P v C

THE DISTRICT JUDGE: On 9 December 2024, I made a final Child Arrangements order in relation to J aged 3 years and 7 months. It was made in the absence of the father who did not attend court. The matter was listed for a two-day hearing on 9 and 10 December 2024, it concluded on the first day of the hearing.

I ordered that the child should live with the mother and that there should be indirect contact only with the father once a fortnight, with a prohibited steps order in relation to removal from the mother’s care.

As the father did not attend, I recited in the order that any application to revisit the order needs to be made promptly, there must be good reason for his non-attendance, and the applicant must have a reasonable prospect of success.

I note that my order recorded that no contact had taken place since the previous hearing on 4 September 2024, despite that order directing supervised contact.

I note that the last actual contact which took place was in December 2023, save on one occasion on 14 June 2024, which triggered the mother making an application for a non-molestation order.

The order records that there was no attempt made by the father to contact the contact centre services, save an initial call after the hearing on 4 September 2024, when it is alleged that the father was verbally aggressive.

The order records that contact needs to be indirect initially, in order to test the father's commitment, and should only progress to supervised contact after a sustained period of engagement.

The father has now formally applied under FPR r 27.5 to set aside that order on the basis that it was made in his absence. An application came in on 16 December 2024, effectively a week after the conclusion. I gave directions in relation to this matter, in relation to statements and also for a verbatim note of my judgment to be included in the bundle.

At paragraph 22 of that judgment, which is found at page 133 of the bundle, it records that the father did not attend, there was no explanation as to why he did not attend and he had not engaged with the contact centre.

Mother's position is that due to lack of commitment and compliance (she had not even received a birthday card for J) that contact should be indirect.

I heard briefly from the local authority. There has been no attempt by father to engage with the contact centre, save after the hearing in September 2024 when the father was verbally aggressive and accusatory towards the contact workers. There has been no contact for a significant period of time, and that any reintroduction needs to be handled sensitively, and needs to start by indirect contact before progressing to supervised to test the father's commitment.

I therefore determined matters on the basis of the paper evidence then before the court, and the brief representations made at that hearing.

In my judgment, I was satisfied that the father was aware of the hearing, he had been in communication with the local authority, he had been sent the bundle and a position statement and had been aware of the date for some time. He had been chased in relation to a referral to the contact centre, and ultimately, I determined that there was no reasonable excuse for him not to attend the hearing.

On the basis of that and everything that I had read, I proceeded to make a final order. I determined that further delay would be harmful to the child’s welfare as well as having regard to the overriding objective and the resources of the court. Accordingly, I made an order for indirect contact only so as to test the father's commitment going forward.

If the father was to engage over a sustained period, then consideration could be made for contact to progress to that of supervised at an accredited contact centre funded by the father.

The social worker proposed that that perhaps should be fortnightly for a couple of hours and on special occasions, but any further progression beyond that, would have to be based on the best interests of the child, the behaviour of the father, and the concerns highlighted throughout these proceedings.

My order was also on the basis that the child had not seen the father for a significant period and, therefore, his ability to meet the needs of a grown child would need to be assessed.

I therefore made the final order accordingly, with the provision that if he wished to provide information as to why he was not here today, then he should do so having regards to the appropriate statutory test as outlined.

I have read the father's application. He said he had no knowledge of the hearing on 9 December, that he had been told by the court staff that it was listed on the 10th and not the 9th. He seeks to challenge the section 7 report recommendations. He denied ever receiving clear notification of a hearing scheduled for the 9th and the 10^th December, albeit I think he accepts that he should have, perhaps, read more carefully the correspondence he had received from mother's solicitors. He said he arrived on day two, and that he seeks a structured contact arrangement with regard to fostering a relationship between him and his son, and he wishes the court to relist this matter so that matters can be fully considered.

Mother's position is that she seeks for the father’s application to be dismissed.

The dates of the final hearing were provided to the father on 4 September 2024, and the father was further communicated with in relation to the hearing by having the bundle sent to him which sets out the hearing date, including a position statement which also refers to the date of the hearing both of which were sent by way of email to the father's email address.

In her position statement, further elaboration is put forward in relation to the relevant test pursuant to rule 27.5 which they say is not met.

The application was not made promptly (although it was only made six days after the hearing) and there is no good reason for the applicant not to attend. He knew or ought to have known of the date of the hearing. He attended the previous hearing on 4 September 2024, when the final hearing date was listed, and he was notified of that date. He was sent a bundle on 5 December 2024 by email, and a position statement again setting out the details of the date of the hearing. It is also maintained that he has no reasonable prospects of success.

The local authority evidence and section 7 report is clear. There has been no contact since the previous hearing and no contact for a significant period, and any re-introduction needs to be handled sensitively and needs to be indirect to test father's commitment.

I have heard and listened very carefully to father's submissions today, I have read his evidence very carefully. He says he had the dates mixed up. He said he was told by the court office that the hearing was on 10 December and he turned up on that date, but of course the hearing had concluded on 9 December 2024. He says the allegations against him are not true. He wants to be heard in relation to the court making decisions in relation to the child's wellbeing, and to challenge the section 7 report. He denies domestic abuse, he rejects the mother's allegations as being baseless and wants to prove he can be a father. He is able to provide evidence to the court to establish this. He says that he did pay the fee for contact, but mother did not comply.

I asked him as to whether he ultimately did comply with my order of 9 December 2024 with regard to indirect contact on a fortnightly basis. He explains that he did send a Christmas present and a card for Christmas, but he did not send any further communications because of concerns as to whether he would be in breach of any non-molestation order.

In submissions, mother's counsel indicates that she did receive some communication over the Christmas period, but that Cafcass is clear as to their recommendations to build up contact first, and that the father needs to comply with the initial order before matters can be progressed and there is no realistic prospect of success in this application proceeding.

Rule 27.5 of the Family Procedure Rules, 2010 provides for a party's right to set aside a judgment or order following their failure to attend court.

In essence, where they do not attend a hearing, and an order is made against them, they can apply to have that order set aside, as the applicant has done.

The onus is on the party who has failed to attend to demonstrate why it is that the judgment or order should be set aside. Such application must be supported by evidence, and I am particularly mindful of the fact that the court may only grant such an application if the following conditions have been met -

The court does not have a broad discretion whether to grant such an application to set aside an order.

In order to succeed in an application to set aside a judgment or order, all three pre-conditions have to be satisfied. The conditions should be looked at together rather than sequentially. If each of these conditions are met, the judgment will be set aside, save in a very exceptional case.

The element of discretion only comes into play after an applicant has satisfied the three pre-conditions. The court's approach at that stage is essentially evaluative rather than discretionary. I refer to a number of cases in the civil jurisdiction, under the equivalent rule in the CPR including Regency Rolls Ltd & Anor v Carnall [2000] EWCA Civ 379.

The case of Tinkler & Anor v Elliott [2012] EWCA Civ 1289 held that only if the mandatory requirements are satisfied does the court have a discretion, which at that stage is somewhat narrow.

The law provides a complete code as to what a party should do when it seeks to set aside a judgment on the grounds that they did not attend the original hearing (Mabrouk v Murray [2022] EWCA Civ 960)

In the case of Bank of Scotland v Pereira [2011] EWCA Civ 241 it was mooted as follows.

“If a case is disposed of in the absence of a party and the party has not attended for good reasons and has an arguable case on merit and has applied to set aside promptly it would require very rare circumstances indeed before the court would not set aside the order. The strictness of the trio of hurdles is plain, but the rule is modified by three factors. First, what constitutes promptness and what constitutes good reason for not attending is, in each case, very fact-sensitive and a court should, at least in many cases, not be very rigorous when considering the applicant's conduct. Similarly, the court should not prejudge the applicant's case, particularly where there is an issue of fact when considering the third hurdle. Secondly, like the other rules, it is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application to set aside an order fails, does not prevent the application seeking permission to appeal the order. It is not very convenient, but an applicant may well be able to issue both an application to set aside an order, and an application for permission to appeal at the same time, and to get an agreement from the other party for an extension of time for the application for permission to appeal.”

However, the case Williams & Anor v Hinton & Anor [2011] EWCA Civ 1123, held that where a party is dissatisfied with a judgment at a hearing in which they failed to attend, and their main principle of appeal is focused on a judge proceeding in their absence, as opposed to adjourning the matter, then the proper route to challenge the judgment is by way of application to set it aside rather than appeal.

Within the Family jurisdiction, it seems that the correct way to proceed is in the latter respect. The case of Re P (A Child) [2013], which held that there was no need for a mother to appeal against a prohibited steps order where she had failed to attend the original hearing, if she could apply to set it aside under rule 27.5 instead.

Recently, in the case of Re K (Children: Sexual Abuse Findings) [2025] EWCA Civ 263, it was held that applications under rule 27.5 should be made to the trial judge and not to the appellate court, and that where a party is seeking a new fact-finding hearing within care proceedings on the grounds that they did not attend the hearing, they should apply to the trial judge under rule 27.5, provided they believe they can satisfy the three requirements of the rule.

Promptness. What constitutes promptness and good reason for not attending is fact sensitive, and the court will not, in most cases, be very rigorous when considering an application's conduct. Like all other rules, it is subject to the overriding objective. Case law relating to the similar provision contained in the CPR, rule 39.3(5) may prove useful. The Family Procedure Rules imposes duties on the parties to litigation, which includes a duty to aid the court in achieving the overriding objective, by ensuring the case is dealt with expeditiously. What is meant by promptly?

In Core-Export Spa -v- Yang Ming Marine Transportation Corp [2020] EWHC 425 (Comm), 23 days was held to be too long a delay for making the application. In Points of View v Erre DB Group SA [2021] 2 WLUK 70, 26 days was held to be too long as was 30 days in Regency Rolls Ltd & Anor v Carnall [2000] EWCA Civ 379, albeit in Watson v Bluemoor Properties Ltd [2002] EWCA Civ 1875, six weeks was not.

In Hart Investments Ltd v Fidler [2006] EWHC 2857 (TCC), a delay of 59 days was regarded as being at the outer edge of what could possibly be acceptable. In Mabrouk v Murray [2022] EWCA Civ 960 a delay of four months was too long.

The case of Tinkler & Anor v Elliott [2012] EWCA Civ 1289 held that the following propositions could be derived from the authorities. Promptness was a mandatory requirement. It required the applicant to act with all reasonable celerity in the circumstances. However, promptness is not measured solely by reference to the length of delay, but also by considering the reasons for any delay. As said in Regency Rolls Ltd & Anor v Carnall:

In TBO Investments Limited v Mohun-Smith & Anr [2016] EWCA 403, the Court of Appeal reiterated that the applicant had to show the application to set aside was made with reasonable celerity and that they had not acted with needless delay in making the application. The assessment of promptness was very fact sensitive and the court's assessment of the applicant's conduct should generally not be too rigorous. Moreover, promptness of the application is just one of the factors the court must consider and therefore not solely determinative of the issue. The longer the delay and the lack of adequate reasons for it, the more likely that weight will be given to that factor (see also Sahidur Rahaman v Raman Bose [1999])

There may be facts and circumstances in relation to a litigant in person which might go to an assessment of competence. An opponent of a litigant in person is entitled to assume finality, without expecting excessive indulgence to be extended to the litigant in person. The fact that a litigant in person does not really understand or appreciate the procedural courses open to them, does not entitle them to extra indulgence. Competence, nevertheless, is a mandatory requirement.

Good reason. In the case of Brazil v Brazil [2002] EWCA Civ 1135, it was said,

In Estate Acquisition and Development Limited v Wiltshire [2006] EWCA Civ 533, the Court of Appeal followed what was said in Brazil v Brazil:

The court can also take account of the merits when looking at the true reason for non-attendance, when there is a reasonable prospect of success in having an order set aside (TBO Investments Limited v Mohun-Smith & Anr)

In an application to set aside, the court should not adopt too rigorous an approach to the question of whether good reason has been shown for the applicant's non-attendance. Rather it should have regard to the need to give effect to the overriding objective in dealing with cases justly, and to the applicant's right to a fair trial, as set out in Tinkler v Another & Elliott.

Reasonable prospects of success. "Real" means that the prospect of success must be realistic rather than fanciful. If it is fanciful then it is not likely to be reasonable. Moreover, it must also have some chance of success, and must be more than merely arguable and carry some degree of conviction, for which there is a significant wealth of case law, particularly within the civil procedure rules equivalent, which I do not fully set out here but nevertheless take account of.

Of course, I also remind myself that rule 27(5) only applies if the respondent has had notice of the hearing. If not, then the court's discretion to set aside a judgment arises instead under rule 4.7(b) and 4.1(3).

To summarise, all three conditions in rule 27(5) have to be satisfied. If the conditions are satisfied, the court has a residual discretion to set aside the order. Each condition has to be interpreted in accordance with the overriding objective, and the European Convention on Human Rights, Article 6. Good reason is fact sensitive. When conducting a good reason assessment, the court has to look at why the party did not attend. In identifying the reasons for not attending, the court has to ask why the party was unaware. A holistic process has to be taken, and I refer particularly to the case of Anne Alexander Hotels v Blake-Coulter & Ors [2016] EWHC 1457 (QB).

I have spent a significant amount of time going through the law in this area, because it is important not to lose sight of the three conditions that I am required to consider.

First of all, the issue of promptness. The hearing took place on 9 December 2024, the application to have the order set aside was made on 16 December 2024. I am satisfied that the application was made promptly.

The next consideration I have to consider is whether there was good reason for not attending the hearing. The applicant says that he had no knowledge of the hearing on 9 December 2024, and was told the hearing was to take place on 10 December 2024.

By his own admission, he recognises that perhaps he should have read the communications received from the mother's solicitors more carefully. It is clear from the evidence before the court, that correspondence clearly set out the forthcoming hearing on 9 and 10 December 2024. The order of 4 September 2024 providing for this listing and the dates of the same, it is said, were given to the applicant at the time when he was in attendance. A copy of that order would have found its way to the applicant at his normal communication address. I am further satisfied that he was presented with a bundle, which would have contained the dates for the hearing, and also a position statement, and the bundle would have, of course, included details of the hearing dates itself.

The fact that the applicant chose not to read that, I am afraid does not, in my view, provide a good excuse. On that basis, I do not accept, despite what the applicant says, that he had reasonable grounds or good reason for not attending the hearing on 9 December 2024. I do not dispute the fact that he arrived at court on 10 December 2024, but in my view, the hearing by then had concluded, and the hearing was always a two-day case.

Even if I am wrong with regard to that, it appears to me that the nail in the coffin in relation to the father's application is, in essence, with regard to the reasonable prospects of success.

In my view, if I were to relist this matter, there is no reasonable prospect of success in relation to the outcome being any different from that which I determined on 9 December 2024.

The father has not had contact with J, who is aged 3 years and 7 months, for a considerable period of time. The last contact was December 2023, save for 14 June 2024. There has not been any supervised contact since, despite being ordered. It may be disputed as to the reasons why, but effectively, no such contact has now taken place for a considerable period of time.

In addition, following on from my order on 9 December 2024, the father has only exercised the provisions of that order as to indirect contact once a fortnight on one occasion, being Christmas. Since the order of 9 December 2024 to date, period of effectively four months, indirect contact has only taken place once.

I fully accept the recommendations of the social worker in this matter, that father's commitment needs to be tested. Following on from a period of indirect contact, it may well be that matters can be progressed. Until such a sustained period has been evidenced, and the father has shown commitment, in my view the father's application is bound to fail.

On that basis, the application is dismissed. The order of 9 December 2024 stands.