D (A Child), Re

Procedural fairness in a trial involving litigants in person is assessed by the conduct of the hearing as a whole. Procedural slippage, including late reports, late or unserved statements, and refusal to admit further evidence, does not establish appellate prejudice where the party could object, did not do so, and consented to or cooperated with the trial process. Where the transcript shows an experienced judge giving fair and even-handed treatment, permission to appeal on procedural-fairness grounds may properly be refused.

The mother sought permission to appeal from a hearing before His Honour Judge Masterman concerning the father's contact with their daughter. The hearing was transferred at short notice because the allocated Newport judge could not sit. The CAFCASS report and addendum were late; statements were late or unserved; and the judge refused to hear evidence from the mother's partner. Black J directed an oral permission hearing limited to alleged procedural unfairness. The central question was whether those circumstances deprived the mother of a fair opportunity to present and answer the competing cases.

1. Application dismissed. Lord Justice Thorpe concluded that the asserted litigation prejudice was not raised before Judge Masterman. The mother had previously shown that she could identify and raise procedural concerns. Her failure to object in Cardiff, together with her consent to and cooperation with the judge's process, was material.
2. The preparation had been imperfect. The CAFCASS report had been delayed, the parties had not fully complied with filing and service directions, the case had moved courts at short notice, and the judge initially read a statement not served on the mother. The judge directed that the statements be read during the lunch adjournment and managed the evidence and timetable in a case involving two litigants in person.
3. The refusal to hear the mother's partner was considered in the context of the absence of statements, the need for each party to know the other's evidence, the risk of reciprocal additional evidence and cross-examination, and the need to complete the one-day hearing. On the available transcript, the judge had a proper appreciation of fairness and even-handed treatment.
4. There was no substance in the allegation of prejudice or unfairness. Permission was refused, so the court did not rule on the merits of the proposed appeal. The application was dismissed, with no order for costs.

1. Court of Appeal (Civil Division): Refused permission to appeal on the procedural-fairness issue. The court therefore did not proceed to determine the appeal.
2. Black J: On 4 November 2004, directed the permission application for oral hearing on notice, with an appeal to follow if permission were granted.
3. Cardiff Civil Justice Centre: His Honour Judge Masterman conducted the one-day hearing concerning contact arrangements.