELDON |
| Judgment Date | 14 June 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0614-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0262 |
| Date | 14 June 1984 |
[1984] EWCA Civ J0614-2
The President
(Sir John Arnold)
and
Mr. Justice Sheldon
84/0262
No of Matter 81 D 1444
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE JALLAND)
Royal Courts of Justice
MISS ELEANOR PLATT QC and MISS L. KUSHNER (instructed by Messrs. Ollier Wilner & Jones, Solicitors, Manchester M1 3AH) appeared on behalf of the Petitioner (Appellant)
MR. A. BLAKE (instructed by Messrs. Joan Ferguson & Co, Solicitors, Manchester M8 7LR) appeared on behalf of the Respondent (Respondent)
This is an appeal from a decision of His Honour Judge Jalland in the Manchester County Court. He had to deal with some of the children of a rather complicated family; he made his decision on 20th March of this year.
The children concerned fall into three groups. They were the children of one or other, or both, of Mr. and Mrs. Gregory. The two oldest children were Michelle and Christopher; they were the children of Mr. Gregory and his former wife, who is now deceased. Michelle is 18 and Christopher is going on 17.
The next group are three children, Elizabeth, John and Brian, who are the children of Mrs. Gregory and her late first husband. Elizabeth is 15; John in going on 14 and Brian, by a curious irony of fate, is 12 today.
The last group, Damien and Margaret, are the children of Mr. and Mrs. Gregory; Damien is now 7 years and 2 months and Margaret is about 5 1/2.
There was in fact, naturally enough, no issue concerning the custody of Michelle and Christopher, who were old enough to decide these matters for themselves, and there was no contest about the custody of Elizabeth, John and Brian; it was accepted by Mr. Gregory, and welcomed by Mrs. Gregory, that those children should live with her. The contest related to Damien and Margaret.
The marriage had continued, rather discontinuously, until the autumn of 1983. Then, Mrs. Gregory had left and moved away with Elizabeth, John and Brian in about the third week of September 1983. That left Mr. Gregory with his two older children and the two little ones, and the issue concerning the two little ones had not been resolved at all recently; in fact there had been, on an earlier blow-up in the family, a consent order on 15th July 1981 whereby Damien and Margaret, as well as Mrs. Gregory's three children, had been placed in her custody; but that was all earlier on.
It was a difficult case to try, because there were a number of considerations which had to come into the balancing exercise by which the judge had, with propriety, to decide the matter. There were two welfare reports, the first one on 30th November 1983 and the second one four days before the trial, on 16th March 1984. The latter was really intended to be limited to certain matters which emerged and which were in the end negatived as having any particular interest; but it was nonetheless an important document because the reporting officer took the opportunity, quite rightly, to bring up to date the matters which had been dealt with in the first report.
What is said on this appeal from the order of the learned judge giving the custody of Damien and Margaret to their father, is that the learned judge has given, by his demonstrated method, too much weight to certain matters and too little weight to certain other matters, and moreover that his conclusion was wrong, so that quite apart from those particular matters it could be shown, or with propriety deduced, that he must have gone wrong in the performance of the balancing exercise.
Before I come to the particular matters which are adduced in those three several respects, I desire to say a word about the method of trying these appeals. The cases, with which one is so familiar on these matters, have been cited before us: Re "F", (1976) Family Division, 238, in this court; D v. M, (1983) 4 Family Law Reports, 247, in this court; and the most recent of these cases, Clarke-Hunt v. Newcombe, (1983) 4 Family Law Reports, 482, in this court. 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?
It is again a discernible unanimity that if the court observes that a matter irrelevant to the decision has been taken into account in any decisive fashion by the court below in making its discretionary order, that will be set aside; similarly, if it emerges, from an observation of the reasons of the learned judge, that there has been left out of account a matter which is germane and proper to be taken into account in any decisive manner in making the discretionary decision, that too will be a cause of upset. It is when one gets beyond that that the difficulty appears to occur. It is the duty of the appellate court, as the cases say, to do justice—one does not doubt that—and if the court comes to the clear conclusion that the judge below was wrong, or if the court comes to the conclusion that the judge below was clearly wrong, or if the court comes to the conclusion that the judge below was plainly wrong, then, even though the exposition of the judge's thought processes has not thrown up either the omission of a relevant circumstance of a decisive nature, or the inclusion of an irrelevant circumstance in a decisive way, the appellate court can nevertheless come to the conclusion that because of this clear conclusion that the judge was wrong, or conclusion that the judge was plainly, or clearly, wrong, then the court is at liberty to overset the decision and either order a new trial or substitute its own conclusion as the case may seem to require.
But running all through this consideration of the different circumstances with which the appellate court has to deal is the word "wrong". What is it that "wrong" means, which is not, and cannot be, as is on all hands conceded, identical with "in a way different from that which the members of the appellate court would themselves have resolved the issue?" It is the answer to that question which provides the difficulty.
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 learned 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. With that, I hope comprehensible introduction, I come now to the particular matters of complaint.
The first of three matters of complaint is concerned with certain matters which were put into the scale adverse to the conception of giving custody to Mrs. Gregory. In relation to each one of these, it is said either that they were irrelevant or, I think more precisely, that in each case too much weight was given to them.
As I have said, they are three in number. The first one consists of a catalogue of misdoings which were laid at the door of the three children of Mrs. Gregory, who are living with her and who are the subject of a custody order to her and with whom, therefore, the small ones, Damien and Margaret, would be going to live if their custody were given to Mrs. Gregory. They are various in character and various in seriousness.
The judge treated them really as a parcel; he did not condescend himself upon the particular detail, thought that was advanced in the evidence. They were: breaking into cars; a minor sexual aberration on the part of the two boys; an instance of factory breaking; an attempt to steal a car and an attempt to steal a car radio. All those were laid at the door of the boys, not at the door of the second girl.
So far as she was concerned, it was really principally truancy which was levelled against her; there was some suggestion that she had a young man who was more than appropriately old for her, and that she was to be found in somewhat undesirable...
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