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Sick note

I had to research this issue for a real case last week, and because it was quirky and hard to winkle out, I thought I’d share it.

It does happen from time to time that a party to Court proceedings is too ill to participate in a key hearing, perhaps even the final hearing, and seeks an adjournment. Sometimes they really are ill, sometimes they are pulling a Ferris Bueller.

 

 

“You fake a stomach cramp, and when you’re bent over moaning and wailing, you lick your palms. It’s a little childish and stupid, but so is the Family Court….”

 

What is needed is a doctor’s note. No doctor’s note, no adjournment. But what if there is a doctor’s note? How is the Court supposed to decide whether to grant the adjournment or not.

 

Oddly, I couldn’t find any reported family law cases saying how bad the illness has to be, or what test the Court has to apply. It turned out the relevant case law was a Probate case, and not a very old one either. Levy v Ellis-Carr and others 2012

 

We’ll come back to it. I’d like to share with you my story of the worst ever application for an adjournment I had to make.  It was a private law case, my client was going down like the Hindenberg, and it was the final hearing. Two days before, my client rings me and says that he can’t come to the final hearing, it needs to be put off. For a few months. I explain that I’ll need a doctor’s note, and he gives me a sigh which is intended to convey to me how utterly unreasonable I am being.

I receive the doctor’s letter minutes before I need to set off to Court, so I slap it on the photocopier, do 3 copies and start walking down to Court with my bundle.

The first paragraph of the letter reads like this, in type

 

I saw Mr J on 12th March 2009. He had a headache.”

[I’m thinking that this probably doesn’t cut it, but wait. In handwriting, familiar handwriting, the same handwriting as I’ve got in my bundle on the various threatening letters sent by my client to the children’s mother, there’s an annotation”]

“and a broken leg”

 

Next paragraph, in type :-  I recommended aspirin for his headache.

Handwriting floating above the sentence, as though the doctor had forgotten this and added it afterwards, silly doctor.

Handwriting “And I put his leg in plaster

Type :- As the headache was very minor, he would be perfectly able to attend Court.

Handwriting “But not with his broken leg, which means that he can’t come”

 

I had to hand this in to the other side, who had the decency to do all of their laughter in another room, and then later to the Judge.

I was not successful in my application. My client rang later that day to ask if his contact for the weekend was still on. He lived a four hour drive from the children.

“But Mr J, ” I said, “How will you drive all that way with your broken leg?”

“Oh that,” he said, “It’s got better.”

 

Anyway, here’s the authority.

 

Levy v Ellis-Carr and Others 2012

http://www.bailii.org/ew/cases/EWHC/Ch/2012/63.html

 

In this case, the appellant wanted an adjournment of a hearing, and produced a doctor’s letter

 

 

  • First, there is a letter from a Doctor dated 24 May 2011 (the date of the hearing before Registrar Derrett) which says :

 

“The above named saw me today very distressed and upset with multiple problems. My diagnosis is that he is suffering from anxiety depression. And he is prescribed medication for it. If his problem persist or get worse I will refer him to a Consultant Psychiatrist.”

The Court refused the adjournment, and he appealed it.

The High Court, in the form of Norris J, dealt with this aspect of the appeal like this.

  • 32. I will deal first with the ground of appeal which asserts that the Registrar erred in law in failing to grant an adjournment. This ground is directly related to the Appellant’s failure to attend the trial. The decision whether to grant or to refuse an adjournment is a case management decision. It is to be exercised having regard to the “overriding objective” in CPR 1. Showing that the exercise of discretion was outside the generous ambit within which there is reasonable room for disagreement is not an easy task: see Khudados v Hayden [2007] EWCA Civ 1316. In Fitzroy Robinson v Mentmore Towers [2009] EWHC 3870 (TCC) Coulson J at paragraph [8] set out some of the factors that might be relevant to an 11th hour application to adjourn a trial. But each case must turn on its own facts (and in particular upon how late the application is made).
  • Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge. The decision must of course be a principled one. The judge will want to have in mind CPR1 and (to the degree appropriate) any relevant judicial guidance (such as that of Coulson J Fitzroy or Neuberger J in Fox v Graham (“Times” 3 Aug 2001 and Lexis). But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight. For my own part, bearing in mind the material upon which and the circumstances in which decisions about adjournments fall to be made (and in particular because the decision must be reached quickly lest it occupy the time listed for the hearing of the substantive matter and thereby in practice give a party relief to which he is not justly entitled) I do not think an appeal court should be overcritical of the language in which the decision about an adjournment has been expressed by a conscientious judge. An experienced judge may not always articulate all of the factors which have borne upon the decision. That is not an encouragement to laxity: it is intended as a recognition of the realities of busy lists.
  • In the instant case the Appellant has to demonstrate that on the material then before her the Registrar exercised her discretion wrongly as a matter of law, and he has also to demonstrate that in fact he had a good reason not to attend the trial.
  • In my judgment there were ample grounds upon which the Registrar could properly refuse the adjournment (whether she expressly referred to them or not). There was a history of making applications for adjournments at each stage. The hearing before her was itself a re-listed hearing. There was evident non-cooperation in preparing for the trial. Even on the Appellant’s own case he had made his application for an adjournment at the last possible moment. He adduced no medical evidence. His solicitor deliberately withdrew instructions from Counsel and told Counsel not to attend the hearing. The solicitor on the record made a conscious decision not to attend the hearing. The application was already a year old (partly because the Appellant had sought adjournments to put in evidence and had then not done so) and related to a bankruptcy that had commenced in 1994. The Court could if the hearing proceeded take into account such evidence as he had adduced (even if it did not have the benefit of the criticisms he wanted to make of the trustee’s case all the benefit of any argument he wanted to advance in support of his own). The Appellant would always have available the opportunity afforded by CPR 39.3.
  • Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.
  • The Appellant complains that the failure to grant the adjournment is a breach of his human rights. The complaint is misconceived. The Appellant’s right to a fair trial means that he must have a reasonable opportunity to put his case. He had that right on 9 February 2011 (but asked the Court to postpone it). He was urged to exercise that right by the trustee’s solicitors on 23rd May 2011: but he and his legal representatives chose not to avail themselves of it.
  • This ground of appeal fails.

 

The medical evidence which the person seeking an adjournment relies upon is to be treated as a piece of expert evidence. The Court does not HAVE to accept its conclusions. It has to contain with particularity (details) what the medical condition is, why that prevents participation in the court process, provide a future prognosis, and set out that the author of the report (a) has examined the person (b) has made the diagnosis of the medical condition and on what basis and (c) is qualified to do so.

 

If the medical evidence comes up to those standards, the Court will then consider the adjournment based on the over-riding objectives set out in the Family Procedure Rules

 

1.1.—(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable—

(a)ensuring that it is dealt with expeditiously and fairly;

(b)dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)ensuring that the parties are on an equal footing;

(d)saving expense; and

(e)allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

Obviously with a genuine medical complaint, there’s a tension between resolving the case ‘expeditiously’ and resolving it ‘fairly’ and it will be for the Judge to decide on which side of the scales the particular application for an adjournment falls.

 

In Care proceedings, an application for adjournment that would take the case beyond 26 weeks has the additional hurdle of the revised section 31 following the Children and Families Act 2014 which set the duration of care proceedings as 26 weeks, and that a party seeking to extend the proceedings beyond that has to show that it is NECESSARY

 

5)A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

(6)When deciding whether to grant an extension under subsection (5), a court must in particular have regard to—

(a)the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b)the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

25 responses

  1. Stella aka Toni Macleod

    Pfft a headache and a broken leg don’t make me laugh !

    I asked for an adjournment for a final hearing due to actually GIVING BIRTH to an actual person who was immediately rushed to ICU on life support and was advised to have his last rites read at 2.30am the morning of the hearing and was to no it wasn’t sufficient grounds despite me being a litigant in person !?

    Is there any wonder I refer to judge Hallam as a C u next Tuesday !?

    They continued regardless Echr 6 & 8 utterly disregarded !

    Stella xx

    • ashamedtobebritish

      How many mothers do we know personally, that have had a c-section, only to be hauled in front of a court 2 days later, breasts dripping with milk and a large wound across their stomach after major surgery?

      Hormonal and in pain, yet supposedly fit to digest and understand the proceedings around them?

  2. I could not go to family court as the family law gave me an extreme form of PSTD, it “turned me into a NEWT.”

  3. Doctors tend to have a “season ticket on the line of least resistance” (as Leo Amery said of Asquith, it’s not original) and write a certificate because it is easier. The trick for the other side is to write to the “sick” party of that party’s solicitors consenting to an adjournment but saying that next time the doctor will have to be called to testify – and CC THE DOCTOR. Our medical friend won’t like that. Suddenly saying No becomes an easier option than writing another certificate. The file is noted. The doctor says No. The hearing is not adjourned again.

    Works every time. And they don’t teach that in any College!

  4. How on earth is a LIP or the GP supposed to know what is required by the judge. Quite frankly it is similar to the farce of a work capability assessment where unqualified persons overrule GP’s and Consultants. Judges are not medically qualified and by refusing adjournments they put peoples health at risk.

    • So a busy GP scribbles a few bog-standard words and a signature on an NHS form and abracadabra! the other side must automatically wait for justice.

      I don’t think so.

    • There’s a line in the Decker v Hopcraft 2015 that Shaun linked to, which may help a Litigant in person

      22.A court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application (Fox v Graham Group Ltd, The Times, 3 August 2001 per Neuberger J, as he then was).

      Suggesting that the starting point would be to grant a short adjournment with the litigant in person being told what he or she would need to produce to satisfy the Court that a longer adjournment should be made. Less leeway for a represented party, who are presumably going to be up to speed on Probate law (and Decker v Hopcraft – defamation law).

      Luckily, they can now look it up here.

  5. This often bothers me in ICO applications for a newborn. I have never been instructed to ask for an adjournment, but often the options for Mum are to attend having just given birth with all the physical and hormonal upheaval of that in and of itself, or not to attend because they are recovering and submissions are made in absence. I’m not convinced that either option is “fair”. But I’m not sure what the alternative would be – a convalescent home where Mums can remain under 24 hour supervision until they are able to attend court? I can hear the “resources argument” being yelled from here.

    • A very good question, particularly with C-sections. I think there would need to be a very clear doctor’s letter making it clear that there are compelling medical reasons why mum can’t attend. Obviously the problem is an inability for the Court to direct the hospital to keep a bed for mum and baby for 7 days or 10 days or whatever.

      • Stella aka Toni Macleod

        That answer shall soon be answered on the rights or wrongs of doing a hearing in a LIP mothers absence following a c section

        Currently awaiting an answer from a LA in regards to no hearings taking place until 6 weeks post birth due to that very reason obviously it’s case specific actual parenting and care not being the concern nor substance issues etc so essentially not Eligible for immediate removal at birth regardless but ….. All the same the outcome will be interesting

        However why shouldn’t in these cases la’s under echr 6 & 8 be made to wait if the circumstances allow them until all parties are on a even footing To apply for an ico etc as long as cooperation in the form of a written agreement is accepted after all they are meant to be putting the families needs first !

        Stella X

      • Annoyingly, even if the LA WANTED to not issue until 6 weeks post birth and the child was safe at the hospital, they would now be in difficulties because of https://suesspiciousminds.com/2016/03/03/and-the-office-boy-kicked-the-cat/

        Nottingham City Council v LW and Others 2016

        http://www.bailii.org/ew/cases/EWHC/Fam/2016/11.html

        The message must go out loud and clear that, save in the most exceptional and unusual of circumstances, local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.

        It is of course interesting that adoption statute recognises that a mother in the first 6 weeks after birth is not in a position to consent to her child being adopted, and as I understand it, cognitive assessments won’t generally be done in that period for similar reasons about the surge of hormones and chemical influences on the mind. But these things are given no real regard in care proceedings, and removals and critical hearings often take place within days (or hours) of the child being born.

      • Stella aka Toni Macleod

        Essentially yes but as I said this one would be case specific due to no immediate harm threshold crossed proceedings and yes adoption are sought but they can’t justify adoption as their threshold for removal at birth

        Stella X

      • “local authorities must make applications for public law proceedings in respect of new born babies timeously and especially, where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth.”

        Yes OK but that does not always have to be for removal/care orders does it, especially in risk of future emotional harm cases? Why could they not say go for a supervision or other order even a mother and child unit etc and escalate later if the court deems needed?

      • ” where the circumstances arguably require the removal of the child from its parent(s), within at most 5 days of the child’s birth”

        “arguably”? But a one sided argument is not an argument and if that is so tends to be evaluated latter.

        For me such an argument should be presented to parents long before birth if that is a LAs intention, even though it cannot be before birth in court, this way submissions can be be made in answer whilst a mother is incapacitated other wise it acts like an ambush.

      • I think what the High Court are saying is if the LA are making that argument, they need to issue within 5 days, not that the argument would necessarily succeed. That was a curious case where because the child was unwell and had to stay in hospital, there was loads of time to make the application on proper notice to the parents and time to have a proper argument in Court about the way forward, but the LA delayed in issuing and it ended up being a rush job which was unfair on the parents – very short notice, not enough court time to do the case properly etc.

      • And yes, save in very very very exceptional circumstances, the parents must be told a decent time before the birth (at a meeting where they have lawyers) that the social work plan is for removal.

      • I am sorry but in the case ” that the social work plan is for removal.” at birth just letting them know that does not cut it for me, it has to be with copy of the application and evidence draft etc etc well before hand, so it can be responded to at the time of application by being able to be prepared well in advance, otherwise for me its still like an ambush even days after the birth.

        It would make an interesting HRA case to say that to do otherwise is fair etc

      • Doesn’t seem unfair to me, as long as there is the opportunity to update. It would be a massive shift, but it would become second nature over time, and agree it would be fairer. I would much prefer initial hearings to take place with both sides having done statements for Court.

      • Stella aka Toni Macleod

        Paul cases have been done where the LA were told to serve sw reports threshold and evidence against the parent in 4 weeks advance of birth due to known complications to enable the parent to submit arguments against their decision prior to birth

        The LA failed to bother and as a result their attempt was severely blighted when they attempted to disrupt parent access to the baby while in hospital when the mother got a judge for emergency relief on a Saturday afternoon

        End result was the mother AND baby walked out of hospital still no orders in place at all some 8 weeks later and then when their demands failed to get mother to stay in hospital a further 3 days for the hearing to be listed they had to wait with no orders in place at all while mother and baby were at home free to do as they wished and their arguments for removal there and then failed at the first test as mother had had by that point the baby in her sole care for 9 weeks no concerns raised all reports of her care were “without criticism”

        Ironically there case would have failed anyway as they didn’t bother doing any safeguard checks at all during those 3 days at home mother choose to ensure she visited more than a dozen none LA related professionals during those days to cover her own ass though ! Lmao

        Case ended in adoption future risk of emotional harm bs as usual but at least they had a chance to get some memories together

        Stella X

      • “Doesn’t seem unfair to me, as long as there is the opportunity to update. It would be a massive shift, but it would become second nature over time, and agree it would be fairer. I would much prefer initial hearings to take place with both sides having done statements for Court.”

        Thank you,

        Given the nature of pregnancy there would normally be time to prepare in advance and of course updating in good time due to developments or changes etc would be reasonable.

        I think the issue is it would probably take an HRA application to bring about such a generic global sea change. I doubt LAs would be likely have much enthusiasm to do it voluntarily, though one enlightened LA legal dept could lead the way, I can hear much applause from various quarters if such a one did. 😉

        I do not see any such thing being Gov legislative policy.

  6. Shirley Buckley

    Here I am again- CoP 2006 . I was 71 lived in Solihull, reasonably fit. Journe to CoP-up at 5am caught 7am train to London tube in rush hour to Charing Cross, walked to Court for 9.30-return journey same in rush hour, long wait for train at Marylebone, same next day. OK until October 2007, hurt my knee, couldn’t walk, informed Judge’s clerk. Hearing proceeded without me, Judge put a penal notice on me in my absence. I was a litigant in person. Final hearing June 2008, arthritis in hip began, could not walk, doctors letter to Court, hearing proceeded without me. 2009 hip replacement. 2011 Hearing for review – in the meantime I had fallen and broken my wrist, fallen and broken my shoulder – doctor’s certificate – hearing without me, Judge made decisions that were very hostile to me. Hearing 2014 – I was just too old and decrepit to undertake long journey, judge made order in which he suggested the LA might have cause to restrict my contanct with my son, and those looking after him – published judgment recording this. Stella,and real person are correct in what they state. Sorry foor the typos – too tired to hit the keys properly ah me old age

    • Oh thank you very much Shaun. That’s got some really important additional points in it, so I’ll set them out

      26.In the context of what amounts to proper medical evidence it is pertinent to note two points made by Vos J in the Bank of Ireland case. At [19], referring to a GP’s letter running to some 11 lines which confirmed that the defendant had been signed off work for three weeks, he said this: “It is important to note that a person’s inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be.” At [58] Vos J indicated that he took into account the contents of the defendant’s litigation correspondence, observing that he “has been communicating with the court and with the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case”.

      27.The third main qualification to Neuberger J’s observations in Fox v Graham is one that is implicit, if not explicit in what Norris J said in Levy v Ellis-Carr: the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how.


      28.Fourthly, the question of whether effective participation is possible depends not only on the medical condition of the applicant for an adjournment but also, and perhaps critically, on the nature of the hearing: the nature of the issues before the court, and what role the party concerned is called on to undertake. If the issues are straightforward and their merits have already been debated in correspondence, or on previous occasions, or both there may be little more that can usefully be said. If the issues are more complex but the party concerned is capable, financially and otherwise, of instructing legal representatives in his or her place and of giving them adequate instructions their own ill-health may be of little or no consequence. All depends on the circumstances, as assessed by the court on the evidence put before it.

      29.The fifth point that may be of significance here is that, sometimes, it may appear to the court at the outset or after hearing some at least of the rival arguments that in truth the matter before it is one on which one or other side is bound to succeed. The closer the case appears to one or other of these extremes the less likely it is that proceeding will represent an injustice to the litigant. Thus, in Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516 the Court of Appeal proceeded with the hearing of an appeal on the basis that it would refuse an adjournment if it concluded, as it did, that the appeal had no real prospect of success. This appears consistent with the conclusions of Neuberger J in Fox v Graham that where the court refuses a litigant in person an adjournment it may proceed in his absence if satisfied either (a) that it is right to grant the applicant the relief sought or (b) that the application is plainly hopeless

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