F (A Child : Adjournment)

A case-management decision to list an important final hearing during a party’s last month of pregnancy must be governed by fairness and justice. Welfare and delay remain relevant but are not automatically paramount. Applicable Equal Treatment Bench Book guidance should be considered. It advises sensitive listing and that a woman in the last month of pregnancy should not be expected to attend unless she feels able. Remote attendance remains attendance at court and must permit full participation. The court must examine the actual consequences of postponement and explain why delay justifies requiring the hearing to proceed. A general promise of breaks cannot cure an inappropriate listing.

The mother appealed from the Family Court at Kingston-upon-Hull’s refusal to adjourn an imminent final hearing in long-running care proceedings concerning her nearly three-year-old son. The hearing had been listed for April, during the mother’s last month of pregnancy. She argued that her pregnancy, the importance of the hearing and the unavailability of her chosen advocate made fair participation impossible. The local authority, father and Children’s Guardian opposed the adjournment, relying on the child’s need for finality and the length of the proceedings. The central issue was whether the first-instance case-management decision fell outside the reasonable range of decisions open to the court.

The appeal was allowed. The order refusing the adjournment was set aside, the April hearing was vacated, and the matter was remitted for an early case-management hearing and a new trial date no sooner than early July. Lady Justice Carr agreed with Lord Justice Peter Jackson.

1. The listing and adjournment decision was a case-management decision. Such decisions attract a wide discretion, but an appeal may succeed where the decision falls outside the range of reasonable ways of proceeding and is therefore wrong. The assessment must be based on fairness, justice and relevant welfare considerations, following Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583.
2. The welfare paramountcy principle under section 1(1) of the Children Act 1989 applies to questions concerning a child’s upbringing, not to case-management decisions. The touchstone for case management is justice. Rule 1 of the Family Procedure Rules 2010 requires the court to deal with cases justly, having regard to welfare issues and ensuring expeditious and fair disposal. The delay principle and 26-week timetable remain relevant.
3. The Equal Treatment Bench Book guidance was applicable and should have been taken into account. It called for sensitive listing and advised that a woman in the last month of pregnancy should not be expected to attend unless she felt able. The absence of additional medical evidence did not weaken that guidance.
4. Remote participation still constitutes attendance at court and must allow full engagement with the process. The mother was entitled to expect the possibility of attending the hearing in person and to choose to attend court to give evidence. Regular breaks could not remedy an unsuitable listing.
5. The judge failed adequately to assess the mother’s anxiety, the importance and demands of the final hearing, the absence of her chosen advocate, and the actual consequences of further delay for the child. The hearing was a substantial final trial, not a short procedural hearing or an unavoidable protective interim hearing. The decision therefore fell outside the reasonable range of case-management decisions.

• Court of Appeal (Civil Division): Allowed the mother’s appeal, set aside the refusal of an adjournment, vacated the April hearing and remitted the matter for further case management and a new trial date: [2021] EWCA Civ 469.
• Family Court at Kingston-upon-Hull: On 12 March 2021 refused the mother’s application to adjourn the final hearing and directed that it proceed in April.