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GB (Children) [2013] EWCA Civ 164

Application by mother for permission to appeal a refusal by the judge to adjourn care proceedings in order that she might seek alternative legal representation. Application granted but appeal dismissed.

Case No: B4/2012/1616
Neutral Citation Number: [2013] EWCA Civ 164


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday 7th February 2013





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Ms Valerie Sterling (instructed by King St Solicitors LLP) appeared on behalf of the Appellant Mother.
Ms Catherine Mason
(instructed by Wakefield Metropolitan Borough Council) appeared on behalf of the Respondent Local authority.
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Lord Justice McFarlane
1. This is an application for permission to appeal, which has been listed following an order by Black LJ for hearing on notice to the other parties with the appeal to follow in relation primarily to a determination made in November 2011 by a judge sitting in Leeds County Court, HHJ Cahill QC, in ongoing care proceedings with respect to three children.  I will refer to the children by their initials.  The eldest is a boy, M, born on [a date in] 1999 and therefore now 13; a girl, K, born on [a date in] 2005, therefore now 7; and a young girl, S, born on [a date in] 2010, therefore now two-and-a-half years. 

2. In addition to these three younger children, there is an older child, indeed now a young adult, a girl also with the initial M, who I will call ME, born on [a date in] 1994 and therefore now just 18.  All four of these children are the children of the mother in these proceedings.  Of the three before the court, a Mr G was the father of the elder two, M and K, and a Mr B was the father of the young child, S. 

3. Proceedings had been commenced the previous year following police action in which it was discovered that the home in which the children were living contained some controlled drugs.  As a result, an emergency protection order was granted on 29 October 2010; all three of the children were placed under that order in foster care and they have remained in foster care prior to (in the case of the younger two) being placed with members of the wider family, throughout the ensuing 13 months prior to the hearing before HHJ Cahill.

4. It is not necessary, because the focus of this appeal is on the procedure adopted rather than the substance of the case, to give much more of a flavour of the issues that were before the court.  The local authority case was one that asserted a chronic failure on the part of the mother and the two respective fathers of these children to provide safe parenting over a long period of time. In particular, reference was made to the extreme behaviour, as the judge described it, of the eldest of the four children, ME, which was a matter of grave concern and involved her from a young age demonstrating overconsumption of alcohol, indulging in underage sexual activity, and generally being very challenging in her behaviour towards her mother.  

5. To a lesser degree, but nonetheless of concern, the behaviour of the boy, M, was described as difficult and, to a degree, out of the control of the mother and either of the two father figures.  It is the case that both ME and M had been diagnosed as being suffering from Attention Deficit Hyperactivity Disorder ("ADHD").  In addition to that background material, there was obvious focus upon the presence of drugs in the property at the time that the police raided the premises.

6. The mother's case before the judge was that all three children should immediately be rehabilitated to the care of herself and Mr B, the father of the youngest child.  In particular, the mother said that the problems with M's behaviour (that is the boy M) were all of an organic origin and probably resulted from autism, that she had never been supported by the local authority, and that generally none of the matters of concern that I have just briefly summarised were anything to do with her parenting.  She blamed much of what had gone on in the past upon the impact of Mr G in her life and asserted that once he departed from the household all was comparatively well. 

7. I have described the precipitating event in October 2010: cannabis and amphetamine had been found at the premises; also some white tablets which turned out to be paracetamol, but which Mr B thought to be cocaine at the time, were also discovered.

8. The eldest of the four children, ME, had alleged that drug-dealing had been undertaken at the premises but then retracted the allegation.  The local authority did not pursue that to a finding of fact in terms of the dealing itself but did nevertheless rely upon the fact that this then 17-year-old young person had said such a thing.  The mother's case before the judge was that such drugs as there were were always out of reach of the children and never consumed in front of any of the children.

9. It is plain from the chronology that I have so far given that a whole year went by between the children being taken into interim foster care and the judge making final determinations in November 2011.  During that period it is apparent that extensive assessments were undertaken by the parents and other members of the family, including psychological assessments of the parents. The case was apparently actively ready for hearing in the middle of 2011, but an early fixed final hearing in July was adjourned, and then had to be readjourned because of witness availability to the hearing in November. 

10. The first day of the five-day final hearing was to be the 14 November but the court had booked an issues resolution hearing to take place a week previously on Monday 7 November.

11. The case before the judge at the final hearing was that there should be a full care order for the eldest child, the boy M, and that he would remain in foster care, and that there should be special guardianship orders to members of the wider family in relation to the two girls, K and S.  K was to be placed with Mr B's grandmother, so effectively not a blood relation but "a step paternal grandmother", and that the youngest child, S, should be placed with Mr B's father and his wife, both such placements being under special guardianship orders backed up with a short supervision order.  The position of the children's guardian was to support the local authority plan. 

12. In the event, the judge in November made those orders save that she was required to adjourn determination in respect of K until a hearing in April 2012 so that final paperwork and assessment reports were available.  The final order for K was made on 16 April 2012 by HHJ Rose and he endorsed the plan and made a special guardianship order in her case.

13. In the course of coming to that conclusion the judge ruled out a number of the factors that the mother had asserted; in particular she ruled out an organic cause of the boy M's behaviour and concluded:

"The behaviour is much more likely to be the result of parenting which he has experienced both in the time when Mr G lived in the household and subsequently."

In relation to the mother the judge made the following specific findings:

"41. Insofar as the mother is concerned, she has given evidence before me and conducted her case with great vigour. There are in the bundle Trio-Tech reports, and I was told yesterday that another trio-Tech report is about to be made available. It is not available. I therefore give this Judgment on the basis that I accept that this mother has not recently taken drugs, and I do not need the Trio-Tech report in order to confirm that. The mother is clearly an intelligent lady. During the course of her conducting her case, however, she has shown very clearly that she considers herself to be in a battle with the social workers. She has shown no insight into the issues of the case. She criticised the placement of [K], but it is she who in fact came to Court to ensure that [K] stayed in that very placement. At one stage during the course of today she asserted that the social worker takes cannabis in the same way as Mr Bailey does. That is not something which was put to the social worker, nor is it something which has been asserted before.

42. She shows no insight at all into why there are concerns about drugs having been in the household. Of course, those are not the only concerns in this case. The major concern in this case is the effect of the parenting on the children's behaviour. The mother told me quite clearly during the course of today that she does not consider that she needs any form of psychotherapy. She says that the concerns now are more than a year old and they need not concern me. On the positive side in respect of the mother, it is quite clear that she has sought help over the last year, and I am satisfied, as she has told me, that even though she thinks she does not need it, she will go to psychotherapy if it is offered to her. I commend her for that."  

14. The judge, relying on the expert and professional evidence, identified that neither parent recognised nor accepted the local authority's concerns, and neither had demonstrated a willingness to work with the local authority to address those concerns.  As a result, the judge concluded that the prognosis for a positive change from either parent was therefore limited.  The evidence indicated, as the judge found, that any therapeutic intervention to assist the mother to achieve change would need to be offered over the course of one or two years, and that was said to be outside the timescale for the children, who needed to be settled in a permanent and safe home.

15. I should record that, in the later stages prior to the final hearing, the court had given the parents permission to instruct an independent social worker who had reported.  Her conclusions were, in effect, to endorse the analysis that the social workers and other experts had already put before the court and she endorsed the final outcome that was proposed for each child.

16. The judge, at the conclusion of her judgment, says this at paragraph 51:

"I am satisfied that in this case these parents and these children have been thoroughly assessed by a number of extremely competent professionals. Despite the positives that have been pointed out to me, I am satisfied that if these children were returned home, very quickly behaviour problems exhibited by [M] and [ME] would be replicated, and not only would they be replicated by [M], they would also eventually progress in terms of [K] and [S]. The process that [M] has been making thus far, in my view, would be stopped, as once again the mother sought to find an organic cause for his problems rather than her own parenting. For [K] and [S], I have no doubt there would be a similar outcome, and they would end up with much the same behaviour problems as their elder siblings. I am satisfied that none of these children can now return home to the care of their mother or Mr [B]."

The judge therefore then went on to make the orders that I have described.

17. The focus of this appeal is, as I have indicated, upon process.  Although the mother had been represented by solicitors and counsel at all stages in the lead up to the final hearing, in a position statement prepared for that hearing she sought an adjournment in order to seek alternative legal representation.  On the first morning of the hearing Mr B also applied for an adjournment for the same reasons.  The judge did not grant an adjournment, the case proceeded, and the focus of the appeal is therefore upon the alleged unfairness of the trial that then took place.

18. In order to put what is said in context it is necessary to look at the short chronology of the days leading up to that hearing, starting with Thursday 3 November.  On that day it is apparent that a conference took place between both parents, with their jointly instructed solicitors and counsel.  On the following day, Friday 4 November, two events happened.  First of all, the mother's final statement was circulated, stating her case for the immediate return of all three children to her care.  Secondly, late in the afternoon upon that day solicitors for the parents apparently made contact with the other advocates to inform them that the parents were no longer opposing the care plans and were simply seeking a decision upon the contact arrangements.  This was obviously a significant change of stance from that described in the statement that had been filed a few hours before.

19. On the following Monday, 7 November, the issues resolution hearing took place. The parents were attended by fresh or different counsel.  Following a conference the court was told that the factual allegations underlying the Section 31 threshold criteria were largely agreed, but the parents sought to argue whether these facts amounted to significant harm under Section 31 of the Children Act.  In any event, the court was told that the parents were accepting that the three children would not be returning to their care and the parents accepted the plans for the children to be looked after in the manner proposed by the local authority.  As a result of this change of stance, the judge altered the timetable for the final hearing, reducing it from five days to two days and radically reducing the witness list.   All of these matters were agreed by counsel acting on behalf of the parents and the parents were in the court room when these matters took place. 

20. There was some indication given to the court at that hearing that the father was expressing some dissatisfaction with being represented by the same team of lawyers as the mother.  We have been told that the judge made it very clear at that hearing that the final hearing planned for one week later would not be adjourned to accommodate any last minute change in representation. 

21. Two days after the issue resolution hearing, on Wednesday 9 November, it is plain that the mother was telling individuals, particularly the social worker at a contact session that afternoon, that she had lost confidence in her legal team and no longer wished to be represented by them.  It is equally clear that in the intervening period the mother made no attempt to identify or instruct replacement lawyers. 

22. On Monday 14 November, the first day of the final hearing, a position statement from the mother dated 10 November was submitted to the court, and in that she asked for an adjournment in order to seek alternative representation.  That application was not formally made by the mother at the hearing, but a similar application was made by Mr B and was refused by the judge.  Mr B then left the court and took no further part in the proceedings.  The mother remained and continued as a self-representing litigant for the remainder of the hearing which spanned two very full court days and involved the calling of a number of key witnesses.

23. Against that background, counsel, Ms Sterling, who now acts for the mother and has done so since shortly after the November hearings, seeks to put forward two primary grounds of appeal.  Firstly, that the judge was plainly wrong in not granting an adjournment, with the result that the hearing which then took place was a breach of the mother's right to a fair trial in accordance with Article 6 of the European Convention on Human Rights.  The following points are made:

1) the importance of the litigation to the mother involving, as it did, the placement away from her or with her of her three youngest children;

2) the need expressly stated as part of the "overriding objective" in Family Procedure Rules 2010 Rule 1.1(2)(c) of the court dealing with the case, so far as practicable, by ensuring that the parties are on an equal footing;

3) the mother, who comes from a troubled background, was faced with the formidable task of taking on board a bundle of papers running to some 1,300 pages together with an additional 600 pages or so of contact notes and of doing so overnight between the first and second day of the hearing;

4) the second day of the hearing, which started at 9.30am, involved the mother cross examining five key witnesses and then giving her own evidence. 

24. The second primary ground of appeal is more shortly put: that the judge was plainly wrong in not granting an adjournment so that the mother's position for the future could be better protected by legal representation in the event that she may have further children and the judge's judgment may be relied upon to support social work intervention in her care of such a child.  Again, in the grounds more detail is given to support that assertion.

25. Finally and as a subsidiary matter, the grounds seek to challenge the order made by HHJ Rose in April 2012 which effectively resulted from the primary determination made by HHJ Cahill

26. It will not have escaped notice that the matters complained of relate to a court process back in November 2011, which is now some 15 months ago.  I therefore propose to look at how it is that so much time has gone by.  I should say straight away that the fact that we are now 15 months after the event is in no manner the fault or responsibility of the mother, who acted very sensibly and very promptly after the hearing in November in obtaining fresh legal representation.  Her new solicitors also promptly instructed counsel Ms Sterling, and she in turn was able to take part swiftly in a conference which took place on 15 December. 

27. The notice of appeal was not, however, lodged with this court until 25 June 2012.  Thereafter the mother's solicitors asked for and were granted extensions of time while further transcripts were obtained, with the consequence that it was not until the 12 October that the solicitors indicated that all the paperwork was then in order and the papers were ready to be considered by a single Lord or Lady Justice on the issue of permission to appeal. 

28. It is not necessary for me to descend into a detailed analysis of this unfortunate chapter of events.  It is, however, possible to draw out one or two matters for mention in the hope that in the future practitioners may take a different course. 

29. The principal cause of delay arose from the preparation of transcripts of the various hearings and separately the judgments of the two judges.  Counsel advised that no appeal should be launched until she had had sight of the transcripts of the November hearing.  Thereafter, nearly three months went by before the Legal Services Commission granted authority for public funding to pay for the transcripts.  When the transcript of the November hearing arrived six weeks later on 23 April, it did not include a transcript of the judgment, which had apparently been sent to the judge for approval but not been returned to the transcribers.

30. Four weeks then elapsed between the grant of legal aid allowing the solicitors to apply for permission to appeal and the filing of the notice of appeal.  Thereafter, in mid-July, counsel, for the first time, advised that a transcript of the hearing before HHJ Rose should be obtained.  That was not provided until the end of August, and then a further seven weeks elapsed before an approved version of HHJ Rose's judgment was received on 12 October.

31. 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. 

32. I have already recorded that when the matter came before Black LJ in November, she adjourned the permission application to a full hearing, which is the hearing that my Lords and I have now conducted.

33. We have been greatly assisted this morning by submissions made by Ms Sterling on behalf of the mother and Mrs Mason on behalf of the local authority who appeared below before the learned judge.  In addition, the court has taken delivery of a skeleton argument prepared by Ms Curnin on behalf of the children.  We excused her attendance before the court today because, effectively, she was arguing for the same outcome as the local authority, but I for my part would wish to pay full credit to her for a helpful and detailed document.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. In response, Ms Mason took us to the chronology and stressed a point which I have already highlighted, which is that the mother had seemingly already decided to change her stance by the Friday afternoon rather than when she met the replacement counsel on the morning of the issues resolution hearing.  Ms Mason urged this court to put the one page from the psychological report into context.  The court has not seen the whole report, and Ms Mason submitted that this was the high point of any argument that the mother could make in the manner that Ms Sterling puts it by referring to this raw material, recording the test results.  The psychologist came to a more insightful and sophisticated view, which does not paint the mother in the striking terms that the labels that arise from the various test results might indicate.

42. We were keen to hear what Ms Mason had to say about the impact of this judgment in relation to any children in the future that the mother might come to bear.  Ms Mason said this:

"No doubt if a child in the future is born, the Local Authority will look at the family circumstances that then apply and conduct a reassessment and review to take account of any change in circumstances."

It is plainly the case that the professionals identified the need for this mother to undertake psychotherapy to assist her to come to terms with her own past and her own ability to parent children in the future.  Plainly, if she involves herself in such psychotherapy, and either is undertaking it or has completed a course of psychotherapy before the birth of any child, Ms Mason by implication is saying that the local authority will certainly look at that matter. 

43. Finally, Ms Mason resisted the submissions that the judge had proceeded with undue haste and pointed to the fact that not only the judge but the other advocates had done what they could do to assist the mother in presenting her case. 

44. What is the legal context in which we have to determine this matter?  We have been referred to a number of cases, in particular Re B and T (care proceedings: legal representation) [2001] 1 FCR 512, Re B (a child) [2012] EWCA Civ 858, and a decision of another constitution of this court presided over by Thorpe LJ on 1 February 2013 last week, Re L (a child).  In turn, Re L refers to a decision of the European Court of Human Rights, P, C and S v  UK, which is reported in [2002] 2 FLR at 631. 

45. To my mind, the most useful of these various authorities, in terms of giving general advice to a case which is not dissimilar to the present case, is that of Re B and T where Thorpe LJ said:

"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."        

46. Despite the fact that PC and S v UK is a subsequent decision and plainly a decision to which this court must have regard, coming as it does from Strasbourg, the facts in PC and S v UK were at an extreme end of the spectrum.  The principle announced and described by the court in Strasbourg in PC and S does not, to my mind, differ from that which was applied by Thorpe LJ and Buxton LJ in Re B and T.

47. The more recent case of Re L is of note because it is a decision last week by this court which did overturn a first instance determination on the grounds that a father who had parted company with his legal team on the eve of the hearing sought an adjournment and yet an adjournment was refused.

48. The approved transcript of Thorpe LJ's judgment in Re: L is not yet available; all we have is a summary prepared by Westlaw UK.  It seems clear from that summary that the facts of that case differ significantly from the present case; in particular, after the event but before the hearing in front of the Court of Appeal, the father had been identified to be a vulnerable individual who was disadvantaged by a diagnosed personality disorder and who was, in the view of a psychiatrist, unfit to conduct litigation on his own behalf.  In addition, the case was not an urgent case, and the barrister who had previously acted for the father was acceptable to the father and only unavailable on the day of the hearing because of a subsequent booking.  It was possible for that barrister to be brought back into the role swiftly and the hearing could have taken place after a very short adjournment.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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. 

54. 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.

55. 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.

56. 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.

57. 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.

58. 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.

59. Throughout, the judge's interventions seem to me to be clear, polite and supportive of the mother in the task that she had to undertake.  One specific example of the judge's approach is in the course of the second day when the mother herself is being cross examined.  At one stage counsel for the local authority put to the mother a specific piece of information to the effect that the mother had told the social worker in contact on the previous Wednesday that she was going to "sack" her solicitor.  Immediately the judge says:

"Have I had evidence about this Mrs Mason?"

To which counsel says that none has been filed but it can be called and the judge says:

"Well, I think there should have been evidence filed if it is going to be relied upon."

60. That intervention by the judge is precisely the sort of technical intervention that a barrister would make on behalf of the mother had a barrister been acting in that role.  The fact that the judge decided to make that intervention herself is again helpful and, in my view, typical of the way that this judge approached the difficult judicial task of dealing with a self-representing litigant in sensitive proceedings.

61. I therefore would not allow this appeal on the primary grounds that are put before us in relation to Article 6.

62. The second ground arises from the mother's understandable concern about the impact of this judgment on the future.  For my part, that can never be a ground of itself that would justify interfering with the decision of the judge on the day in relation to the children who were before the court.  That said, it is a reality of social work practice and a reality for parents who find themselves the subject of social work concern that the detail of what a judge has said in proceedings will be looked at in the future.  It is also right as a matter of generality, as Ms Sterling asserts, that, if a party is represented, the lawyers have an eye to making sure that the judgment includes the positives as well as the negatives, even if the end result is plain.

63. I would place some clear reliance upon the stance taken by Mrs Mason before us at this hearing.  It is a fact that the judge said what she said about the mother in these proceedings, but it is also a fact that the mother was not represented at the proceedings and the judge gained the overall picture of the case and of the mother that she did as a result of that process.  It seems to me therefore wise for any social workers dealing with this mother in the future to bear that factor in mind.  As a ground of appeal, however, it does not take the matter any further and I would dismiss the appeal on that basis also.

64. Finally, I would say this.  This mother has been through a lot.  She has heard a lot of things said about her in these proceedings, and that is a very difficult situation for her to be in.  She knows that the advice is that if she can obtain some psychotherapy, that will put her in a much better position to care for children in the future, and I would therefore hope that she would, when matters are settled, seek professional advice and seek to move that forward.

65. So far as the appeal is concerned, I would grant permission to appeal, but I would dismiss the appeal.

Lord Justice Rix:
66. I agree.

Lord Justice Lloyd:
67. I also agree.

Order:  Application granted; appeal dismissed