A v G

In children proceedings, a court should preserve a fixed final hearing, particularly where the litigation is long-running and a party is in default of directions, unless good reasons justify an adjournment. Ill-health must be established by sufficiently cogent evidence showing genuine incapacity to prepare for or participate in the hearing. The court should examine with care any attempt to obtain an adjournment by collateral means. An interlocutory appeal concerning an adjournment does not automatically invalidate later orders: each judicial decision involves a separate exercise of discretion and must be challenged on its own merits. A short adjournment may satisfy the Article 6 requirement of a fair opportunity to present an appeal where the litigant can make written submissions or arrange representation.

The appellant sought permission to appeal an order of Wilson J dated 26 April 2005. That order adjourned his appeal from a District Judge’s refusal of various case-management directions, but listed it before Bracewell J on 5 May 2005 so that a six-day final hearing concerning residence, contact and financial provision for the parties’ child could proceed on 9 May 2005.

The appellant had not attended the hearing before Wilson J, relying on post-operative ill-health, and argued that the adjournment should have been longer. He also argued that the Court of Appeal could set aside the subsequent orders made by Bracewell J and the District Judge. The central issues were whether the medical evidence gave an arguable basis for challenging Wilson J’s discretion and whether the later hearings were consequently rendered ineffective.

1. Permission refused. The application had no reasonable prospect of success. The Court of Appeal was concerned only with Wilson J’s order, not with the merits of Bracewell J’s dismissal of the underlying interlocutory appeal or the District Judge’s substantive orders.
2. In children cases, time is of the essence. A final hearing fixed for a substantial period should be preserved unless good reasons require vacation. The burden rests on the party seeking an adjournment to show genuine incapacity through ill-health. The court should scrutinise attempts to obtain an adjournment by collateral means, particularly where the application would postpone a long-running case.
3. Wilson J was entitled to conclude that the medical material did not establish that the appellant was unable to attend or prepare his appeal. The appeal from the District Judge was to be argued, rather than determined by evidence or dependent on the appellant’s physical presence. Wilson J nevertheless adjourned it briefly and permitted written submissions, leaving the appellant an Article 6-compliant opportunity to present his case. The appellant did not use that opportunity and did not apply to the District Judge to adjourn the final hearing.
4. The possible consequential effect of an interlocutory appeal on later orders arises only in highly unusual circumstances. Each order involved a separate exercise of discretion by District Judge Segal, Wilson J, Bracewell J and District Judge Roberts. A successful challenge to Wilson J’s order would not automatically set aside the later orders. The later medical evidence might have been relevant to the final hearing, but that issue was not before the court because no application to adjourn had been made to the District Judge.
5. The authorities, including Dick v Piller [1943] 1 All ER 627 and Telnaz v Wandsworth Borough Council [2002] EWCA Civ 1040, did not assist on these facts. The application was refused.

• Court of Appeal (Civil Division): Lord Justice Wall renewed the appellant’s paper application for permission to appeal against Wilson J’s order of 26 April 2005 and refused permission on 14 July 2005.
• High Court, Family Division: Wilson J adjourned the appellant’s appeal from District Judge Segal to 5 May 2005, with provision for written submissions.
• High Court, Family Division: Bracewell J heard and dismissed the appeal from District Judge Segal on 5 May 2005.
• Principal Registry of the Family Division: District Judge Roberts made residence, contact, financial and costs orders after the substantive hearing on 9 and 10 May 2005.