FA-2025-000111 - [2025] EWHC 2756 (Fam)

The law on appeal

An appeal operates by way of a review of the decision of the lower court: FPR 30.12(1).

By FPR 30.12(3) an appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity.

The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which "exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong": G v G (Minors: Custody Appeal) [1985] 2 FLR 894. Per Lord Fraser at p.898:

"The reason for the limited role of the Court of Appeal in custody cases is not that appeals in such cases are subject to special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases therefore the judge has a discretion and they are cases to which the observations of Asquith L.J., in Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All E.R. 343 apply. My attention was called to that case by my noble and learned friend Lord Bridge of Harwich, after the hearing in this appeal. That was an appeal against an order for maintenance payable to a divorced wife. Asquith L.J. said, at p. 345:

"It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."

I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty."

In Re S [2007] EWCA Civ 54, the Court of Appeal reiterated the need to respect judicial discretion as to the best order for meeting the child's needs when arrived at after careful reference to the welfare checklist, Wall LJ (as he then was) holding at [48] that:

"Provided the judge has carefully examined the facts, made appropriate findings in relation to them and applied the welfare check-lists contained in section 1(3) of the 1989 Act and section 1 of the 2002 Act, it is unlikely that this court will be able properly to interfere with the exercise of judicial discretion, particularly in a finely balanced case."

More recently, Lewison LJ at para 2 of Volpi and Ors v Volpi [2022] EWCA Civ 464 put it this way:

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."

The cautious approach to be adopted before interfering with findings of fact applies similarly to the evaluation of those facts and inferences drawn from them: Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, at paras114 to 115.

Part of M’s case is that the judge departed from the recommendations of the Cafcass Officer in respect of the name change and the non molestation order. A judge is not bound to follow the recommendation of the Cafcass Officer slavishly, but, if departing from the recommendation, should explain why: (W v W (A Minor: Custody Appeal) [1988] 2 FLR 505).

The dicta in these cases in respect of the caution to be taken by an appellate court before interfering with an evaluation made by the court below in my judgment carry particular resonance in this case.