G v G (Minors: Custody Appeal)

The appellate court reviewing a judge's discretionary welfare decision should not substitute its own view merely because it would have reached a different conclusion. An appeal in a children’s welfare case succeeds only if the trial judge applied a wrong principle or if the decision was so plainly wrong that it lies outside the generous ambit of reasonable disagreement. Appellate courts have a discretion to admit fresh evidence, but they need not admit material unlikely to be useful, including repetitious welfare reports.

The appeal concerned custody of two young children following a county court decision awarding custody to their father. The mother appealed to the Court of Appeal, which affirmed the county court. Leave was granted to the House of Lords. The central questions were (1) the proper standard by which an appellate court should review a judge's discretionary decision about child welfare and (2) when an appellate court should admit additional evidence not before the trial judge. The House of Lords was asked to decide whether special appellate rules apply in child welfare cases and whether the Court of Appeal erred in refusing new welfare material and an affidavit.

1. Outcome: The appeal was dismissed. The House of Lords affirmed the Court of Appeal's decision (per Lord Fraser of Tullybelton). All other Law Lords agreed with Lord Fraser's reasoning and outcome.
2. Standard of review: Per Lord Fraser, there are no special appellate rules for children cases. Ordinary principles governing review of discretionary decisions apply. An appellate court may only interfere where the trial judge exercised the discretion upon a wrong principle or reached a conclusion so plainly wrong that it falls outside the generous ambit of reasonable disagreement. The House relied on earlier authorities to illustrate this standard, including Bellenden (formerly Satterthwaite), In re F., and B. v. W., and rejected a Wednesbury-style test as inappropriate for judicial discretion of this kind.
3. Application to facts: The trial judge had seen and heard the witnesses and formed a strong, permissible view about the important role of an elder sibling in the children's care. The Court of Appeal was entitled to leave that finding undisturbed. The House accepted that the judge had provided for the contingency of the elder sibling leaving, and that his balancing of risks and benefits lay within the ambit of reasonable disagreement.
4. Admission of fresh evidence: The appellate court has a discretion to admit additional evidence, particularly material relating to events after trial. That discretion is to be exercised pragmatically. The Court of Appeal did not err in refusing to receive a further welfare report and the mother's affidavit where the welfare report merely repeated earlier views rejected by the judge and the affidavit added little of value.
5. Practical guidance: Appellate courts should be cautious about substituting their own assessments for those of trial judges who have seen witnesses. They may admit fresh evidence if it is likely to be useful; routine or repetitious material may properly be excluded. The House expressed concern about over-lengthy printed cases and urged concise written submissions.
6. Order: Appeal dismissed; costs taxed in accordance with Legal Aid Act 1974, Schedule 2.

• Court of Appeal: Appeal from Manchester County Court, judgment given 14 June 1984, affirmed (reported (1984) 6 F.L.R. 70).
• House of Lords: Appeal heard and dismissed 25 April 1985; order of the Court of Appeal affirmed.