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Re M-H (Children) [2006] EWCA Civ 499

Court of Appeal guidance on appropriate form of order regarding findings of fact on a split trial.

Court of Appeal: Thorpe and Smith LJJ (9 March 2006)

Court of Appeal guidance on appropriate form of order regarding findings of fact on a split trial.

At a preliminary hearing, where it was necessary to determine whether the father had disregarded proper sexual boundaries in relation to his children aged 15 and six, the judge concluded that untoward sexual behaviour had occurred and a framework of supervision needed to be maintained, and recommended that the family seek some therapeutic treatment.

In considering the application for permission to appeal against that judgment, Wall LJ stated that the court would welcome assistance on the appropriate form of order where the court has made findings of fact, and posed the question whether the order should record in terms the findings made by the judge.

Held, granting permission to appeal but dismissing the appeal, that the judge's finding of inappropriate sexual boundaries was clearly justified by the evidence, and the judge had been careful to exclude statements by the child where he felt that the evidential standard had not been met.

On the procedural question raised by Wall LJ, the court considered that, in any case in which there was a split trial, as a general practice the order directing the preliminary trial should settle the issues that were to be determined. At the later stage, when the judge had heard the evidence and expressed his conclusion, the order to reflect that conclusion should refer back to the form of the issue settled for determination and make express finding on each of the paragraphs of the settled issue.

Furthermore, the formal practice of an issue settled by the court directing a preliminary trial, and a resultant order ruling on the issue as settled, was to be preferred, so that there was then a clear record as to the outcome of the preliminary trial. That would not be so much for the immediately succeeding second stage of the split trial but so that there was a record for the parties, for other disciplines who had to continue to work on the case and for others who might have to investigate and to retrieve the past, in relation to some future issue that may arise.

In this case, the order skilfully drawn by counsel had dealt with a range of points but gave absolutely no indication of what it was that the judge was trying out or what his conclusions on the issues were. That shortcoming would have been easily met by the more laborious but useful practice of a carefully settled issue for determination and an order that decided the issues set by the preliminary direction.

The court also gave guidance on the time for lodging a notice of appeal since, in this case, the notice had been filed marginally out of time: while the Civil Procedure Rules 1998 have been amended (with effect from 6 April 2006) to extend the period within which a notice of appeal must be lodged in the Court of Appeal from 14 to 21 days, this general extension may not always be appropriate for family appeals involving children, where time is so often of the essence. The judge in the lower court should have regard to the appropriate time-limit for the issue of any notice of appeal and, where the urgency of the case required it, the judge could specify 14 days or whatever shorter period he felt was appropriate.

Read the full text of the judgment here