L (A Child)

A court deciding whether to adjourn a family trial after publicly funded representation has withdrawn must exercise a broad discretion. It should weigh unfairness to the applicant, prejudice to the respondent, the child’s welfare, public funding resources, delay and pressure on court resources. Fresh expert evidence that a litigant is vulnerable and unfit to represent himself may materially alter that assessment. Where proceeding without representation creates a real risk of an unfair trial, a limited adjournment to secure alternative representation may be required to protect the fair-trial guarantee in Article 6.

The father appealed against decisions of the Basingstoke County Court, where Mr Recorder Martineau refused to adjourn a child contact trial after the father’s publicly funded solicitors withdrew shortly before the hearing. The trial proceeded with the father acting in person, and an order was made under section 91(14) of the Children Act 1989.

On appeal, the father alleged a denial of justice and breach of Article 6. The Court of Appeal admitted fresh evidence from Dr Bowskill, including an opinion that the father had a paranoid personality disorder and was not fit to represent himself. The central issue was whether, in light of that evidence, the refusal to adjourn and consequent continuation of the trial were fair and lawful.

Appeal allowed. Lord Justice Thorpe gave the judgment, with Lord Justices Lloyd-Jones and Warren agreeing.

1. The decision whether to adjourn fell within a generous ambit of discretion. Relevant considerations included possible unfairness to the applicant, unfairness to the respondent, the welfare of the child, the need to husband public funding resources, delay, and pressure on the limited resources of the court.
2. On the material available to the Recorder, the refusal to adjourn was not outside that ambit. The fresh evidence materially changed the position. Dr Bowskill’s letter and medico-legal report showed that the father was vulnerable and, in the expert’s opinion, unfit to conduct the litigation without representation.
3. Had that material been available, the application should have been granted at least for a limited period. That would have enabled the father to preserve and transfer his public funding certificate to another firm, which could take over the prepared case.
4. P and Ors v United Kingdom [2002] 12 BHRC 615 laid down broad Article 6(1) principles relevant where disagreement between a publicly funded litigant and the legal team led to withdrawal of representation and refusal of an adjournment. The distinctions relied on by the respondent did not remove the force of those principles.
5. The appeal was therefore allowed and the father’s application was remitted for a trial de novo. The new trial should not ordinarily be before the Recorder. The prejudice to the respondent was acknowledged, but was the price of securing the father’s Article 6 rights.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the father’s application for a trial de novo.
• Basingstoke County Court: Mr Recorder Martineau refused adjournments, proceeded with the father unrepresented, and imposed a restriction under section 91(14) of the Children Act 1989.