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The limits of an appeal by John Bolch

Today I thought I would expand upon the last point in my post yesterday, as I think it is an important point, often unknown or misunderstood by people wishing to launch appeals.

I explained then that when the judge who made the order has discretion as to what order he or she can make, then for any appeal to succeed it must be shown that that their decision was so plainly wrong as to be outside of the range of reasonable decisions they can make.

The authority for this goes back to a 1985 House of Lords case G v G, although the actual principle goes back much further.

G v G concerned an appeal by a mother against an order awarding custody of two of her children to their father. (The case was pre-Children Act 1989, so custody orders were still being made).

The mother had left the matrimonial home as a result of the father’s unreasonable behaviour. She took her own children by her previous marriage with her, but was prevented from taking the two children from her marriage to the father. She applied for custody, but the court ordered that the children should remain in the custody of their father.

The mother appealed against that decision, but the Court of Appeal upheld the order.

The mother then appealed again, to the House of Lords. It was argued on her behalf that the appeal court should exercise the same discretion as the judge in the lower court, balancing all of the factors in favour of and against each party. If the appeal court then reached a different conclusion from that of the lower court, then the appeal should be allowed.

The House of Lords did not accept this argument.

In a custody case there was no such thing as a ‘perfect solution’. Lord Fraser stated:

“…the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.”

In other words, appeals should only be allowed where the decision was “plainly wrong”. Examples of this are where a judge preferred the evidence of a lay person to that of an expert but failed to explain why, and where a court ordered staying contact without waiting for an assessment of a child who was disturbed after contact.

Lord Fraser reviewed the facts of the case and found that the judge was entitled to make the decision that he did. He actually agreed with the judge’s decision, but even if he had not, the decision could not have been said to have been “plainly wrong”.

Accordingly, the mother’s appeal was dismissed.

So, before rushing off an appeal, stop and think: am I just upset that the judge didn’t decide in my favour, or is their decision so wrong that no reasonable judge could have made it? More often than not, the answer will be the former.

And I will end by saying it again: always take expert legal advice before proceeding with an appeal.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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