L (A Child)

The parties to this appeal are the parents of a 12 year-old daughter named L. The relationship between the appellant father and L is non-existent, or virtually non-existent. He has not seen her since she was a baby, and she has been brought up by her mother and her mother’s husband, who is effectively L’s psychological father. Of course, L is aware of the fact that she is not the child of her stepfather and is aware of the existence of her biological father. In May 2007 Bennett J made a formal residence order to L’s mother and directed indirect contact between the appellant and L. The regime laid down by Bennett J endured, but in November 2011 the appellant, acting in person, launched a contact order application. He instructed a firm of solicitors, Messrs Wannops, and on 12 June they obtained public funding for a three-day trial, to commence on 14 August 2012. The relationship between the appellant and Messrs Wannops is now under some scrutiny, since privilege has been waived and the solicitor/client correspondence and communication is open to inspection. It seems that things went relatively smoothly until Monday, 6 August, with the trial about seven days away. That no doubt was in itself a considerable stress factor for the appellant. He received a communication from his daughter during the course of that final week. It led him to decide that for her sake he would not pursue his application. It was his intention to withdraw on the basis that the existing order remained in force.

There were then exchanges between solicitors, and it emerged that a price would be extracted for his withdrawal, namely the imposition of an order under section 91(14). So there followed a period of vacillation, when the appellant changed his mind about withdrawal and then changed again and then changed again, at one stage signing written instructions to withdraw but ultimately instructing his solicitors that he wished to proceed.

There was also a good deal of tension between the appellant and Wannops as to whether a report should be obtained from an expert consultant psychiatrist, Dr Bowskill, who the appellant had consulted for an opinion in May 2012 with the intention of protecting himself against the content of a Cafcass report then current. However, that report was subsequently withdrawn and a report sought from another Cafcass Officer, as a result of which the appellant was minded to, as it were, consign Dr Bowskill to the archive on the basis that he no longer required that protection. Things were becoming increasingly fraught as the week proceeded and there were heated and contradictory communications on 9 August, culminating in further dissention on 10 August which led Wannops to inform the appellant that they were no longer prepared to act for him and would be inclined to take themselves from the record. We know that a letter to that effect was dispatched as an attachment to an email by Wannops to the appellant at, I think, 16.30 on the afternoon of 10 August. And from another attendance note we can date the telephone communication of their decision not to continue to the hour 14.00 to 15.00. The letter informing the appellant that Wannops would no longer act was of course not received by him until Monday, the eve of the trial, but he in a sense was unprejudiced because he had had clear oral notice, as I have said, on the afternoon of the 10^th. And his reaction to what he took to be a betrayal was completely immoderate, expressed in a series of disgraceful emails that he addressed to the individual at Wannops through the course of Friday evening. The only thing that can be said in the appellant’s favour is that he subsequently apologised for the emails and their content.

So it seems that the trial bundles were delivered to his house by Wannops on the morning of Monday, 13 August. He did not receive them because he had left to remove from the south coast to Basingstoke in readiness for the case on the 14^th. On the 14^th we have a transcript revealing a member of the Bar, Mr Pugh, acting for Wannops and advancing the application to come off the record. We see Mr LL’s reaction, which was essentially to emphasise to the judge that although he was not wedded to Wannops he was absolutely wedded to representation. He had his certificate. He had been advised that it was transferable on 24 hours’ notice, and he absolutely felt inadequate to present his own case. He applied for an adjournment. He did in the course of his oral submission say that he had the expert view of Dr Bowskill that he was not fit to present his case. Nothing in writing; all he could say was that he had had a conversation with Dr Bowskill, who had expressed that view and had given an oral diagnosis.

The judge reminded himself that within the history the appellant had represented himself with apparent skill and economy and had been complimented by HHJ Compston for his ability. And so the judge decided that there should be no adjournment and that the case must proceed. The rest of the day was spent on collaboration between the appellant and Mr Beresford Kennedy, who has below and in this court represented the respondent well. So there he spent the afternoon compressing three trial bundles into one. When the case resumed on the following day the appellant again sought an adjournment, which was again refused. The case proceeded, and the judge imposed a comparatively extended prohibition on any future application without prior permission under the provisions of section 91(14) of the Children Act 1989.

Mr Maitland Jones had raised a number of criticisms in his skeleton argument, but in opening he accepted that he was making no criticism of Wannops. He criticised the judge, essentially for having forced the appellant into the role of unrepresented litigant, and that that was essentially a denial of justice; alternatively a breach of his right to a fair trial under Article 6 of the Human Rights Convention. Mr Kennedy for the respondent supported the judge throughout. It was, he submitted, a permissible exercise of a broad discretion in relation to the application advanced by Mr Pugh. The judge’s decision on that was well-supported by authority and particularly the decision of this court in UCB Bank Plc v Hedworth[2003] EWCA Civ 945.

In relation to the judge’s decision to proceed, Mr Kennedy relied upon the decision of this court in Re B and T [2001] 1 FLR 485. That authority prompted in me the erroneous recollection that the decision of this court had not found favour with the European Court of Human Rights. My Lord invited counsel to research over lunch, and that research showed that I was confusing the case of Re B and T with the case of P & Ors v United Kingdom[2002] 12 BHRC 615. The decision of the court in that case does lay down broad principles as to the application of Article 6(1), in circumstances where a disagreement between a litigant and the legal team provided under public funding arrangements led to the withdrawal of the lawyers from the case and to the subsequent refusal of the application to adjourn. The decision of the court is, in my opinion, pertinent to the issue we have to decide. The distinctions drawn by Mr Kennedy are apt, but I am not satisfied that they are sufficient to, as it were, erode a point of principle. Put another way, it does seem to me that were the facts of the instant case to be considered by the European Court of Human Rights, there is a strong possibility that the general principles identified in P & Ors v UK would be held applicable.

I say that because we have admitted very significant fresh evidence. We have what the judge did not have, namely a letter from Dr Bowskill dated 6 September, in which he states shortly but pertinently:

I would not myself conclude that the judge’s decision on 14 August and 15 August fell without the very generous ambit of discretion given to a judge who has to balance on the one hand possible unfairness to the applicant, on the other hand unfairness to the respondent in granting the application, to which must be added the all-important welfare dimension taking into account the interests of the child. Finally, there is the general point of public importance that public funding resources need to be husbanded. A transfer from firm A to firm B usually involves wastage and therefore increase in the ultimate bill to the public purse. And always, there is the risk of delay inherent in granting any adjournment and the additional pressure on the limited resources of the court in filling the time vacated and finding matching time elsewhere. However, the importance of the fresh evidence must, in my judgment, be recognised. Had that information been available to the Recorder, had he had the letter of 6 September and even more the medico-legal report, he would have recognised that he had before him a vulnerable applicant, disadvantaged as a result of his disorder and one who in the opinion of an expert was simply not fit to litigate unrepresented. Accordingly, if he had available to him information available to this court, it is at the least arguable that he would have reached the contrary decision. Indeed, in my view had he had that material, the application required to be granted, at least to give the applicant a limited opportunity to ensure that the certificate was not lost, but transferred to an alternative firm, who would then simply have the relatively light task of picking up the trial from the point at which all the documentation had been prepared. And Mr Maitland Jones, who had only been stood down from his brief to represent on the 14^th, would have been available to be briefed on some other day.

The consequence of my decision is in some respects regrettable. It requires not just allowing the appeal but remitting the appellant’s application for trial de novo, and it may be that we need to consider where that trial should take place and before whom; plainly not the Recorder. I recognise that Mr Kennedy rightly emphasises the adverse impact this will have on the respondent, who has exhausted her litigation rights, but that is simply the price of ensuring that the appellant’s Article 6 rights are not breached.

I agree.

I also agree.