B (A Child), Re

In a case-management decision, the need to determine children proceedings without delay does not displace a party’s right to a fair trial. Where a newly joined and seriously disadvantaged intervener faces substantial allegations, the court must give effective weight to the need for properly informed participation and adequate time to instruct legal representatives.

An adjournment may therefore be required despite inconvenience to other parties, disruption to counsel’s availability, and the general imperative of expedition. Requiring representation to proceed piecemeal in a complex fact-finding trial may deny the necessary level playing field and amount to an error of principle.

Care proceedings concerned allegations that a ten-year-old child had been sexually abused by her father and by Mr M, a tenant with serious learning and physical difficulties. Mr M was not initially joined as a party. He was brought before the court after failing to attend under a witness summons and was joined after the fact-finding hearing had begun.

After a psychological assessment established that he could instruct solicitors, his newly instructed leading counsel sought a short adjournment to consider extensive material and obtain instructions. His Honour Judge Corrie refused the application, balancing expedition and the mother’s representation difficulties against Mr M’s interests. Mr M appealed from that refusal.

1. Appeal allowed. Ward LJ, with whom Wall LJ agreed, held that the judge had erred in principle by failing to give overriding weight to Mr M’s right to a fair trial. Although the judge faced a difficult and substantially delayed case, expedition and the inconvenience to the mother arising from her counsel’s commitments could not justify an unfair trial.

2. Mr M had only recently been joined, was seriously disadvantaged, had only shortly before been found capable of giving instructions, and faced a large body of core material in a complex case involving allegations against him. It was manifestly unfair to expect his representatives to obtain instructions piecemeal as the trial progressed. A level playing field required a real opportunity for him to give informed instructions and participate fully.

3. The judge was not entitled to weigh Mr M’s failure to answer the witness summons as a basis for taking a more robust approach to the adjournment. The prejudice caused by inadequate participation could not be cured after the conclusion of the fact-finding trial.

4. Wall LJ agreed that the fair-trial issue had not received sufficient emphasis and that appellate intervention was justified. The trial was adjourned before HHJ Corrie and directed to resume on the following Thursday morning, allowing both the intervener and the mother adequate time to prepare with their representatives.

• Court of Appeal (Civil Division): Permission was granted and the appeal allowed: [2009] EWCA Civ 1243. The fact-finding trial was adjourned and directed to resume on the following Thursday.
• Oxford District Registry: HHJ Corrie, sitting as a judge of the High Court, refused on 21 October 2009 to adjourn the ongoing care proceedings to allow the newly joined intervener time to prepare and give instructions.