Rare appeal allowed over refusal by judge to adjourn final care hearing

A mother's appeal of a decision by a family judge not to adjourn an imminent final hearing in care proceedings has been allowed in a "rare" case before the Court of Appeal.

In F (A Child : Adjournment) [2021] EWCA Civ 469 Lord Justice Peter Jackson said there was "no good reason" to require the mother, whose due date was less than a month before the proposed hearing date, to participate in the hearing at such an advanced stage of her pregnancy. Her application to adjourn the hearing should have been granted, he added.

The proceedings concern a 2-year-old boy, "J", and began in August 2018 when the mother was living with her partner "Mr K". J suffered a number of injuries while in their care and was later removed into foster care.

It was not possible to establish which of the two adults was responsible for the injuries, but at a hearing in August 2019, His Honour Judge Jack made findings that the mother suffered serious abuse at the hands of J's father.

Following the hearing, the local authority decided to change its care plan of adoption to rehabilitate J to the care of his mother and her latest partner.

On 30 November 2020, J was placed back in their care, but the placement lasted for just a few days before a violent incident - the exact facts being in dispute according to Peter Jackson LJ - between the mother and Mr M led to J being returned to his previous foster carer.

In light of the events, the local authority revived its application for a placement order and, coming before the judge on 18 February 2020, it was directed that there should be a ten-day hearing on the first available date after 1 April.

"That is a very long time estimate for a case of this nature and it does not appear that close consideration was given at that stage to the format of the hearing, or of the detail of the issues to be decided, or the length of the witness evidence. Later discussions between the parties and the court identified available dates in April (before a deputy Circuit Judge) and in late June/early July (before the Judge), but the parties were unable to agree," Lord Justice Peter Jackson said.

On 22 February the draft order was filed by counsel then acting for the local authority and informed the judge in an email copied to the other parties that the mother (whose due date was by then known to be 5 May) argued for a later hearing date. But the judge sent out his response on 1 March, saying he favoured the April date.

Following this, the court sent a notice of hearing for a hearing starting 8 April. The mother issued an application three days after the notice seeking an adjournment of the hearing as fixed.

Her case for an adjournment was set out in a written submission by her solicitor, Ms Snowdon. She argued the mother was concerned because her pregnancy with J was challenging, resulting in giving birth a week early. Additionally, Ms Snowden said that mother was "extremely concerned" that the hearing would fall within a period where she would be heavily pregnant, would not be able to take as active a part as she would wish in the proceedings and "in short that a fair hearing could not take place in those circumstances".

Ms Snowden referred the court to chapter 6, page 170, of the Equal Treatment Bench Book (2021), which says consideration should always be given to accommodating pregnant women whether they are parties, witnesses or representatives. It also says that a woman who is heavily pregnant or has just given birth "should not be expected to attend a court or tribunal unless she feels able to do so".

The passage adds: "Although every woman is different, this is likely to apply at least to the month before the birth and at least two months after the birth. Even a telephone hearing may be too difficult if the woman is looking after the baby on her own. This may mean that a hearing has to be adjourned."

The local authority (LA), supported by the father and the Children's Guardian, opposed the application. Its position statement argued that the proceedings had been ongoing for too long, saying an adjournment could lead to years of delays.

The statement added: "The paramount consideration for the Court is the welfare of the child (section 1(1) Children Act 1989) and any delay in determining the questions in the case is detrimental to the welfare of the child (section 1(2) Children Act 1989)."

It continued: "Whilst it is appreciated that it is far from ideal for the final hearing to proceed whilst the mother is some 8 months pregnant, this must be balanced against the prospect of a delay of another 4 months for this child and proceedings hitting the 3-year mark. It is in the interests of justice for this final hearing to proceed without delay."

According to the local authority, a fair trial was possible since a number of participation considerations could be given to the mother, including remote attendance over video link alongside regular breaks. Simply being pregnant was not a reason to suggest that the mother would not receive a fair trial.

Upon hearing from both, the judge refused the mother's application for an adjournment. His ruling was recorded in a note, which read:

"Yes, it is a difficult one. Certainly not an easy decision. I'm just reminding myself again of what was in the LA's position statement. This case has run far too long already, not the fault of anyone. Not in J's interest to continue to run and run. Whilst taking on board all of the arguments raised on behalf of Mother, I do take the view that it is desirable, if at all possible, that the hearing should be completed before she gives birth. Also, mindful there are risks with starting a hearing in April, highlighted by Miss S [mother's solicitor], and yes, it may go wrong but overall, I take the view that attempt should be made to hear the case. There's no guarantee it'll work but it's important to try to make it work for that to be attempted. Of course, Mother's best interests need to be considered, there will have to be breaks, if worst comes to worst, hearing may need to go off. My view is that on balance, it is right it should proceed in April and it is important to try and make this work for J and on balance the hearing should proceed."

The mother then applied for permission to appeal on 25 March on the grounds that (1) the judge's decision was wrong because he placed insignificant weight upon the manner in which the mother's pregnancy would affect her ability to partake in a final hearing, and (2) because he placed too much weight on the need for the case to be finalised without further delay.

Peter Jackson LJ granted the appeal, categorising the decision not to adjourn as a case management decision. He argued that the judge's decision was wrong and applied the standard of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 in which the court emphasised that in the context of remote hearings "an appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong."

Peter Jackson LJ ruled the judge's decision was wrong for the following reasons:

1. The welfare paramountcy principle under ss. 1 (1) of the Children Act 1989 applies when a court determines any question with respect to the upbringing of a child. It does not apply to case management decisions. "The touchstone for case management decisions is justice, not welfare, though in a family case welfare plays an important part in the assessment." That was made clear by the terms of the overriding objective in Rule 1 of the Family Procedure Rules 2010.
2. The Equal Treatment Bench Book, whose most recent edition was published in February 2021, is the product of serious thought about fairness in the conduct of legal proceedings. It is written by judges for judges. Its guidance should be taken into account wherever it is applicable. It was applicable here, and the judge was squarely referred to it, but he did not mention it.
3. The final hearing will be of very considerable importance for this family. It will determine J's future and will very likely influence the future of the unborn child, for whom proceedings are also contemplated. "A hearing in these circumstances is bound to be exceptionally stressful for a person in this young mother's position, and her experience of her first pregnancy can only exacerbate matters. Her evidence will doubtless be significant, and she will face cross-examination." The local authority had suggested that she need not attend court in person and that she could give evidence by video link and attend the rest of the hearing "from the comfort of her own home". However, Lord Justice Peter Jackson said this overlooked the important fact that a party participating in a court hearing remotely is still attending court and should be able to engage fully with the process. "The mother is in any event entitled to expect that she could attend for the whole of the hearing in person if she wants, and certainly that she should be able to choose to attend court to give evidence: indeed we are told that the court was willing to accommodate that."
4. The judge did not sufficiently grapple with these matters. "The difficulty began when the court imposed a date, despite being told of the mother's situation and that of her advocate. At the hearing itself, the starting point was to identify the likely practical arrangements for the hearing, but that did not happen. A general intention to allow breaks in proceedings, whatever their format, does not remedy the position if the hearing should not be taking place at all."
5. There was obvious good reason to be concerned about the impact on J of the disturbing length of these proceedings, which, after 2½ years, were now in week 135. However, the court needed to consider the actual consequences of further delay for him. "The fact that he is in a familiar and potentially permanent foster placement was clearly of some relevance. There are some family cases that must be heard although a party is at a disadvantage. For example, interim care orders at the time of a new birth are sometimes inevitable for the protection of the baby; there will also be cases where short, procedural hearings can quite properly take place when substantial trials cannot. This hearing does not have that complexion. The judge did not explain why avoidance of further delay was such an overriding consideration. Ground 2 is also made out."

Peter Jackson LJ concluded that any postponement "in this highly overdue case" was regrettable, and making arrangements for a hearing in J's case after the birth of the baby would not be easy. Planning for J's future would be further delayed. How significant that would be for him would depend on what the plans are.

"But, as was said in Re A at [12], in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for a child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing. For the reasons I have given, the decision in this case fell outside the range of reasonable ways of proceeding that were open to the court. There was no good reason to require the mother to participate in this important hearing at such an advanced stage of her pregnancy and her application to adjourn the hearing should have been granted."

The Court of Appeal judge said: "For these reasons, we allowed the appeal, set aside the judge's order and vacated the hearing in April. The matter is remitted to the judge for an early case management hearing and for a new trial date to be set, to start no sooner than early July. Among the matters that may benefit from consideration at the early hearing is the current time estimate, which the parties rightly consider is capable of being significantly reduced."

Lady Justice Carr agreed.

Adam Carey