M (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur Dbe,Lord Justice Underhill,Lord Justice Longmore |
| Judgment Date | 04 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1170 |
| Docket Number | Case No: B4/2013/0851 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 October 2013 |
[2013] EWCA Civ 1170
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Underhill
and
The Right Honourable Lady Justice Macur Dbe
Case No: B4/2013/0851
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Swansea Justice Centre
Mr Recorder Felstead
UV12C00215
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Charles Geekie QC & Miss Lucy Leader (instructed by City and County of Swansea & T Llewellyn Solicitors) for the Applicant
Ms Ruth Henke QC & Ms Sara Rudman (instructed by Goldstones Solicitors) for the Respondent
Hearing date : 17 September 2013
Approved Judgment
This appeal was launched with the permission of the single judge following renewed oral application made on behalf of CCS, a local authority and the Children's Guardian of R and K (minors), both represented by Mr Geekie QC. Directions were given which included invitation to the intervener to appear and be represented in the appeal.
In broad terms, the proposed grounds of appeal attacked the refusal of the first instance judge, Mr Recorder Felstead, to make findings against the intervener, J, in relation to incidents of sexual abuse alleged by the child K or to categorise admitted behaviours as having sinister sexual overtones or abusive connotation.
The mother supported the appeal but was unrepresented. She has not appeared today. Miss Henke QC has argued the case on behalf of the intervener, J.
The appellants do not seek to set aside the order made in the court below. The outcome achieved was entirely in accordance with their final submissions. The recorder made a residence order in favour of the mother with a twelve month supervision order in favour of CCS.
Having read the appeal bundles, including skeleton arguments filed on behalf of appellants and intervener, this Court notified Counsel that it wished to be addressed on the preliminary issue of jurisdiction, namely whether the negative findings of the recorder were capable of valid appeal process, they not founding nor comprising a final order of the court below.
We heard argument on this preliminary point and determined at the outset that the appeal should not be allowed to proceed since success or otherwise would have no impact upon outcome. Consequently we dismissed the appeal indicating that reasons would follow in judgment to be handed down.
This was an appeal from the County Court. Section 77 of the County Courts Act 1984 provides that:
"Subject to the provisions of this section and the following provisions of this Act, if any party to any proceedings in a county court is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by the Civil Procedure Rules."
The relevant Civil Procedures Rule is CPR 52.10(2) which provides that the appeal court has power to,
"(a) affirm, set aside or vary any order or judgment made or given by the lower court;
(b) Refer any claim or issue for determination by the lower court;
(c) order a new trial or hearing;
………
Mr Geekie QC argues that, as a matter of principle, the determination of the court below, (or " judgment or order of the High Court" if the appeal proceeded from the High Court and was subject to Section 16 of the Senior Courts Act 1981) must include those findings of fact which are not crucial to outcome of proceedings or the form or enforceability of final order, particularly if they interfere with reputation and rights of others incapable of redress elsewhere. He concedes that nevertheless the appellate court retains the discretion to refuse to entertain an appeal which may reasonably be regarded as academic.
He seeks to bolster his argument by factual example quite removed from the facts of this case. That is, findings against an individual accused of sexual assault against his neighbour's children with far reaching implications for his personal reputation and family life. Granted intervener status but with no interest in outcome he, personally, is incapable of overturning the finding however adverse the consequences, unless the terms "determination", "judgment" or "order" incorporates all findings of fact.
Miss Henke QC argues that there is no jurisdiction to entertain an appeal relating to findings of fact, save those made in a split hearing which will inform/ be determinative of the result of the proceedings albeit not incorporated in a formal order. The Court of Appeal would then have jurisdiction to hear an appeal without waiting for the conclusion of the split hearing. See Re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790.
Both cite Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd and others [2002] EWCA 1142, [2003] 1 WLR 307 to support their respective arguments.
Miss Henke relies the judgment of Waller LJ at paragraphs 27 and 28:
" Lake v Lake [citation [1955] P 366] properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would-be appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal…..The court only has jurisdiction to entertain "an appeal". A loser in relation to a "judgment" or "order" or "determination" has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try….is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply because it is not one he or she does not like." ;
"There is no difficulty where the only issue to be decided at a preliminary stage is one of fact. It is that issue on which the court has been asked to pronounce judgment and, even if the court exercises its power to give judgment against a party on the whole of the case, since that was the issue the court was...
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