Clarification of terms used with respect to an Appeal
As I understand it m an appeal of a Judges decision can really only be on two grounds a)That the discretion applied was incorrect, unjust or unfair or that is clearly? wrong b)That the judge made an error in law
As I understand it m an appeal of a Judges decision can really only be on two grounds
a) That the discretion applied was incorrect, unjust or unfair or that is clearly? wrong
b) That the judge made an error in law
Can I ask for some clarification for this using as a hypothetical example, say that a report was issued or a comment was made by a creditable expert that raised some concern for the child of harm occuring to that child
a) If the judge made note of this concern and chose to ignore it, that an exercise of the judges discretion.
b) If the judge did not make note or discussion of it in the reasons for Judgement, this is could be argued as an error in law because the judge is required to act in the best interests of the child etc
Is this correct?
I also understand that simply because another court would have made a different finding cannot be the grounds for an appeal against a judges discretion. However there must be a limitation on how far a Judge can go away from what is normal practice to obtain a finding, there must be some limitation upon the power of a Judge to apply that discretion otherwise we have effectively a tyranny within the court room in which the judge can do whatever they will under the guise of discretion regardless of the scope. (eg use the legal fiction of a family court case and then deal with matters that aren't normally the scope of the family court). If for example, there are 5 cases of dealing with similar matters produced showing these judges all used a similar approach to resolution of the mater and made their respective findings and that the procedure used was that laid out in the Practice Directions, could it be argued that the judge is obliged to follow custom and that to go drastically outside this custom (ie for example not having an application in front of the court or not using a Family Consultant) is an incorrect use of discretion. i.e not challenging that the courts would have made a different finding but that the courts followed the same procedure to reach their particular decisions (regardless of whether the results were similar or note and also with the implication the the procedures used had been determined to be Best Practice of the Best Interests of the Child). Would this also need to have the proviso to it that the use of this discretion result in a lack of justice and fairness to one of the parties of the proceedings as well