M (Children), Re

When a party seeks an adjournment of a fact-finding hearing in contact proceedings, the court must confine its discretion to issues arising at that preliminary stage. It must not determine the ultimate welfare merits or dismiss the whole application prematurely. Where inability to attend is medically corroborated and there is no history of non-attendance, the proper course may be a short adjournment, with clear warning that any further adjournment will require full corroboration and exceptional circumstances. If delay is central to the decision, its nature and likely duration must first be ascertained. Premature dismissal may deny the party a fair trial.

Parents were engaged in contested contact proceedings concerning their two younger children. The father sought an adjournment of a fact-finding hearing because he was medically unfit to give evidence following a deterioration in his mental health. His condition was corroborated, and he had previously attended court hearings. The Wandsworth County Court refused the adjournment and dismissed the contact application in its entirety, relying on delay, the history of violence and the apparent weakness of the father’s case. Permission to appeal was refused below, but an oral appeal hearing was ordered. The central issue was whether the judge had acted prematurely by determining the ultimate welfare outcome when only an adjournment of the fact-finding stage had been sought.

1. Appeal allowed. Lord Justice Thorpe delivered the judgment and Lord Justice Wall agreed. The contact application was restored, with the hope that it could be re-listed at the earliest opportunity.
2. Where the application concerns an adjournment of fact-finding, the court must focus on the preliminary stage actually before it. It must not take into account issues that properly arise only when the welfare merits are later determined. The judge had correctly recognised that welfare disposal could not proceed before fact-finding was completed, but failed to confine his discretion accordingly.
3. Delay could not properly be treated as decisive without first ascertaining its nature and likely duration. The court office might have shown that the matter could be re-listed shortly, or that the case had settled.
4. On the facts, the father’s inability to attend was medically corroborated and there had been no previous failure to attend court. Dismissing the entire application at that stage was likely to deny him a fair trial. The only acceptable course was a short adjournment, with clear warning that attendance at the next hearing was essential and that any further adjournment would require full corroboration and evidence of exceptional circumstances.
5. Thorpe LJ added, in passing, that the court welfare officer’s essential contribution would be at the welfare stage rather than at fact-finding. The court also expressed the hope that the parents might use mediation.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 1216, the appeal from the Wandsworth County Court was allowed by Lord Justice Thorpe, with Lord Justice Wall agreeing. The contact application was restored.
• Wandsworth County Court: His Honour Judge Winstanley refused the father’s application to adjourn the fact-finding hearing and dismissed the contact application in its entirety. Permission to appeal was refused.