FA-2025-000247 - [2025] EWHC 2437 (Fam)

The law is clear as to the boundaries within which the appellate court will operate when determining an appeal from the first instance court.

Pursuant to FPR r30.12(3) the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings.

As has been noted repeatedly in cases concerning the welfare of children, the lower court has a broad discretion when determining an issue by reference to the welfare checklist set out in s.1 of the Children Act 1989 (hereafter “the 1989 Act”). Whilst, where the decision of the judge exceeds the generous ambit within which a reasonable disagreement is possible, the appellate court may conclude that the decision is wrong, as noted in G v G [1985] 1 WLR 647 per Lord Fraser, there are sound reasons for the appellate court respecting the wide discretion afforded to the judge at first instance:

“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.”

This seminal passage in G v G has resonated in later authorities examining the proper approach of the appellate court, including in cases concerning the welfare of children.

In Piglowska v Piglowski [1999] 1 WLR 1960, Lord Hoffman held as follows at [1372-3]:

“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

The importance of upholding judicial discretion was also emphasised by Baroness Hale in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at §12:

“In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter.”

In Re S [2007] EWCA Civ 54, [2007] 1 FLR 819 the Court of Appeal again emphasised 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.”

In the foregoing circumstances, the appellate court should adopt a cautious approach before interfering with findings of fact properly made and of the trial judge’s evaluations (Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, [2014] ETMR 26 at [114] and [115]). It is not sufficient for the appellant to demonstrate that a different court could or would have come to a different decision in its exercise of discretion. As set out by Lord Neuberger in Re B (A Child)(Care Proceedings: Appeal) [2013] UKSC 33, [2013] 1 WLR 1911 at [91], it must be demonstrated that the judge was “wrong”.

In this case, central to Ground 1 of the father’s grounds of appeal is that the Recorder failed to give any good reasons for departing from the conclusions of the FCA as to what was in the children’s best interests. In this context, in departing from the reasons of the FCA, the authorities make clear that the judge is required to provide reasons for why the welfare recommendation made by the FCA has been departed from (W v W (A Minor: Custody Appeal) [1988] 2 FLR 505).

The reasons provided for departing from the recommendation of the FCA should be clear and adequate reasons. In Re J (Residence: Expert Evidence) [2001] 2 FCR 44, Hale LJ (as she then was) made clear:

“It is of course well-established that, if there are professional witnesses who have been asked to advise the court by way of a section 7 report, the court should at least do those witnesses the courtesy of explaining clearly the reasons for departing from their recommendations (although it has always been acknowledged that the court has the power to do that).”

In Re M (A Child) [2017] EWCA Civ 2356, in which the Court of Appeal overturned a first instance decision for a mother to relocate to Colombia on the basis that the judgment had not been adequately well reasoned and there was no explanation for departing from the Cafcass recommendation, Peter Jackson LJ concluded that

“In a decision of this importance, the judge did not really reason her decision at all, nor faced with a sophisticated Cafcass evaluation did she give any adequate explanation for disagreeing with it”.

Finally, with respect to the treatment of the wishes and feelings of the children, which is the subject of Ground 2 of the grounds of appeal, in P-S (Children) [2013] EWCA Civ 223, [2013] 1 WLR 3831 at [43], the Court of Appeal stated:

“The checklist sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive.”

As announced at the conclusion of the appeal hearing, I am satisfied that the father’s appeal must be dismissed on all grounds. My reasons for so deciding are as follows.