F v M

A fair hearing requires protection against actual unfairness and against an objectively justified risk or appearance of unfairness. In proceedings involving an unrepresented party, an advocate who has previously engaged with that party in a professional capacity should avoid acting for the opposing party where that engagement creates such a risk. A particularised breach of confidentiality need not be proved. The court’s concern is the integrity and fairness of the proceedings, including the appearance of justice. Where the risk is established, the resulting decision cannot safely stand and the matter should be reheard with appropriate safeguards.

The father sought permission to appeal, and then appealed, against a child arrangements order made by Recorder Millington on 18 September 2024. The order provided that the child should live with the mother, spend time with the father in accordance with a schedule, and relocate with the mother to Hungary.

The appeal alleged serious procedural irregularity. The father maintained that counsel acting for the mother had previously discussed his case with him, invited him to provide the case papers, and indicated that she could represent him. Counsel later acted for the mother without the issue being properly addressed. The central question was whether that prior professional contact created an appearance or risk of unfairness sufficient to invalidate the hearing.

1. Appeal allowed. The child arrangements order was set aside and the case was transferred to the High Court for an expedited rehearing.
2. The right to a fair hearing protects against actual unfairness and against the risk or appearance of unfairness. The appearance of unfairness must be objectively justified. Equality of arms requires a reasonable opportunity to present a case without substantial disadvantage. These principles were drawn from Re C (Children: Covid 19: Representation) [2020] EWCA Civ 734 and P (A Child: Fair Hearing) [2023] EWCA Civ 215.
3. A particularised breach of confidentiality was unnecessary. The authorities, including R v Winston Smith (1975) Cr App R 128 and Kjell Tore Skjevesland v Geveran Trading Co Ltd [2002] EWCA Civ 1567, established that the court must protect the integrity of its process where an advocate’s prior connection creates a real risk of unfairness.
4. The court accepted the common ground that the father had approached counsel in her professional capacity, had contacted her about representation, had been asked to provide the electronic bundle, and had later discovered her acting for the mother. Those circumstances objectively created the appearance and risk of unfairness. The father’s immediate complaint was a genuine indication of that perception.
5. The court also relied on the principle that a duty of confidence arises where a person knows or ought to know that another can reasonably expect privacy to be protected, as stated in A v B plc [2003] QB 195. The integrity of the process required the appeal to be allowed, without deciding which conflicting account of the earlier conversations was correct.

• Recorder Millington, Central Family Court: made a child arrangements order on 18 September 2024 providing for the child to live with the mother, contact with the father, and relocation to Hungary.
• High Court (Family Division): granted permission to appeal on the procedural-irregularity ground, allowed the appeal, set aside the order and transferred the case for rehearing in the High Court.