M (Children)

In family proceedings, the duty to avoid delay concerns avoidable delay. Where a hearing cannot fairly be completed within the time allocated, and no earlier alternative venue or listing is available, an adjournment may be unavoidable. The court is required to do what is possible, not what is impossible. Frustration caused by delay in resolving entrenched opposition to parent-child contact does not justify appellate intervention where the case-management decision was necessary for a fair hearing.

The proceedings concerned two girls who had not seen their father since late 2002 and had become opposed to seeing him. They lived with their maternal grandmother after their mother died in June 2006. Allegations of violence against the father had previously been rejected.

On 4 January 2008, HHJ Darwall-Smith adjourned the substantive hearing from April to 2 June because the case required four or five days and could not fairly be heard in the two days allocated. The father sought permission to appeal, principally because of the continuing delay. The central issue before the Court of Appeal was whether the adjournment was properly regarded as unavoidable.

Application refused. Lord Justice Hughes held that the father had no realistic basis for appealing against the adjournment.

1. The importance of avoiding delay lies at the heart of family justice, but the relevant concern is avoidable delay. Courts can do what is possible, but they cannot fairly conduct a hearing in less time than the case requires.
2. The county court judge had been told that four or five days were necessary. It would have been unfair to begin the hearing in April, use the two available days, and then adjourn part-heard for many weeks. The judge therefore had no proper alternative but to list the matter for 2 June.
3. The judge had also considered whether the case could be transferred or heard by a High Court judge. No earlier suitable listing was available; transfer would have required waiting until July. The adjournment was consequently unavoidable. Ward LJ had been right to refuse permission on paper, and the father accepted that conclusion.
4. The court recognised that it was unsatisfactory that the girls had not seen their father for so long and that the underlying issue required a decision. That did not make the substantive solution easy. Cases involving entrenched opposition to personal relationships are particularly difficult to resolve.
5. The question of representation was for the legal aid authorities, not the Court of Appeal. Hughes LJ nevertheless indicated that, given the complexity and concern raised by the case, the authorities might wish to reconsider representation by leading counsel. That observation did not affect the disposal of the application.

The formal order was: application refused.

1. Court of Appeal (Civil Division): Hughes LJ refused the father’s application for permission to appeal against the adjournment order.
2. Court of Appeal (Civil Division): Ward LJ had previously refused permission on paper.
3. Bristol County Court: HHJ Darwall-Smith adjourned the substantive hearing on 4 January 2008 to 2 June 2008 because the allocated hearing time was insufficient for a fair hearing.