E & O (Children)

In children proceedings, the court is not automatically required to await the conclusion of criminal proceedings. An adjournment is permissible where a discernible benefit to the children from delay can be identified. The discretion may properly be exercised where the person seeking residence is the proposed primary carer and a possible custodial sentence creates uncertainty about that person’s future availability. The welfare principle in the Children Act, section 1(2), remains central because delay is ordinarily prejudicial. The case must therefore be progressed and listed promptly. Permission to appeal against the discretionary adjournment was refused.

The father sought residence and related protective orders concerning three children who had previously lived with him, had been removed to Nigeria by their mother, and had later returned to this jurisdiction. Criminal proceedings against the father remained outstanding. Her Honour Judge Pearlman adjourned the family proceedings and directed that they should not be heard before 31 January 2006. The matter was subsequently delayed again.

The father applied to the Court of Appeal for permission to appeal, relying on the need for prompt determination in children proceedings. The central issue was whether the family court was entitled to defer final determination until the criminal proceedings were concluded, given the father’s proposed role as primary carer.

1. Disposition. Permission to appeal was refused because an appeal against the directions order had no realistic prospect of success. A directions hearing in the High Court was ordered for the first convenient date 28 days later, with the parents and any other interested parties required to attend.
2. The court recognised the principle in section 1(2) of the Children Act that delay in determining questions concerning a child’s upbringing is likely to prejudice welfare. That principle is fundamental, but it does not require every case to proceed to final determination while related criminal proceedings remain unresolved.
3. Following Re S Care Order Criminal Proceedings [1995] 1 FLR 151, the care court is not obliged automatically to await the outcome of criminal proceedings. An adjournment is permissible where a discernible benefit to the children from the delay can be identified.
4. This was an unusual case. The father put himself forward as the principal carer, while the criminal charges were potentially capable of resulting in imprisonment. Until those proceedings were resolved, his continuing availability to discharge the obligations arising from a residence order remained uncertain. In those circumstances, HHJ Pearlman was entitled to defer final disposal, and her order fell well within her discretion.
5. The court nevertheless stressed that the proceedings had to be dealt with urgently. The proper course was a directions hearing to establish an effective trial date and ensure that the case was ready, rather than an appeal against the discretionary adjournment. The court observed that the father lost no practical advantage because the lists made an earlier trial impossible.

1. Court of Appeal (Civil Division): On 11 May 2006, Mr Justice Hedley refused permission to appeal against the directions order and ordered a further High Court directions hearing.
2. Court of Appeal (Civil Division): On 13 February 2006, Wall LJ made an order on paper directing the father to focus on the family hearing then listed for 8 March 2006.
3. High Court, Principal Registry of the Family Division: On 9 September 2005, HHJ Pearlman adjourned the family proceedings and directed that they should not be heard before 31 January 2006, principally because criminal proceedings against the father remained outstanding.