Court of Appeal rejects claim by mother Family Court should not have made placement order after her lawyers withdrew at advanced stage

The Family Court did not act unfairly when a judge refused to adjourn an adoption case when the mother’s solicitors withdrew at a late stage, the Court of Appeal had decided.

In P, Re (A Child: Fair Hearing) [2023] EWCA Civ 215 Lord Justice Peter Jackson said the original proceedings concerned C, a girl born in October 2021.

When she was a day old, Coventry City Council placed her in foster care and an application for a placement order was issued in May 2022.

Although C is her parents’ only child, they have nine others between them. 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 the mother’s older sister; both have accused him of violence towards them.

The mother has been assessed by a clinical psychologist as having a learning disability and an IQ of 63 and the father has “a substantial criminal history dating back to 1998 for offences including violence and a psychological assessment considered he would likely meet the threshold for a diagnosis of psychopathy”, the judge noted.

Coventry asserted that if C was in her parents’ care she would be at risk of emotional and physical harm and neglect.

As the placement order proceedings neared their end the local authority applied for permission to question the mother about an email sent by her solicitor to its solicitor, but which had not been among the 2,147 pages of evidence already before the court.

This stated: “I have had a long discussion with my client. She has spoken to [the team manager] today. I can confirm she has separated from father and is in urgent need of help. Please could the local authority assist her with getting a place at a refuge in the first instance? She is currently at her aunt's house, but father is aware of this address, and she does not feel safe there. She also has no money at all and only the clothes she is wearing.”

Recorder Arthur admitted the correspondence and explained her priority had been “to have the fullest, most accurate and contemporaneous evidence before me, on which to decide C’s best interests for her long-term future”.

Following this, the mother’s barrister and solicitor withdrew due to professional embarrassment, leaving her unrepresented in the witness box and in the afternoon she applied unsuccessfully for an adjournment.

Recorder Arthur said of her decision to refuse an adjournment: “Looking at the issue in the round, considering the advantages and disadvantages, fairness and unfairness, to all parties…I found that any disadvantage to [the mother] was less than the disadvantage to all the parties, including C, of adjourning the final hearing.”

She described the disadvantage to the mother as “limited” as the social workers had already given evidence, the mother had almost completed her evidence, the father was running the same case and his counsel could undertake the main cross-examination of the children’s guardian.

The Recorder concluded a placement with either parent “would come with a very high risk indeed. It would place C at high risk of emotional harm from witnessing the volatile and abusive relationship between the [parents]”.

At appeal, the mother argued the Recorder’s refusal of an adjournment unfair and constituted a stark breach of her Article 6 rights through being unrepresented in such a serious case.

Peter Jackson LJ said that after the decision to admit the email “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.”

He said 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 court already had extensive evidence that the witness was a vulnerable individual who was a trapped victim of chronic domestic abuse and was living with her alleged abuser whose behaviour in court was disruptive and intimidating,

Peter Jackson LJ said: “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.”

He went on: “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.”

It would have been open to the mother’s legal representatives to tell the Recorder that if she admitted the evidence, they would have to withdraw, but there was no record of them doing that or of the court reviewing its decision when the legal team left.

Loss of the mother’s legal team was “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”.

Peter Jackson LJ explained he must 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,” he said.

He added: “The weight of the written record and the absence of any favourable professional opinion would have hampered any advocate.”

The court had also had to take account of the presumption that delay was prejudicial to C, as an adjournment would add several months before her future was settled.

Peter Jackson LJ concluded 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. “

Lady Justice King and Lord Justice Lewison agreed with the main judgment.

Mark Smulian