P (Children), Re

A discretionary case-management decision should be disturbed on appeal only where it falls outside the generous ambit of reasonable disagreement or is plainly wrong. Fairness under Article 6(1) requires balancing both parties’ rights, including the right to a hearing within a reasonable time. Article 6(3) applies to criminal charges and gives no separate civil entitlement to legal assistance or advocacy by a McKenzie friend. Interim residence orders are particularly difficult to challenge. An occupation order affecting a home and livelihood is exceptional and should be a last resort, but may be upheld where the judge evaluates housing needs, financial resources, conduct and the order’s likely effect, and has properly considered the evidence.

The father applied for a stay of execution and permission to appeal against orders made by His Honour Judge Carston QC on 12 September 2002. The orders required him to leave the former matrimonial home, regulated occupation and restrained molestation, harassment and violence. The judge also made an interim residence order concerning the parties’ four children.

The father argued that the hearing should have been adjourned because he was acting in person, that the orders breached Article 6 and involved discrimination, and that the judge had failed to consider relevant evidence, the interests of an adult son with an interest in the property, and the effect on his teaching livelihood. The central issues were whether the judge had exercised his discretion unlawfully or plainly wrongly, and whether the stay or permission to appeal should be granted.

The Court of Appeal dismissed the application for permission to appeal and refused to extend the stay. The order was made with costs, subject to an undertaking permitting the applicant to remain in occupation until Thursday.

1. Adjournment and procedural fairness. The refusal to adjourn was well within the judge’s discretion. The husband had known of the application since April, had been without solicitors for more than a month, and had received the relevant bundle before the hearing. The judge was entitled to balance the difficulties of a litigant in person against the wife’s need for timely access to the court. The late witness statements and alleged documentary deficiencies did not create procedural unfairness undermining the decision.
2. Human rights submissions. Article 6(1) required a fair hearing for both sides within a reasonable time. The judge had struck the necessary balance, and no breach was shown. Article 6(3) was inapplicable because the proceedings did not concern a criminal charge. The allegations of discrimination were also unsustainable.
3. Children. The interim residence decision had been based on the mother’s established role as primary carer, the father’s lack of experience as a full-time carer, concerns about his ability to manage the daily care of four young children alongside his commitments, and the importance of continuity. There was no real prospect of successfully appealing that decision.
4. Occupation order. An order regulating occupation of a home was a draconian remedy, appropriate only as a last resort in exceptional cases. The court was nevertheless entitled to regulate the husband’s beneficial interest. The judge had considered the parties’ housing needs and resources, financial resources, conduct and the likely effect of the order. The wife and children faced plainly unsatisfactory accommodation, while the husband had possible alternative accommodation and could potentially teach at pupils’ homes. The judge had considered the disruption to his livelihood and was entitled, after hearing the evidence, to prefer the wife’s account of violence. No plain error in the exercise of discretion had been demonstrated.

• Court of Appeal (Civil Division): On 23 September 2002, Lord Justice Ward dismissed the applications for permission to appeal and a further stay, with costs.
• Court below: On 12 September 2002, His Honour Judge Carston QC made occupation, non-molestation and interim residence orders.