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The leave to oppose Tsunami

Posted on November 23, 2013 by suesspiciousminds

 

As anticipated,  since Re B-S showed practitioners that the historically high (perhaps even insurmountable) test for leave to oppose adoption applications had been too high, and too heavily weighted in relation to the factor of potential disruption to the child in placement, the appeals have started to come in. I understand that Ryder LJ has already spoken of a “tsunami” of appeals which are heading towards the Court of Appeal.

Here are two :-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1481.html

Re L (Leave to oppose making of adoption order) 2013

The Placement Order had been made in Feb 2012 and the child placed with adopters in March 2012 (so we are getting on for a year and a half in placement). As the Court of Appeal observe, an unusual feature of the case is that the adopters had separated in the course of that placement – somewhat peculiarly they were jointly pursuing the adoption application though had not decided between themselves who the child was to live with. Early on in the court proceedings the prospective adoptive mother dropped out, leaving Mr X as the prospective adoptive father to carry on with the adoption application as a sole carer.

 

The Court of Appeal considered that the trial judge had not properly weighed the ultimate prospects of M succeeding in her application given the backdrop of uncertainty and change in the prospective adopters situation.

 

    1. When a judge considers a parent’s prospects of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make, having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.

 

    1. The judge deciding the adoption application would need to approach the hearing bearing in mind what McFarlane LJ said in Re G (supra) about the dangers of a linear approach to decision making in child care cases. He would have to make “a global, holistic evaluation of each of the options available for the child’s future upbringing” (Re G §50) before determining what would serve the child’s welfare throughout his life. In the present case, the strengths and the weaknesses of M’s situation would have to be considered in isolation, as would the strengths and weaknesses of Mr X’s situation, and, as McFarlane LJ said in §54 of Re G, each option would have to be “compared, side by side, against the competing option”. This exercise would have to be carried out remembering that adoption is only to be imposed where that is necessary, as the Supreme Court underlined in Re B [2013] UKSC 33.

 

    1. An option that might appear not to be in a child’s interests in one context might, by this process of global, holistic evaluation, carry the day in another context. Here, M’s case that she would be able to care for S, or alternatively that there should at least be a further assessment of her ability to do so, would not fall for consideration, as is usually the case, alongside a settled and stable adoptive placement which had been going on for some time. The competing option would involve an adoptive household which has been subjected to protracted disruption and uncertainty which is yet to be completely resolved. First, there was the separation of the adopters, then the change from a joint adoption to an adoption by Mr X on his own, with Mrs X withdrawing from S’s life completely. Mr X’s new relationship and the anticipated baby changed things again and there still remains the outstanding dispute over where Y will live. Even once that is resolved, it will no doubt take some time for the X family as a whole to learn to live with the consequences of these extensive changes. That there is uncertainty in both options, not just in M’s situation, may turn out to be a very important feature in determining what will serve S’s welfare throughout his life.

 

    1. It seems to me that where the judge went wrong was in failing to consider whether the uncertainty in the adoptive household might improve M’s prospects of success and to make allowance for that. Putting it another way, what I think was missing was a consideration of M’s present position in the context of the disruption and uncertainty in the X household.

 

    1. Although he went as far as contemplating that the adoptive placement with Mr X would not ultimately succeed, the judge dealt with that possibility by making the assumption that, in those circumstances, S would be moved by the local authority to carers whose parenting abilities were at least good enough and probably better than good enough (§56) and that, although there may be delay whilst they were identified, S would be cared for meanwhile “either by approved foster carers or by potential adopters known to have adequate parenting skills” (§59). Even if not entirely apposite to the legal situation arising here, one question that might at least have generated the right sort of consideration is whether, in the event that Mr X’s adoption application were not ultimately to succeed, as the judge contemplated was possible, it may in fact be appropriate to pursue further the possibility of a placement with M rather than S being placed forthwith by the local authority with an alternative adoptive family as the judge assumed would happen.

 

  1. I do not think the judge can be criticised for being cautious about a return to M on the evidence as it stood. He said that it would be “experimental” and did not think it likely to succeed (§57). However, he appears to have been looking for quite a high degree of present certainty in this regard, speaking for instance of M being unable currently to “satisfy” the court of her abilities (§58). The degree to which a court needs to be confident about a parent’s abilities at the section 47(5) stage is likely to vary, in my view, depending on the other circumstances of the case and I say a little more about this in the final paragraph of this judgment. Where the other option under consideration also has significant uncertainties, a lesser degree of confidence may sometimes justify the granting of leave and it seems to me that that was so here. In such circumstances, it may also be that greater allowance might be appropriate for the fact that there has not been an opportunity for the evidence to be tested (both that in favour of M and that which may undermine her case).

 

NOTE that this case didn’t get sent back by the Court of Appeal for re-hearing (i.e the judgment needed work) but the Court of Appeal instead granted the leave, and the contested adoption hearing will therefore take place. (That’s a step farther than Re W – though that case clearly laid the foundations for the Court of Appeal making such a decision). The Court also emphasise that although the impact on the placement isn’t as heavy a consideration for the second stage (the welfare decision) as previously considered, the stability and duration of the placement could be weighed in the balance when determining the solidity of the mother’s application (an otherwise solid application could flounder on that particular dimension)

    1. Nothing that I have said in this judgment should be taken as any indication of a view of the ultimate strengths and weaknesses of Mr X’s application or (apart from the preliminary determination necessary for section 47) of M’s case. The evidence is not yet complete either in relation to Mr X’s circumstances or M’s, and none of it has yet been tested.

 

  1. I would like to add a final few words of more general application than just this case. I am very conscious of the difficulties inherent in applications under section 47(5). The relationships and hopes of not just one family but two are imperilled and the material upon which the decision has to be taken is, of necessity, often far from complete and not infrequently has not been tested in a hearing with oral evidence. I have not intended in this judgment to be prescriptive as to the way in which such applications are handled by the expert family judges who resolve them with skill and sensitivity. Each case depends upon its own facts and the circumstances of individual cases vary infinitely. Where, for instance, a child has been placed with adopters for a protracted period, is well settled, and remembers nothing else, a court may well take the view that there has to be a degree of confidence about the parent’s ability to provide a suitable home for the child before it can even contemplate assessing the parent’s prospects as solid. And the cases show that the overall circumstances of the case may be such that the court may decide not to grant leave even where there is some confidence in the parent. Re B-S was an example of a mother who had achieved “an astonishing change of circumstances” (Re B-S, §3) but did not get leave to oppose adoption because of the situation of the children (ibid, §102). Re C (A Child) [2013] EWCA Civ 431 was a case of a father who could have provided for the child’s physical needs but failed to get leave where the child (who was by then 4 ½ years old) had been settled with the adopters for over 2 years and had no relationship at all with him. At the other end of the spectrum, there will be cases in which the evident deficiencies in the parent’s case are such that, notwithstanding the existence of uncertainty or other issues in relation to the adoptive placement, the parent’s case is not solid enough to justify the grant of leave to oppose.

 

[It is interesting of course that two years of placement was considered this year, by the President no less in Re C, to be quite a clear cut-off point beyond which the Court would not possibly tamper with the placement, and six months later an 18 month old placement seems to count for very little : “ C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?“: )

The next one, the Court of Appeal dismissed the appeal – so one looks for clues and guidance within it

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1480.html

Re D (Leave to oppose making of an adoption order) 2013

The child had not lived with mother since May 2011, and Placement Order was made on 18th May 2012, placement with adopters Sept 2012  (note, six months LATER than in the appeal above that was granted)

The original court was satisfied that there had been a change of circumstances on mother’s part, thus satisfying the first limb of the two stage test, but decided that the circumstances did not justify reopening the case. Fairly naturally, in the light of the jurisprudence in the latter part of this year, the mother appealed.  In fact, she got silked-up (which suggests that public funding MIGHT have been obtained for her, would be interested to know that)

The appeal was effectively on the Re B-S, Re G and Re W grounds, that the Court had not properly weighed the mother’s prospects of success (which don’t have to be for return, they can be in persuading the Court to NOT make the adoption order), that the positive aspects of an alternative to adoption and the negative aspects of adoption had not been properly weighed.

    1. Although Judge Caddick in the present case did not use the word “solidity” in connection with his assessment of M’s prospects of successfully opposing the adoption, that was clearly what he was looking for, finding it lacking as we can see from his statement that it would be “highly improbable” that the court would say the position was sufficiently different to enable M successfully to oppose the adoption application.

 

    1. Was he wrong to assess M’s chances in this way and/or did he fail to demonstrate in his reasoning how he arrived at this conclusion, as Ms Connolly said?

 

    1. In answering this question, it is important to read the judgment as a whole. As the court observed in Re B-S (see §74(ii)), the question of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave are almost invariably intertwined and so they were here. The position that the judge reached, as he said expressly in §18, was that there had been a change in circumstances but that there were also features of the period following the making of the placement order which weighed against the progress that M had made, three in particular being identified in §§18 to 26 of the judgment. The judge’s concern about these was that the offence in June 2012 and the incident in February 2013 in particular indicated remaining immaturity on the part of M; in my judgment he was entitled to take that view, even allowing for the difficult circumstances in June 2012. HHe He rightly put these events into the context of M’s previous immaturity and, although he could perhaps have reasoned this stage in his decision making more fully, we can see, I think, from §38 that, quite independently of the question of how L would be affected by delay and/or the disruption of her placement, he concluded that the overall picture was such that M was unlikely to be able to establish that her position was different enough to persuade a court that it was in L’s interests to be placed with her. He had the particular advantage of having heard M’s oral evidence in which the events since the placement order were explored and it seems to me that he was entitled to arrive at this assessment, which deprived the M’s prospects of the necessary solidity.

 

    1. It was entirely appropriate that the judge should consider L’s circumstances and those of the adopters. Re B-S underlines that what is paramount in adoption decisions is the welfare of the child throughout his or her life and that it is important for judges not to attach undue weight to the short term consequences to the child of giving leave. It does not, however, say that even short term consequences for the child are completely irrelevant and they certainly are not. Similarly, Re B-S recognises that in some cases the adverse impact on the prospective adopters, and thus on the child, is something which may have considerable force (§74(ix)) although equally it is important that undue weight should not be given to the argument for the reasons set out in that paragraph.

 

    1. I do not accept the argument that the judge omitted to consider, or to give proper weight to, the benefits to L of being brought up by her own mother. That vitally important factor is recognised in §37 of the judgment, albeit in quite short form and without express reference to the provisions of section 1 of the Act. It was also stressed in the passage which, in directing himself on the law, the judge cited from Re P, which concludes with a statement that the paramount consideration of the court must be the child’s welfare throughout his or her life. As I see it, the core of the judge’s decision was that he just did not consider that the changes in M (for which he properly recognised she should be commended) were going to be sufficient to enable a court to conclude that she could bring up L at the present time.

 

  1. I have not been persuaded by the arguments so cogently advanced on M’s behalf that the judge erred in his approach to this case or failed to set out his reasoning for his decision sufficiently. I would accordingly dismiss the appeal.

 

As seems to be happening a lot in the latter part of this year, the decision then turns on the precise detail of the judgment, rather than principles which can be extracted. In Re B-S, the Court of Appeal felt that the judgment was robust enough, in Re W, they didn’t. In Re L they felt the judgment was wrong, in Re D, they didn’t.  {Comparing these two cases, in one the change was qualified by later blips  – Re D, the other wasn’t – Re L, and in one the placement was stable and secure – Re D, and in the other it was rather more uncertain Re L – so even without the judgments, one gets some sort of flavour of the task faced by mother}

I am beginning to wonder whether the publication, in anonymised form, of the original judgment ought to be considered with such appeals. Where the appeal turns on the quality and wording of the judgment, and Judges up and down the country need to know what “passes” and what “fails” it might be helpful to see them in full.

 

 

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“You’re fired! Now, can I have an adjournment?”

Posted on April 3, 2013 by suesspiciousminds

We seem to have had a recent flurry of Court of Appeal decisions about whether it is fair to press on with a final hearing where a parent parts company with their lawyer shortly before the hearing, or even in the midst of it.

This is an interesting dilemma, since obviously there’s a tension between wanting a fair trial and recognising that a parent who suddenly finds that they are representing themselves at the eleventh hour has more than they can realistically cope with, and having decisions made in accordance with the timetable the Court has fixed for the case (that being based on what the child’s timescales are)

On the one hand, it is important that parents who face the prospect of permanent separation from their child (a) HAVE a lawyer and (b) HAVE CONFIDENCE in that lawyer; on the other, if simply sacking your lawyer gets the hearing adjourned, then it would always be better to simply sack your lawyer at the morning of the first day, rather than INSTRUCT your lawyer to argue for an adjournment.

 [Also, if not having a lawyer gets you an adjournment, you can infinitely prolong the decision by sacking your lawyer every time you reach the final hearing, so there has to be a line drawn in the sand somewhere]

 alan sugar

There are two recent cases, with two different outcomes

Re L (A Child) 2013, where the decision to refuse an adjournment was overturned

http://www.bailii.org/ew/cases/EWCA/Civ/2013/267.html

Re GB (Children) 2013, where the refusal of the adjournment was approved.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/164.html

 So, in brief summary, the facts of the two cases :-

 In Re L, the father was having considerable difficulties with his solicitors and things reached the point where they indicated that they were no longer willing to act for him. This happened on the Friday, with the final hearing due to start on the Tuesday. His solicitors conveyed the full set of papers to him on Monday, but he was not at home, having had to set off to make the journey to the town in which the final hearing was to take place.

 The father had sought an adjournment, as although he was ‘wedded to not wanting to return to his previous solicitors, he was also wedded to having legal representation’ and was not seeking to represent himself.

Additionally, and pivotally, there was also a report from a psychiatrist, Dr Bowskill  (this having been a piece of information which caused quite a lot of the disruption between father and his solicitors) and was not presented at the initial final hearing, but was presented to the Court of Appeal.

 

  1. We have what the judge did not have, namely a letter from Dr Bowskill dated 6 September, in which he states shortly but pertinently:

“I have assessed Mr LL and confirm that my opinion is that he is not fit to represent himself in court.”

Beyond that, we have a full medico-legal report from Dr Bowskill dated on its face 20th, but actually signed and dated by the doctor 27 September 2012. What is important is paragraph 7.1, in which the doctor states:

“My opinion is that Mr LL has a Paranoid Personality Disorder, as defined in Section F60.0 in the International Classification of Mental and Behavioural Disorders, Version 10.”

Then in paragraph 7.10 and 11, he states:

“7.10 Given Mr LL’s Paranoid Personality Disorder, I do not believe Mr LL would be able to represent himself in a useful way in the court process. Judge Compston made his findings without being aware of Mr LL’s Paranoid Personality Disorder.

7.11 My opinion is that the degree of Mr LL’s personality disorder is that he would not be able to rationally respond to and address questions that would be posed to him during the Court process. Indeed, the Court process is likely to exacerbate his feeling of paranoia and persecution.”

 For the Court of Appeal, that tipped the balance –underlining mine

I would not myself conclude that the judge’s decision on 14 August and 15 August fell without the very generous ambit of discretion given to a judge who has to balance on the one hand possible unfairness to the applicant, on the other hand unfairness to the respondent in granting the application, to which must be added the all-important welfare dimension taking into account the interests of the child. Finally, there is the general point of public importance that public funding resources need to be husbanded. A transfer from firm A to firm B usually involves wastage and therefore increase in the ultimate bill to the public purse. And always, there is the risk of delay inherent in granting any adjournment and the additional pressure on the limited resources of the court in filling the time vacated and finding matching time elsewhere.

However, the importance of the fresh evidence must, in my judgment, be recognised. Had that information been available to the Recorder, had he had the letter of 6 September and even more the medico-legal report, he would have recognised that he had before him a vulnerable applicant, disadvantaged as a result of his disorder and one who in the opinion of an expert was simply not fit to litigate unrepresented. Accordingly, if he had available to him information available to this court, it is at the least arguable that he would have reached the contrary decision. Indeed, in my view had he had that material, the application required to be granted, at least to give the applicant a limited opportunity to ensure that the certificate was not lost, but transferred to an alternative firm, who would then simply have the relatively light task of picking up the trial from the point at which all the documentation had been prepared. And Mr Maitland Jones, who had only been stood down from his brief to represent on the 14th, would have been available to be briefed on some other day.

 

 

In Re GB, it seems that the parents lost confidence in their legal team shortly after the Issues Resolution Hearing  (a hearing at which their position was confirmed as being that that parents accepted that the 3 children would not be returning to their care, and that the time estimate for the final hearing was reduced by agreement from 5 days to 2),  but did not obtain fresh representation between the IRH and final hearing and had not taken any steps to do that.

They dismissed their legal representation and sought an adjournment to obtain fresh legal representation, which was refused, and thus found themselves in the position of being litigants in person. [Again the underlining is my own, for emphasis]

  1. Ms Sterling’s case before us today sought to highlight a number of aspects. First of all, the mother’s vulnerability before the court. In doing so, we were handed one page from what is obviously a lengthy report prepared by Mrs Westerman, a clinical psychologist who conducted an assessment of the mother. The page that we have sets out three paragraphs listing the outcome of a number of psychological tests that were undertaken. These indicated that the mother had an elevated score in a number of aspects, in particular in one test on the “paranoid scale of the severe personality pathology scale”. Another result indicated the presence of “depressive and masochistic personality traits”; and, generally, Ms Sterling submitted that these results established or at least strongly indicated that her client was a significantly vulnerable individual and not well fitted, or fitted at all, to be either a litigant in person in any proceedings or, more forcefully, the litigant in person in these proceedings in relation to her own history, her own functioning as a parent and the future of her own children.
  1. Ms Sterling also took us to no less than four occasions in the judgment where the judge either herself expressed the view, or quoted the view of professionals, that the mother lacked “insight” into the difficulties that were being raised against her in the proceedings. Ms Sterling also pointed out that this mother had herself had a very troubled time as a young person in the care system.
  1. As part of the task facing the mother at the hearing, she was required to cross-examine the psychologist who had produced this comprehensive report. Ms Sterling said in terms that it was just wrong for a person such as this mother to be required to cross-examine a psychologist in these circumstances. She said that for the judge to have established a trial where this took place was unfair, unjust and unkind.
  1. In support of the second ground of appeal, Ms Sterling having taken us in her detailed skeleton and in her oral submissions to other matters, stressed that the judgment of the court does not simply deliver the task of deciding what should happen to the three children before the judge in November 2011, it also has an impact upon any future child that this mother might have, because it would be taken as the starting point and given credence by the local authority in deciding whether the mother could be a safe or good enough parent for any future child. The submission was made that there was no urgency in the proceedings before the judge, that there was benefit in time being taken to allow for legal representation; the children were not going to be moving, and indeed have not moved, from the places that they were already established in at the time of the hearing and the judge should have given the mother the adjournment that she sought.
  1. Finally Ms Sterling took us to the detail of the task that the mother faced in conducting the hearing. She described it as a herculean task, not least because of the physical burden of the mother carrying the six or seven bundles of paperwork away with her for the first time from court at the end of the first day, travelling on public transport back to her home, reading them as best she could overnight and returning to court for the 9.30 start on the next morning.
  1. Ms Sterling also said that a reading of the transcript showed that to pack so much into the day and for the judge to hold, as she did at the beginning of the first day, that the hearing would finish “tomorrow” was to put too much pressure on the mother and led to the court driving the case forward at an unacceptable pace during the course of the second day.
  1. I asked Ms Sterling whether any criticism was made of the approach the judge took once the hearing had begun, other than the pace of the process, and to that request Ms Sterling indicated that the way in which the judge simply allowed the mother to ask very long narrative questions of the witnesses was in fact a detriment to the mother; it allowed her, to use Ms Sterling’s phrase, “to rant” in an unfocussed manner which almost became self-defeating of the mother trying to present a positive and wholesome picture to the judge

The Court of Appeal in both cases referred back to Re B and T (care proceedings: legal representation) [2001] 1 FCR 512 and cited the general principles about an adjournment application where the parents had become unrepresented [underlining mine]

 

  1. 45.   “17. The assertion by Mr Miss Booth that art 6 obliged the judge to discontinue on either 12 June or, if not then, on 14 June, seems to me to be an unrealistic submission. In this jurisdiction the proceedings are not adversarial proceedings. The judge always holds an inquisitorial responsibility, It is his difficult task to maintain a balance between the rights of the children to an early determination of their future. The obligation of the judge to avoid delay is expressed in the statute. I cannot see that it could be said that this judge, supremely experienced in this field of work, fell into error in balancing the rights of the children to determination against the rights of the parents to a fair trial. It is not a case in which the parents were denied the opportunity to put their case. It is manifest that the judge endeavoured, to the best of his ability, to ensure that the received the support which is conventionally given by a judge and advocates to unrepresented litigants.

[…]

21. When one considers the requirements of art 6 of the Convention, it is relevant to remember that art 6 requires the entire proceedings to have been conducted on a fair basis. It is not appropriate simply to extract part of the process and look at that in isolation. In this case, as my Lord has said, there had been abundant legal advice and guidance of the most skilled nature available to Mr and Mrs T before the matter came before Wall J. There had also been the possibility, indeed the obligation, to produce further evidence: steps that had not been taken on the instance either of Mr and Mrs T or of those were acting for them. I do not therefore agree that, in assessing the impact of the Convention in this case, one should necessarily start on the day upon which the adjournment was sought, ignoring everything that had gone before. Further, I do not agree that, in proceedings of this nature, in which the children as well as the parents have an intimate and pressing interest, one should look at the question of fairness to the parents in paramount priority to fairness (in terms of a prompt decision, which is another aspect of art) to the children. In the passage that my Lord has read, it is clearly apparent that the judge had, and properly had, the interests of the children well in mind when he was making his decision.

22. However, I put those matters to one side. I will look at the case on the basis upon which Miss Booth put it in support of the submission that art 6 did require a decision, either to adjourn the trial or to stop it at the point that I have indicated. We have to remind ourselves, as I have already said, that art 6 is concerned with the overall fairness of the proceedings. The article itself lays down very few absolute rules. That said, both the jurisprudence of the European Court and simple common sense, of a kind that an English lawyer can immediately identify, do require in general terms that certain elements are present in any judicial proceedings, an obvious example is the right and ability of those concerned in the proceedings to put their case. Here Mr and Mrs T had ample opportunity and occasion, as the judge was satisfied they had done.

23. Another consideration is that there should be equality of arms between the parties but, in my view, that does not mean that there must necessarily be legal representation on both sides, indeed on all sides, more particularly where everybody concerned in the case was acutely aware of the need give every assistance to people who were representing themselves. Provided that the tribunal is itself aware o and constantly reminds itself of the duty of fairness, it is very much a matter for that tribunal, and is recognised in the jurisprudence of the Convention as being to a substantial extent a matter for that tribunal, whether, in all the circumstances, it is able to discharge the case fairly.”

[Just as well, considering what has just happened to legal representation in private law cases, that equality of arms doesn’t mean that if one person has a a lawyer, everyone else should have a lawyer]

So, in Re GB, the Court of Appeal went on to consider whether, drawing on those general principles, the decision to refuse an adjournment was plainly wrong

  1. It therefore seems to me that issues such as the one raised in the present case will of necessity be fact specific; it will be necessary to look at all of the elements that were in play before the judge who decided to adjourn or not adjourn a set of proceedings. The principles are set out in the European decision of Re P and most helpfully set out in Re B and T, as I have indicated.
  1. Applying those matters to the present case, and not underestimating the task that the mother faced in conducting this litigation before the court in the, to her, unexpected event of the court pressing on without granting an adjournment, I consider that the process that was adopted and the decision to press on without an adjournment did not breach the mother’s Article 6 rights to a fair trial, looked at either in terms of the narrow focus of the hearing itself in November or, as we have to do, against the canvas of the proceedings as a whole.
  1. This was a case which turned very much upon the assessments that had been undertaken by the various professionals. Much of the work of teasing out the detail, the strengths and weaknesses of the various family members and the vulnerabilities and needs of the children had been undertaken by professionals over the course of weeks and months, had been reduced to writing and was before the judge. The judge’s decision was very much based upon that material. There is a limit in such circumstances as to how much any advocate, lay or otherwise, can achieve where the body of material upon which the judge will rely is established, and there is no countervailing expert opinion the other way. For example, had the independent social worker instructed on behalf of the parents taken a contrary view then there would have been more room for manoeuvre available to an advocate to present a case; here the evidence was all one way.
  1. Secondly, this was a case where the judge was contemplating delay of already one year from the time the children were removed to foster care. Although they were not going to change their placement or their home if the orders sought were granted, everybody involved with them, and in particular the children insofar as they could understand it, needed to know whether or not these arrangements were going to be for the future, so that they could hunker down and get on with life and the task of growing up or bringing up the children; or, if the children were going to go home, plainly that issue had to be determined so that the moves to move them back to the parents’ care could be undertaken. The judge was therefore justified in attaching a premium to the need to achieve finality in this process.
  1. Although Rule 1.1(2)(c) urges the court to establish an equal footing between parties, that can never be justification of itself for a litigant in person seeking an adjournment and holding that the failure to grant an adjournment is a breach of Article 6 rights.
  1. At each turn a balance has to be struck; it is not a balance that is to be determined under Section 1 of the Children Act under which the child’s welfare would be the court’s paramount consideration, but the court must take account of the child’s welfare and the fair trial needs of the parties to the court, which include the parents but also include the child and, to a lesser extent, the local authority. This was a decision that the judge was particularly well seated to take; she had a prior knowledge of the case and she had indicated at the earlier hearing that no adjournment would be contemplated simply for a change in legal representation to be achieved. In my view, the judge was right to reject the adjournment application.
  1. But that is not the end of the matter. Once the case is proceeding a judge is faced with the difficult judicial task of acting as the judge in the proceedings, of refereeing the court process, but doing so in a way that seeks to meet the need for all parties to be on an equal footing so far as is practicable, notwithstanding that one of them is not legally represented, and in this regard I think the judge conducted herself in a way which was conspicuously helpful in meeting that need. In particular, the judge had been open and clear to the parties by indicating at the previous hearing that there would be no adjournment. The parties were in no doubt that that was the judge’s view and any change that they were going to seek to make in their representation would have to bear in mind that parameter set by the judge.
  1. Secondly, once the judge had decided to press ahead with the hearing she was clear in dealing with the mother as to what was required and, on my reading of the transcript, went out of her way to assist the mother to achieve focussed representation in the terms of choosing which witnesses to call and how they should be questioned. One aspect of this is that, despite the breakdown in the professional relationship between the parents and their lawyers, the judge invited counsel and solicitors for the parents to remain in the court room during the morning of the first day of the hearing. The time came when the court turned to ask the mother which witnesses she would wish to call. At that stage the judge was able to ask the mother to spend a short time out of the court room with her previous barrister and solicitors to obtain their assistance and indeed to consider reinstructing them and returning them to their previous role. The result of that was that a list of witnesses was provided and the mother confirmed that she did not wish to reinstruct the lawyers. The judge’s invitation for the lawyers to remain in the court room seems to me a sensible and proportionate step to have taken.
  1. Most of the witnesses who were called on the second day had in fact been stood down, and again the judge did not stand by the previous order which had simply listed a few witnesses to be called; she exhorted the local authority to obtain as many of the key witnesses as possible and adjourned the case from time to time to assist that process.
  1. During the evidence giving itself, the judge allowed the mother full rein; she did not interrupt the mother with interventions designed to keep the mother on a track that a lawyer skilled in the forensic process should follow; she did not bombard the mother with technical points; instead she allowed the mother simply to say what she wanted to say, and then at a suitable interval the judge would try to focus the witness onto a question or questions arising from what the mother had said.

And thus concluded that taking the principles from Re B and T and the European Court decision in P, C and S v  UK, which is reported in [2002] 2 FLR at 631 and applying the facts of this case, the Court had not been plainly wrong in refusing the adjournment.

 What we don’t have then, is a checklist of what factors tip the balance for granting the adjournment and refusing one.

(I’d suggest that relevant factors would be – the circumstances in which the parent and lawyer parted company, the complexity of the trial, the timing of the separation, what steps the parent has taken to try to get fresh representation, the vulnerabilities of the parent, their ability to conduct the litigation in person if given appropriate support, the impact of delay on the case and the child,  and the timescales for reconvening the hearing. But those are just my suggestions, the Courts haven’t sat down and thrashed out a set of factors]

Of course, this raises the interesting point – in order to properly seek an adjournment, the parent (who is representing themselves, perhaps unwillingly) needs to know of the substance of at least four pieces of case law – Re B and T, P C and S v UK, Re L and Re GB, and to be able to highlight to the Court the facts of their case which put them in the Re L bracket and not the Re GB bracket.   [Good luck with that]

It would seem sensible, where the other parties get advance notice of a parting of the ways, for the relevant cases to be brought to Court and the principles distilled into a short document for the benefit of the Court and the parents.

 The Court of Appeal in Re GB also made some salient points about the delay, it having taken 15 months to get the appeal heard, principally because the appeal had not been issued until the transcript of the hearing had been obtained, and firstly there had been a delay in getting the LSC to fund the transcript and secondly in getting the transcript approved by the original trial judge.

The Court of Appeal encourage parties in a similar position to issue the appeal without the documents and use the force of the Court of Appeal’s directions to hasten the production of those documents.

  1. From this unedifying chronology it seems to me that the following points for future practice can be drawn:

a) The preparation of transcripts, and indeed the obtaining of advance authorisation for the costs of preparation from the Legal Services Commission, may take a significant amount of time. At each turn it is important to ask the question: is the obtaining of this particular transcript an essential pre-requisite before either filing a notice of appeal or indicating that the papers are in order for the permission to appeal application to be considered?

b) Where, as here, time was running on and a further first instance hearing was timetabled, serious consideration should be given to filing the notice of appeal in any event, notwithstanding that one or more plainly essential transcripts is not yet available. Such a step

1) enables the Court of Appeal to support a prompt process by the Legal Services Commission and the transcribers in meeting a sensible timetable;

2) enables the Court of Appeal to contact the first instance judge if necessary to chase up approval of the transcript of judgment; and

3) provides a vehicle via which the proposed appellant may seek a stay of the ongoing court proceedings pending consideration of their application by this court.

c) In a case which is already grossly delayed, the notice of appeal if not already filed must be filed within a matter of a day or so after granting of legal funding and not, as here, some weeks later.

d) the pursuit of transcripts in relation to issues which, at best, are peripheral should not delay progressing the case at least to the stage of consideration for permission to appeal.

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