G v G (Minors: Custody Appeal)

An appellate court reviews a discretionary welfare decision by the same principles that govern other judicial discretions. It may intervene where the judge acted on a wrong principle, considered irrelevant matters, omitted relevant matters, or reached a decision outside the generous ambit within which reasonable disagreement is possible.

The appellate court must not substitute its preferred balance merely because it would have decided differently. If it identifies a material error in the balancing exercise, it must substitute its own decision. Fresh evidence, including evidence of later events, is admitted at the appellate court’s discretion and may be rejected if it is unlikely to assist.

A mother appealed against an order awarding custody of the two children of her marriage to their father. The Manchester County Court found that the children were secure and well cared for in the father’s home, substantially because of the care provided by their adult half-sister. It directed reconsideration if she left that home.

The Court of Appeal, reported at (1984) 6 F.L.R. 70, affirmed the custody order and declined to receive a further welfare report and an affidavit about later access visits. The mother appealed with leave.

The central issues were the proper standard for appellate interference with a judge’s discretionary welfare decision and the circumstances in which an appellate court should admit additional evidence.

1. Appeal dismissed unanimously. Lord Fraser of Tullybelton delivered the leading speech. Lord Elwyn-Jones, Lord Diplock, Lord Edmund-Davies and Lord Bridge of Harwich agreed with it. The Court of Appeal had applied the correct principle and its order was affirmed.
2. Per Lord Fraser, appeals concerning children are not governed by special appellate rules merely because their welfare is the first and paramount consideration under the Guardianship of Minors Act 1971. Welfare decisions commonly admit more than one reasonable answer. The trial judge therefore has a discretion, and an appellate court must not interfere merely because it would have preferred another imperfect solution. The interest in ending litigation has particular force where continued uncertainty may disturb children.
3. The appellate court may intervene where the judge acted on a wrong principle, included an irrelevant matter, excluded a relevant matter, or erred in the balancing exercise so that the decision exceeded the generous ambit within which reasonable disagreement is possible. Descriptions such as “blatant error”, “clearly wrong” and “plainly wrong” express the same principle. This applied the approach in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All E.R. 343 and B v W (Wardship: Appeal) [1979] 1 W.L.R. 1041.
4. The stricter test used to review administrative discretion under Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is not the test for an appeal from a judicial discretion. A material error in the weight given to relevant factors can justify intervention. The trial judge’s advantage in seeing and hearing witnesses may limit the appellate court’s ability to identify such an error, depending on how materially the decision rested on that advantage. Once the decision is found wrong on the proper standard, the appellate court must substitute its own decision.
5. Additional evidence is admitted at the appellate court’s discretion. Evidence about events after the hearing is readily admitted, especially where children’s circumstances may change quickly, but the court may reject material unlikely to be useful. The further welfare report repeated an opinion already considered and rejected, while the affidavit about successful access visits added nothing significant. The Court of Appeal was entitled to refuse both.
6. The custody decision remained within the permissible ambit. The county court judge had assessed the father, mother and adult half-sister, addressed the possibility that the half-sister might leave, and directed reconsideration if she did. Avoiding immediate disruption to children who were secure and well cared for was an available welfare judgment. Lord Bridge emphasised that the House was restating a long-settled distinction between appellate review of judicial discretion and the narrower review of administrative discretion.

1. House of Lords: In G v G (Minors: Custody Appeal) [1985] UKHL 13, dismissed the mother’s appeal and affirmed the Court of Appeal’s order.
2. Court of Appeal: In (1984) 6 F.L.R. 70, affirmed the county court’s custody order and declined to receive the proposed additional evidence.
3. Manchester County Court: His Honour Judge Jalland awarded custody of the two children of the marriage to the father, subject to social services supervision and reconsideration if their adult half-sister left his home.