GB (Children)

Whether refusing to adjourn care proceedings leaves an unrepresented parent without a fair trial is a fact-specific question. Fairness is assessed across the proceedings as a whole. Legal representation on every side is not invariably required.

The court must balance the parent’s opportunity to present a case against the child’s welfare and need for a prompt decision. If the hearing proceeds, the judge must, so far as practicable, promote equal footing and give proportionate assistance to the unrepresented party.

A mother appealed against care and special guardianship arrangements for three children. The principal determination had been made by HHJ Cahill QC in Leeds County Court after refusing an adjournment sought when the parents ceased instructing their legal team shortly before the final hearing. HHJ Rose subsequently made the outstanding special guardianship order for one child.

The mother contended that proceeding while she was unrepresented breached article 6 of the European Convention on Human Rights. She relied on her vulnerability, the volume of evidence, the importance of the proceedings and the requirement in rule 1.1(2)(c) of the Family Procedure Rules 2010 to place parties on an equal footing. She also argued that the findings might prejudice her position concerning any future child.

1. Permission to appeal was granted, but the appeal was dismissed unanimously. Fairness under article 6 of the European Convention on Human Rights had to be assessed both at the final hearing and across the proceedings as a whole. The mother had received extensive legal assistance before the hearing. The professional and expert evidence was consistently adverse to rehabilitation, including the evidence of the independent social worker instructed for the parents.
2. Decisions whether to adjourn for legal representation are necessarily fact-specific. The court must examine all the circumstances before the trial judge. Equality of footing under rule 1.1(2)(c) of the Family Procedure Rules 2010 does not itself entitle an unrepresented litigant to an adjournment or make refusal a breach of article 6.
3. The relevant balance was not governed by the paramountcy principle in section 1 of the Children Act. The judge nevertheless had to consider the children’s welfare and need for a timely decision alongside the fair-trial interests of the parents, children and local authority. The children had already awaited finality for a year. The trial judge knew the case, had previously warned that a last-minute change of representation would not justify an adjournment, and was entitled to refuse it.
4. Once the hearing proceeded, the judge had to combine adjudication and management of the hearing with practical steps to place the parties on an equal footing so far as possible. The judge had given clear and supportive assistance, retained the former lawyers temporarily, enabled the mother to obtain their advice, sought the attendance of key witnesses, permitted her to present her case fully and intervened where necessary to protect her procedural position.
5. The possible use of the findings in future proceedings concerning another child could not itself justify overturning orders concerning the children presently before the court. Future professionals should, however, remember that the mother had been unrepresented when the judge formed the recorded assessment of her.

• Court of Appeal (Civil Division): Permission to appeal granted; appeal dismissed unanimously: [2013] EWCA Civ 164.
• Leeds County Court, HHJ Cahill QC: Refused an adjournment, determined that the children could not return to their mother’s care and made the principal care and special guardianship arrangements in November 2011.
• Leeds County Court, HHJ Rose: Made the outstanding special guardianship order for K on 16 April 2012.