M (A Child)

A court’s duty to manage proceedings and avoid delay cannot override its duty to secure a fair trial for a litigant whose disability impairs effective participation. Where expert evidence identifies necessary protective measures for a vulnerable witness, the court must determine the application promptly and engage with the essential recommendations. A provisional approach which allows the trial to proceed without adequate support, followed by a retrospective assessment after the evidence, may breach Article 6. Where that breach affects a fact-finding hearing, the proper course may be a retrial despite the resulting delay.

The father appealed against findings made by Her Honour Judge Marshall in the Swindon County Court that his 18-month-old daughter had suffered non-accidental injuries and that he was responsible.

The father had very limited intellectual capacity. Although he remained capable of giving evidence, a psychologist described him as a vulnerable and suggestible witness and recommended protective measures, including a supporter or intermediary, a screen or video link where needed, and assistance to understand questions. The judge declined to adjourn, adopted a provisional approach, and allowed the father to give evidence with his guardian ad litem attempting also to act as intermediary.

The central issue was whether the handling of the father’s participation and evidence breached his Article 6 right to a fair trial.

Decision

1. Appeal allowed. Lord Justice Thorpe, with whom Lord Justice Rimer and Mrs Justice Baron agreed, held that the fact-finding hearing had breached the father’s Article 6 right to a fair trial. A retrial was therefore required.

2. The father’s disability and the expert evidence required the court to consider carefully what support was necessary to enable him to give reliable evidence. The judge was entitled to manage delay in care proceedings, but that general responsibility could not override the obligation to secure a fair hearing and provide support needed to compensate for disability.

3. The judge erred by failing to rule specifically on the application made before trial for an adjournment and protective measures. A policy of proceeding to see how matters developed was a high-risk form of judicial management. It could result in a late adjournment after the trial had already been compromised and court time wasted.

4. The makeshift arrangement, under which the guardian ad litem also attempted the unfamiliar role of intermediary, was unsatisfactory. Those roles were liable to conflict. The judge also failed adequately to address the psychologist’s core evidence about essential protection, including why the straightforward measure of a screen had not been provided.

5. It was also wrong to defer the capacity issue until after the father had given evidence and to resolve it in the final judgment. Although a retrial of a fact-finding investigation was unattractive, it was the necessary consequence of the Article 6 breach.

• Court of Appeal (Civil Division) — Allowed the father’s appeal and required a retrial of the fact-finding hearing: [2012] EWCA Civ 1905.
• Swindon County Court — Her Honour Judge Marshall found that the child had suffered non-accidental injuries and concluded that the father was responsible.