M (Children)

A successful party cannot appeal merely against findings, or failures to make findings, which do not determine the proceedings or affect the final order. A factual finding is capable of appeal where the case ultimately turns upon it, as at a split hearing, or where it is properly made the subject of a declaration carrying legal consequences.

The inclusion of findings in the body of an order does not itself create appellate jurisdiction. A declaration intended to permit an appeal against a finding should be exceptional and made only after careful consideration of its consequences. An appeal which cannot affect the outcome and concerns no determination, judgment or legally consequential declaration is academic and should be dismissed.

A local authority and the Children’s Guardian appealed against a recorder’s refusal to find that an intervener had sexually abused a child or that admitted behaviour had a sinister sexual character. They did not challenge the residence and supervision orders, which accorded with their final submissions.

The Court of Appeal raised the preliminary question whether the recorder’s negative findings could be appealed when they neither founded nor comprised the operative order. A paragraph in the sealed order recorded the threshold findings and the absence of sexual misconduct. The central issue was whether that paragraph, or the underlying findings, constituted a determination, judgment, order or declaration capable of appeal.

1. Appeal dismissed unanimously without consideration of its merits. The appellants had obtained the final order they sought. Success on the proposed grounds could not alter that outcome, so the appeal was academic: per Macur LJ at [6], [29]–[31], Underhill and Longmore LJJ agreeing.

2. Under section 77 of the County Courts Act 1984, read with rule 52.10(2) of the Civil Procedure Rules, appellate jurisdiction concerns an appeal from a determination, judgment or order. Applying 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, findings of fact do not themselves constitute an appealable determination, judgment or order. The position differs where the whole case ultimately turns upon the factual issue, including a determinative split hearing, or where the finding is properly made the subject of a declaration within the order: at [15], [21].

3. The court’s jurisdiction cannot be enlarged by a discretionary review of unwelcome findings obtained by a successful party or concerning a third party against whom no enforceable order was made. Conversely, a discrete declaration of fact may be appealable even though it does not determine the outcome. The permissible scope of such declarations did not require decision: at [19]–[22].

4. Declarations included to provide a basis for appeal must be exceptional because of their implications for finality. They require careful judicial consideration of their consequences and effect: at [22]–[23]. Merely placing findings or non-findings in the body of an order does not convert them into an appealable order or declaration.

5. The recorder’s paragraph recording the threshold findings was otiose as an order and should instead have appeared as a recital. Even if classified as a declaration, it was not pregnant with legal consequences. The failure to establish allegations reflected insufficient evidential support and prejudiced no legal rights: per Macur LJ at [24]–[30] and Underhill LJ at [32].

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously on the preliminary issue of appellate jurisdiction, without consideration of its substantive merits: [2013] EWCA Civ 1170.

2. Swansea Justice Centre: Mr Recorder Felstead declined to make the disputed findings of sexual abuse or sexual misconduct. He made a residence order in favour of the mother and a 12-month supervision order in favour of the local authority, in accordance with the appellants’ final submissions.