Law, Discretion and Fact: Appeals in the Family Jurisdiction

David Burrows Solicitor and Advocate. The disposal by Baroness Hale of Richmond of an appeal from the Court of Appeal in Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 [2005] 2 FLR 802 illuminates perfectly the subject of appeals and discretionary jurisdiction subjects overlooked at their peril by all lawyers. The case concerned the summary return of a child to Saudi Arabia.

The Court of Appeal allowed the father's appeal on the ground that the judge had elevated his concern at the father's allegation above a level that the evidence justified. But said Baroness Hale of Richmond (with whom the other four lords unanimously agreed) the judge's findings related to:

credibility and primary fact with which for all the reasons explained by Lord Hoffman in [Piglowska v Piglowski [1999] 2 FLR 763 at 784] an appeal court is not entitled to interfere [and] once a judge has made such a finding it becomes a factor to be weighed in the balance in the exercise of his discretion" (at paras [9] and [10]).

Read the full article here.