Clarke-Hunt v Newcombe: CA 1982

Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide which of the two was the least dangerous havng regard to the long term interests of the children, and so he decided the matter.
Whether I would have decided it in the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of dicretion, plainly got the wrong answer? I emphasise the word ‘plainly’. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.’


Cumming-Bruce LJ


[1982] 4 FLR 482


England and Wales


CitedBellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .

Cited by:

CitedIn Re P (Minors) (Contact) CA 15-May-1996
The father appealed an order refusing him direct contact with the child. The judge had made the order because he considered that the mother’s hostility to contact made it likely that her health would suffer if contact was ordered, and that the . .
CitedRe W (Children), GW (The Father) Litigant in Person CA 26-Jul-2007
The father sought to appeal an order with respect to contact with his children, alleging ‘that the reasons he is not having contact with his children are a combination of maternal deceit, the deliberate alienation of the children from him by their . .
ApprovedG v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
CitedAM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
Lists of cited by and citing cases may be incomplete.


Updated: 07 May 2022; Ref: scu.241338