T (Children), Re

In family appeals, the appellate court reviews the trial judge’s findings and evaluative decision. It must not substitute its own assessment of credibility, fact or expert evidence merely because another conclusion might be possible. Intervention is justified only for a manifest error, including a conclusion that was not open to the judge on the evidence available at trial. The assessment must be made without hindsight. A litigant’s subjective distress or inability to accept adverse findings does not, by itself, justify permission to appeal. Difficulties arising after the order should ordinarily be addressed by the trial judge where arrangements have been listed for review.

The parents’ disputes concerning their two children had involved proceedings in Spain, Gibraltar, proceedings under the 1988 Convention and wardship proceedings in England. After a four-day hearing, Johnson J made findings rejecting the father’s allegations concerning the mother’s alcohol consumption and criticising his attempts to involve the elder child in his case. Having considered the evidence of an expert and the Official Solicitor’s recommendation, he ordered that the children move from the father’s care to the mother’s care.

The father, acting in person, sought permission to appeal. He argued that the judge was plainly wrong and had adopted the order for an improper purpose. The central issue was whether the judge’s conclusions were open to him on the evidence and whether the Court of Appeal could properly interfere.

1. Application refused. The Court of Appeal refused permission to appeal against Johnson J’s order.
2. The trial judge had the responsibility for assessing credibility, factual evidence, reliability and expert opinion. Johnson J had heard the evidence over four days, observed the parents, considered the expert evidence and explained his conclusions with conscientious care.
3. The appellate court is a court of review. It has neither the function nor the right to substitute its own opinion or discretion for that of the trial judge. Its function is confined to correcting manifest errors. Permission should not be granted merely because a party finds the findings harsh or subjectively cannot accept them, since that would undermine the trial process by which difficult family disputes are resolved.
4. The relevant question is whether the conclusions were open to the trial judge on the evidence and assessments available on the date of judgment. The possibility that later events might show the decision to have been right or wrong, and the benefit of hindsight, are irrelevant to that review. The father demonstrated no such error, and the judgment gave no indication that the order was motivated by an improper desire to deprive him of any benefit from removing the children from Spain.
5. Post-judgment difficulties concerning implementation did not justify permission. Those matters had been listed for early review before the trial judge, who was the appropriate judge to address them.

• Court of Appeal (Civil Division): On 13 March 2001, Lord Justice Thorpe refused the father’s application for permission to appeal.
• High Court: Johnson J delivered judgment in Norwich on 23 February 2001 after a four-day hearing and made the care and disposal order challenged in the application.
• The judgment records earlier substantive Court of Appeal proceedings in April 2000 and further applications, but gives no citation or disposition for those earlier stages.