K and L (Children: Fairness of Hearing)
[2023] EWCA Civ 686
P (A Child: Fair Hearing)
28 February 2023
[2023] EWCA Civ 215
Court of Appeal
A mom lost her lawyer during a court case about her baby's adoption. Although the judge made some mistakes, the higher court said the whole process was still fair because the dad had a lawyer, and delaying the case would hurt the baby. The mom's appeal was dismissed.
Key Facts
- •Care proceedings were issued for C, a baby girl, due to concerns about her parents' volatile relationship and the risk of harm.
- •The mother has a learning disability and a history of being a victim of domestic abuse from the father.
- •The father has a substantial criminal history and was considered potentially psychopathic.
- •During the final hearing, the mother's lawyers withdrew after the court admitted an email suggesting the mother had previously sought refuge from the father.
- •The mother applied for an adjournment to obtain new legal representation but was refused.
- •The hearing continued with the mother unrepresented, resulting in a placement order for adoption.
- •The mother appealed, arguing that the refusal to adjourn was unfair and violated her Article 6 rights.
Legal Principles
An appeal court will allow an appeal where the lower court's decision was unjust due to a serious procedural irregularity.
Rule 52.21(3)(b) of the Civil Procedure Rules 1998
The court must strike a fair balance between all interests involved, considering the child's interests and the effects of delay.
Re B and T (Care Proceedings: Legal Representation) [2001] 1 FLR 485, Re L, Re G-B
Appeal courts are slow to interfere with case management decisions unless the decision was unfair.
Re TG (A Child) [2013] EWCA Civ 5
A fair hearing requires a balance of interests, considering the child's welfare and the effects of any delay.
Re L [2013] EWCA Civ 267
The right to a fair hearing (Article 6 ECHR) is not absolute, and limitations are acceptable if proportionate and pursuing a legitimate aim.
P, C and S v the United Kingdom (2002) 35 EHRR 31
Fairness is assessed on the totality of the proceedings, not isolated parts.
Re B and T, Re G-B
A legally valid decision requires a fair hearing; if unfair, the judgment cannot stand.
Serafin v Malkiewicz [2020] UKSC 23
Outcomes
Appeal dismissed.
The court found that despite the unfortunate events leading to the mother's loss of representation, the proceedings as a whole were fair. The mother's disadvantage was limited, mitigated by the father's representation and her lay advocate, and the delay caused by an adjournment would have prejudiced the child.
Refusal to adjourn upheld.
The Recorder balanced the disadvantages of an adjournment (delay, staleness of evidence, potential need to restart) against the limited disadvantage to the mother. The court agreed that the balance struck was fair.
Refusal to reopen the hearing upheld.
The application to reopen was procedurally irregular and came after judgment was handed down, amounting to an appeal from the Recorder's own decision, which is not possible.