P (A Child: Fair Hearing)

Rule 52.21(3)(b) of the Civil Procedure Rules 1998 provides that an appeal court will allow an appeal where the decision of the lower court was unjust because of a serious procedural or other irregularity in the proceedings in the lower court. In this case the appellant mother argues that the Family Court should not have continued a hearing and made a placement order permitting the adoption of her child but should instead have adjourned to allow her to obtain legal representation after her lawyers had withdrawn at an advanced stage of the hearing.

The subject of the proceedings is C, a girl born in October 2021. When she was a day old, her local authority issued care proceedings and she was placed in foster care, where she remains. After assessments were carried out, an application for a placement order was issued in May 2022. The proceedings were listed for a five-day final hearing starting on 24 October 2022.

C is her parents’ only child, but between them they have nine others. Of her mother’s four older children, one lives with a relative under a special guardianship order, two are in foster care, and one has been adopted. The father has five older children from relationships with two women, one being the mother’s older sister; both have accused him of violence towards them.

In 2015, in proceedings concerning her fourth child, the mother was assessed by a clinical psychologist as having a learning disability and a Full-Scale IQ of 63 (1^st percentile). In the present proceedings, directions were given in July 2022 on the basis that she was to be regarded as a vulnerable individual. She accordingly had the assistance of a lay advocate at the final hearing.

The father has a substantial criminal history dating back to 1998 for theft, robbery, burglary, violence, criminal damage, possession of cannabis, and driving offences, and has served a number of prison sentences. During the present proceedings, a psychological assessment considered that he would be likely to meet the threshold for a diagnosis of psychopathy.

The final version of the local authority’s threshold statement asserted that if C was in her parents’ care she would be at risk of emotional and physical harm and neglect in the following ways:

The threshold document was a substantial one, extending to six pages, closely referenced to the extensive evidence. A large part of it concerned violence and abuse perpetrated by the father against the mother. Because it became relevant to what occurred at the trial, I set out the pleading of that allegation in full:

There was therefore a substantial body of evidence that for at least three years the mother, a person with a learning disability, had been the victim of severe violence and abuse and that she had been unwilling or unable to separate from the father. At trial the parents presented as a cohabiting couple wishing to parent C together. They denied any domestic violence between themselves, or between the father and his previous partners.

A number of assessments were available to the court, including a pre-birth assessment from an independent social worker, a psychiatric assessment of the father, a psychological assessment of both parents, an independent social work assessment of both parents, and hair strand testing for drugs. There were also assessments of each parent from previous proceedings. Evidence was filed by the social worker, the parents and the Guardian. There was a mass of material from the police and other agencies.

To understand the origin of this appeal, it is necessary to focus in on the allegation that the parents had separated in March 2022. The independent social worker’s statement in April 2022 contained these passages:

The final hearing was conducted by Recorder Arthur. At the start of the week, all parties were legally represented in the usual way. The social worker and the independent social worker gave evidence and were cross-examined. The psychiatric and psychological assessments were not challenged and their authors were not questioned.

The father’s behaviour throughout the hearing troubled the Recorder, who described it in this way:

On the Wednesday the mother gave evidence. During her cross-examination by counsel for the local authority (not counsel appearing before us), she said that she did not remember separating from the father in March 2022, or alleging domestic violence and asking professionals (including the social worker’s team manager and her own solicitor) for assistance in fleeing from him and protecting herself at that time.

On the Thursday morning, when the mother was coming to the end of her cross-examination, counsel for the local authority applied for permission to question her about an email sent by her solicitor to the local authority solicitor on 8 March 2022. The email was not among the 2147 pages of evidence already before the court. It read:

Although the mother was in the middle of giving her evidence, the Recorder allowed her to speak to her counsel so that she could give instructions on the local authority’s application. When the hearing resumed, both counsel for the parents opposed the admission of the email, while counsel for the Guardian (again not counsel before us) supported it. The Recorder admitted the correspondence. In her later judgment she explained:

Following the Recorder’s ruling, the mother’s barrister and solicitor withdrew due to professional embarrassment, leaving the mother unrepresented in the witness box, although her lay advocate remained. The mother briefly concluded her evidence, during which she stated that her solicitor had invented the content of the email. The court than took an extended lunch break to allow the parties to consider whether the hearing could continue with the mother unrepresented. In the afternoon, the mother applied for an adjournment.

The Recorder related what ensued:

During the hearing the mother, acting in person as she was, did not seek to appeal from the refusal of an adjournment.

As a result of the time taken on this issue, the Recorder’s decision on the applications for care and placement orders could not be given within the hearing window, and judgment was reserved until 21 November 2022, when a two-hour hearing was fixed for the making of final orders.

During the hearing of the appeal, we asked how the mother gained her present legal representation. We were told that efforts were made on her behalf during the midday break on the Thursday of the hearing to find replacement solicitors. A number were identified but none could attend there and then, and the formalities of a transfer of legal aid needed to be completed. In the event, the mother’s present solicitors obtained a transfer of the certificate on 4 November 2022. However, they took no steps before the date fixed for the handing down of judgment, except to instruct Mr Day a few days beforehand. No application was issued, nor were the court or the other parties given prior notice that the mother was once again represented.

The Recorder handed down her judgment on 21 November 2022 by sending it electronically to the parties an hour before the hearing. In it, she determined that a placement order should be made for all the reasons given by the local authority. She explained why C could not be placed with her parents:

In relation to domestic abuse she had earlier concluded:

The only other passage that I would cite is one that refers critically to the mother’s closing submissions:

Returning to the hearing on 21 November 2022, the mother’s new representatives appeared when the court convened, and Mr Day made an oral application, unsupported by any documentation, for the court to reopen its decision. The application was put on alternative bases: a complete rehearing before another judge; a complete rehearing before the Recorder; or a resumption of the hearing from the point when the mother’s representatives withdrew. It was further suggested that there should be an intermediary assessment, but the Recorder rightly regarded that as a matter that could only arise if the hearing was reopened and there is no appeal in that respect.

Although the matter came before her without procedural formality and clarity, the Recorder entertained counsel’s submissions and responses from the other parties, and she reserved her judgment in respect of the reopening application until 1 December 2022. In that judgment she showed an astute awareness of whether the oral application was procedurally proper:

The Recorder gave a further judgment on 1 December 2022 in which she refused to reopen the hearing. She affirmed her main judgment and made care and placement orders.

As can be seen above, the Recorder’s essential reasoning was that:

In her second judgment, the Recorder reviewed the main authorities on adjournments in family proceedings in some detail. From them she concluded:

The mother applied for permission to appeal from the order of 1 December 2022 and this was granted by Baker LJ on 3 February 2023.

On behalf of the mother, Mr Day and Mr Krumins argued that the Recorder’s refusal of an adjournment did not have the hallmarks of fairness and constituted a stark breach of her Article 6 rights. In the balancing exercise, the Recorder failed to take adequate account of the impact on the mother of being unrepresented in such a serious case. This was compounded by the mother’s learning disabilities, and there was a breach of Article 14 because allowances were not made for them. The application to reopen the final hearing gave the court an opportunity to mitigate the unfairness which arose from its own decision to admit the email.

Mr Day submitted that the Recorder was wrong to find that the father having representation mitigated the effect on the mother: although their ultimate cases were the same, parts of the local authority’s case against the father, to which his counsel was responding, were irrelevant to the mother. Had she had the benefit of her own counsel, cross-examination and submissions tailored to her specific case would have been possible. Instead, she was left to cross-examine the Guardian, an important witness on welfare, and to deliver closing submissions alone. This rendered her participation sterile. The overall prospects of success of her case should have been an irrelevant factor. This was not a case where a party was at fault for losing their representation. Nor was delay a signal factor trumping procedural fairness. Given C’s young age, the plan for adoption could still be put into effect after a delay of some months.

The father, who appeared in person before us, supported these submissions. He argued that it was unfair that the mother had been left in this position. Her predicament had stressed and distracted him and had affected the way in which he gave his own evidence, leading him to give a poor impression of himself.

For the local authority, Ms Johnson argues that the hearing was not unfair for the reasons given by the Recorder. Procedural adjustments were made to assist the mother after her representatives withdrew and her learning disability was accommodated by the court. Her lay advocate enabled her to participate effectively in the proceedings in the manner described in Re C (Lay Advocates) EWHC 1762 (Fam).

For the Children’s Guardian, Mr Abberley concurred. The Recorder identified the relevant factors in coming to a conclusion that was open to her. It was true that the delay arising from an adjournment would not affect the care plan, but it would affect the child.

It is clear from her judgments that the Recorder approached her task conscientiously and that until the issue of the email arose there could be no possible complaint about the conduct of the proceedings. However, from that point on there are two subsequent matters that do cause concern. They relate to the admission of the email and the application to reopen. In my view, neither should have been permitted.

The case took a distinct wrong turn when the local authority applied to admit the email for cross-examination. In my view that decision and the decision to admit it were unwise. The priority cannot have been to obtain still more information, regardless of the consequences. The court already had extensive evidence that the witness was a vulnerable individual who was a trapped victim of chronic domestic abuse. She was living with her alleged abuser and was giving evidence in his presence. His behaviour in court was disruptive and intimidating, even to a professional witness, to the extent that he had been excluded more than once. The email was on the face of it a good faith communication between lawyers, setting aside party differences to secure assistance for a vulnerable client. Co-operation of this kind is to be encouraged and the court should not gratuitously admit such communications into evidence: no doubt for that reason the email had not previously been deployed by the local authority.

In those circumstances, cross-examination of this nature (described by the Recorder as being “to rebut the mother’s evidence”) could have no real value. It risked perpetuating the alleged abuse and driving a wedge between the mother and her lawyers. Under FPR rule 22, the court has the power to control the evidence and the fact that evidence is admissible does not mean that it has to be admitted, particularly at such a late and sensitive stage of proceedings. There were a large number of allegations of domestic abuse, and this was just one more. The local authority already had ample material to challenge the claim of memory loss, and the court was well able to draw conclusions about it. The irrelevance of the exercise can be seen from the fact that the only substantive reference to the email in the final judgment, which contains detailed findings of fact extending to some seventeen pages, are the words highlighted below:

The unwisdom of the late admission of the email is borne out by what followed, but even then the situation might have been salvaged. It would have been open to the mother’s legal representatives to alert the Recorder to the fact that if she admitted the evidence, they would have to withdraw, but there is no record of them doing that. Equally, there is no sign of the court reviewing its decision, as it could have done, when confronted by the loss of the legal team. Altogether, the admission of the document placed the mother and the court in a quite unnecessary difficulty. Although this is not an appeal from that decision, it was the cause of what followed and it is clear that it would have been far better if the court had simply set that piece of evidence aside so that the case could continue with all parties represented.

As to the application made after judgment had been handed down, it is true that this court has given guidance (see Re I (Children) (Clarification of Judgments) [2019] EWCA Civ 898, [2019] 1 WLR 5822) on the duty of prospective appellants to seek clarification of a judgment where it is – I emphasise – genuinely needed, before embarking on an attempt to appeal on the basis that a trial judge has given inadequate reasons. That is not what happened here. This informal application was for a reopening of the case and appears to have been made in reliance on s. 31F of the Matrimonial and Family Proceedings Act 1984 or on FPR rule 4.1(6). It is not necessary to investigate that now, because the thrust of the appeal relates to the refusal to adjourn the proceedings and not the refusal to reopen them. However, on analysis, I consider that the Recorder’s first instinct was sound. By the time the application was made, she had handed down her final judgment and she was in effect hearing an appeal from her own refusal to adjourn, which is not possible: Re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8, [2013] 1 WLR 634 at [44]; Re E (Children) (Reopening Findings of Fact) [2019] EWCA Civ 1447, [2019] 1 WLR 6765 at [45]. Moreover, there was in truth no further evidence for the court to consider. The fact that the mother had the benefit of counsel who was citing other authorities could not justify reopening a substantive decision that had by then been handed down.

Before leaving this issue, I reiterate what is said in Re E, namely that the question of whether a party should seek to appeal or apply to reopen is fact-sensitive. In the present case, in the very particular circumstances that had arisen, it might conceivably have been appropriate for the Recorder to have considered further submissions from those representing the mother if they were made promptly and with proper formality once they came onto the record. However, it was on any view too late for the court to entertain such an application after judgment had been handed down. I sympathise with the Recorder, who had no notice of the issue and little assistance from the parties, but in my view she should have trusted her instinct by refusing to entertain the application and indicating to the mother that her remedy lay in an appeal. Although this was a case management decision taken some weeks earlier, CPR PD52A 4.6 provides that this court may consider, among other things, whether it would be more convenient to determine an application for permission to appeal from a case management decision after the trial has concluded. In the particular circumstances that had arisen, it is not likely that the mother would have been disadvantaged by not attempting to appeal until judgment had been handed down.

Finally, before coming to the crux of the appeal, I would clear the ground in two other respects. First, although the application to reopen was procedurally irregular, it has not led to difficulties in this court addressing the substantive issues. The Recorder in effect treated the reopening application as if it was a rerun of the adjournment application and the target of the appeal is likewise the refusal to adjourn. In the circumstances, concern about the route by which the matter has come before this court effectively falls away. Second, and more fundamentally, I emphasise that we are not concerned with the merits of the decision to make a placement order. There has been no attempt to appeal in that respect. That is not surprising as the Recorder approached her task with evident care, and there could be no prospect of a successful appeal on the basis that her decision was wrong. We are solely concerned with whether the process by which it was reached was fair.

It is a fundamental principle, rooted in the common law concept of natural justice and reflected in the ECHR, that a legally valid decision can only spring from a fair hearing. If a hearing is unfair, a judgment cannot stand: Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455 at [49].

The legal principles governing the Recorder’s decision and this appeal are well-established in the authorities to which we were taken. The most helpful of them in the family law context are:

The Recorder systematically reviewed the family authorities, drawing out similarities and differences to the present case. I do not think it is necessary to repeat that exercise. The decisions each provide instances in which proceedings were or were not adjourned and where such decisions were or were not upheld on appeal. What is important are the underlying principles, which I now seek to identify.

The question of whether proceedings should be adjourned can arise at different stages in proceedings and for a variety of reasons. When it does, the authorities contain a range of propositions:

I emphasise that these propositions are a selection and not a checklist, still less an exhaustive one. The essential touchstone is fairness and the weight to be given to any individual proposition or other relevant factor must be a matter for the judgement of the court in the case before it.

I have expressed concern about the events that precipitated the loss of the mother’s representation. They were unfortunate and unnecessary, but it does not follow that the proceedings as a whole were unfair. Indeed, I have reached the conclusion that they were fair.

In the first place, the events of 24/25 October 2022 must be placed in context. The question of whether C could safely live with her parents had been the subject of particularly exhaustive consideration throughout the proceedings. All that information was captured in the written evidence. The father had legal advice and representation throughout the period and the mother had legal advice and representation for all but a day and a half. Up to that point she had been able to present her case in an effective manner by making statements, by her accounts being extensively recorded in a wide range of professional assessments, and by her having given almost all of her oral evidence. That is not to minimise the unsatisfactory position she was placed in at the end of the hearing, but to put it into perspective.

Next, it is relevant to consider the extent to which the loss of representation placed the mother at an actual disadvantage, as opposed to a notional one. Here, given the overall complexion of the case, I do not consider that the mother was deprived of any significant further opportunity to urge her case on the court. The significant psychiatric and psychological evidence was unchallenged. Critical evidence had been given by the independent social worker. The essential issue for the court concerned the reliability of the written record of the parents’ situation. That was a factual question in respect of which the mother’s representatives, had they remained or been replaced, could have made little impact by means of questions to the father or the Guardian, whose advice about welfare was almost entirely predicated on the court’s findings of fact, or by closing submissions. The weight of the written record and the absence of any favourable professional opinion would have hampered any advocate. Mr Day was unable to make good his submission that there might have been forensic opportunities for an advocate to distinguish the mother’s position from that of the father. He fell back on the possibility that new lawyers might have advised the mother to abandon her case and separate from him. However, by that stage this was fanciful. Even if such advice was given, the mother would not have accepted it and it would in any case have been too late. For better or worse she had remained with the father and any chance to separate from him was probably lost in March 2022. They presented as a couple throughout the trial and indeed at the hearing of the appeal. Taking all these matters into account, I therefore accept that the impact on the mother’s case (as opposed to the mother personally, as to which I am sympathetic) was limited, and I take that to be what the Recorder meant. She need not have relied on the concrete quality of the mother’s closing submissions as a further indicator of lack of insight, but that was only one of several examples that were independently available.

Third, the predicament in which the mother was placed was mitigated by the presence of the father’s lawyers, presenting broadly the same case, and her own lay advocate, and by the assistance given to her by the Recorder.

The court was also bound to take into account the weight to be attached to the rights and interests of others. Most particularly, the presumption that delay was prejudicial to the child sounded loudly in this case. C had been waiting all her life for her future to be decided and the proceedings were already overrunning at double the statutory maximum. If the case was adjourned it would take several months before a decision emerged, incidentally entailing considerable expense and burdens on witnesses and the court. The parents had understandably found the proceedings difficult and did not want to start again, whatever they now say. The Recorder was therefore right to give weight to the serious disadvantages of an adjournment.

I acknowledge that the withdrawal of the mother’s lawyers was concerning to the father, but it is impossible to accept his submission that it led to unfairness to him. As the Recorder’s judgment shows (see paragraph 12 above), his behaviour in the witness box was of a piece with his earlier behaviour, and with many other recorded observations.

Finally, I accept that the decision about C was one of great importance and that appearances matter. This is reflected in the fact that legal representation is automatically provided to parents in these cases by the state. However, an informed, dispassionate observer would look at the whole picture and would consider that, notwithstanding the events leading to this appeal, the proceedings were fair overall. Although I regret that the issue was allowed to arise in the first place, once it had the Recorder was entitled to refuse the application for an adjournment. Thereafter, although she should not have entertained the application to reopen, she was right in the end to refuse it. There has been no breach of natural justice or of Convention rights in the making of the care and placement orders in respect of C.

I would dismiss the appeal.

I agree.

I also agree.