B & H (Children), Re

The Court of Appeal’s jurisdiction is limited to appeals from a judgment or order of the High Court. An adverse factual finding alone is not appealable, even by a party, unless it forms the basis of an adverse order or is embodied in a distinct declaration. A person affected only indirectly by findings cannot create an appeal by being made an intervener. Any later disciplinary, professional or criminal proceedings must determine the issues afresh, with Article 6 and natural justice directly engaged at that stage.

Public law proceedings concerned two children, their parents and Bath and North East Somerset District Council. Allegations by a social worker, Ms Ohlsen, against the team manager, Mrs Lynda Barnes, led the High Court judge to treat both as interveners and to make extensive adverse findings against Mrs Barnes while making substantive orders concerning the children, parents and local authority.

Mrs Barnes sought permission to appeal the findings, not the orders. The respondents did not appear. The issues were whether the Court of Appeal had jurisdiction in the absence of an order or declaration affecting her, and whether the process engaged Article 6 or natural justice.

Application refused. Lord Justice Lloyd held that the Court of Appeal has statutory jurisdiction under section 16(1) of the Supreme Court Act 1981 to hear appeals from judgments or orders of the High Court.

1. Even a party cannot appeal against an adverse finding of fact unless the finding forms part of the basis of an adverse order or is the subject of a distinct declaration. Lake v Lake [1955] P 336 illustrated that principle.
2. The absence of a formal order is not invariably fatal. A declaration may embody the relevant finding, and an implicit order may arise from findings made at the fact-finding stage of public law proceedings. Those exceptional circumstances were identified in Compagnie Noga v Australia and New Zealand Banking Group [2003] 1 WLR 307 and Re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790. Mrs Barnes’s status as an intervener and her indirect prejudice did not amount to an appealable order.
3. The findings did not directly determine Mrs Barnes’s civil rights or obligations, nor did they determine a criminal charge. Article 6 therefore did not provide an appeal route. Any later disciplinary, professional or criminal proceedings would engage Article 6 and natural justice directly. The findings would form part of the history but would not bind the later tribunal or court, and the facts would require reinvestigation. Hollington v Hewthorn [1943] KB 587 was cited by way of comparison.
4. Lord Justice Thorpe agreed with Lord Justice Lloyd and added that, in any event, the judge had acted carefully by permitting separate representation, controlling the dispute between the social workers, and giving a detailed credibility assessment. He saw no sufficient breach of natural justice on the merits.

• Court of Appeal (Civil Division): Mrs Barnes’s application for permission to appeal the adverse findings was refused: [2009] EWCA Civ 228.
• High Court of Justice, Family Division: HHJ Barclay made findings adverse to Mrs Barnes in public law proceedings and made substantive orders concerning the children, parents and local authority. No order adversely affecting Mrs Barnes was made.