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E & O (Children) [2006] EWCA Civ 687

This is an application by a father, who was facing criminal charges, to appeal an order adjourning a hearing relating to the residence of his children until the criminal proceedings were concluded. The application was refused.

The father was granted residence of his 3 sons after the breakdown of his marriage. An incident led to the boys being removed by the police and placed with their mother, who subsequently took them to Nigeria, returning at a later stage. The father initiated proceedings seeking a return of the boys to his care, even though he was by now facing criminal charges.

The father relied on the case of Re S (Care Order: Criminal Proceedings) [1995] 1 FLR 151 where it was decided that the Care Court was not obliged to await the outcome of criminal proceedings before being able to proceed with the case. However, Re S made it clear that adjourning the case pending the outcome of a criminal case was permissable provided that the children would benefit from the delay. It was held that, as the father risked a custodial sentence, the father's ability to deliver on a residence order remained in doubt until the conclusion of the criminal proceedings.


B4/2005/2620 & B4/2005/2621

Neutral Citation Number: [2006] EWCA Civ 687






Royal Courts of Justice


London, WC2

Thursday, 11th May 2006

B E F O R E:





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1. MR JUSTICE HEDLEY: This is an application by Mr O for permission to appeal against a Directions Order made by HHJ Pearlman on 9 September 2005 sitting as a judge of the High Court. The effect of her order was to adjourn a hearing which was to take place some five weeks after the directions hearing and to direct that it was not to be heard before 31 January 2006, and the reason that lay behind that order was that the applicant faced at that stage criminal charges in relation to his children.

2. Now the background to this case is somewhat unusual. There are three children, all of whom are boys: J, who is 13, who is not the biological child of the applicant, but as will appear in a moment, he has always acted as a father to that child; O, who is 12; and M, who will be 11 next month. The father and mother, for such as I will refer to them, all children having the same mother, met in April 1993 or thereabouts and married the following year and after a couple of years or so they separated.

3. Somewhere in 1998 or 1999 the boys went to live with the father, and that was authorised by an order granting residence to him in Bromley with contact to the mother. That position continued for really quite a long time; indeed, until 19 June 2004. It is not altogether clear, nor is it necessary for me to investigate precisely what happened on 19 June 2004, beyond saying this. The effect of it was the removal of these three boys by the police and delivery to the mother. Precisely the legal auspices under which that was undertaken, if any, are not clear. Be that as it may, that is what happened.

4. The mother, on the face of it without any authority at all, disappeared with the children to Nigeria. The father initiated new proceedings, seeking both a return of the children and orders preventing their summary removal from his care without order of the court. Perhaps not surprisingly, the County Court transferred the matter to the High Court, as Nigeria is not a country which is a signatory to the Hague Convention, and therefore potentially difficult issues of enforcement and comity arose. The matter, having been transferred to the High Court, was fixed at trial on 13 and 14 October 2005.

5. At some stage the mother returned from Nigeria to this jurisdiction with the boys, although the father does not know their present whereabouts but strongly believes they are in this jurisdiction. It was in those circumstances that the matter came on before HHJ Pearlman on 9 September. Now the learned judge would undoubtedly have had in mind the provisions of section 1(2) of the Children Act, namely that in any proceedings in which any question with respect of the upbringing of a child arises, the court shall have regard to the general principle of any delay in determining the question is likely to prejudice the welfare of the child. That of course is axiomatic in terms of dealing with children cases, and the father is entitled to point out that here we are, nearly two years on from the precipitating incident, without the matter having been properly determined. The reason for the vacation, and indeed as will appear the reason for a subsequent vacation, is all linked in with the criminal proceedings against the father.

6. At the time Judge Pearlman dealt with the case it was believed that the criminal proceedings would be concluded in January, and ultimately a civil hearing was fixed for 8 March. The father tells me today, and of course I accept, that when the matter came before the criminal court in January there was an application to stay on the basis of an abuse of process. It appears that the prosecution did not proceed with three out of the six counts of the indictment, but the criminal proceedings were adjourned until June. The father is not entirely clear at the moment as to whether or not the Crown intend to proceed with those, but if they do then the matters remain in contest.

7. The matter came on paper before Wall LJ in this court. On 13 February he made an order, the effect of which was to say that really what the father should be doing was concentrating on the hearing set for 8 March. That has again been adjourned, the father understands, at the behest of CAFCASS on the same grounds, namely that the criminal proceedings are still outstanding, and have been relisted in July.

8. So that is the position with which we are all confronted today; namely, that 23 months have gone by and there has not been a determination. The children in the meantime have been, apparently, wrongfully removed from the jurisdiction, but returned. The father does not know of their present whereabouts and therefore I deduce from that is not in contact with them, and the question is: what should happen in those circumstances?

9. The father makes the point, and he clearly has some understanding of the legal processes, that by reason of the decision of this court in Re: S Care Order Criminal Proceedings [1995] 1 FLR 151, the Care Court is not obliged to await the outcome of criminal proceedings before being able to proceed with the case. As a proposition that is undoubtedly correct, but of course like all propositions in proceedings relating to children it is not absolute, as indeed the court in Re S made clear. The court in Re: S made it clear that adjourning pending the outcome of a criminal case was permissible, provided a discernable benefit to the children by the delay could be ascertained.

10. Now of course the difficulty in this case, which makes it rather different to most cases, is this: the father puts himself forward as reverting to being the principal carer of these children. The criminal proceedings that he faces are potentially capable of attracting a custodial sentence, if convicted. It would therefore not be surprising if a court was unwilling to determine finally the question of the father's application for residence, if it were still not known whether he would be consistently available to discharge those obligations rather than finding himself the subject of a custodial sentence. In those circumstances, of course, it is not altogether uncommon for a court to adjourn the proceedings pending the criminal proceedings.

11. Usually in these cases the person subject to criminal proceedings is not putting themselves forward as a primary carer and therefore there is no need to adjourn; or the person against whom criminal proceedings are brought is simply incapable of putting themselves forward for a whole variety of reasons, and therefore no adjournment is necessary. But this is an unusual case because the father clearly has a serious argument, and it would be understandable in those circumstances for an unusual course to be taken.

12. One thing that the father is undoubtedly right about is that this matter needs to be dealt with by the courts. Secondly, it seems to me that this is a case in which the court would be perfectly entitled to say that the final disposal should not take place until the criminal proceedings are out of the way, because until they are out of the way the father's ability to deliver on a residence order will remain in doubt because he may not be free to do so.

13. It seems to me that the order made by HHJ Pearlman was well within the discretion that was committed to her in the purposes of deciding that question, for the reasons that I have given. In those circumstances, an actual appeal against that order would have no prospects of success and permission should be refused. That said, it is absolutely essential that this matter is dealt with. The father says to me that it is fixed for July, but he spoke a little vaguely about it, and that leads me to think that there is at the moment still a lack of clarity about what is going on.

14. Therefore, although I am going to refuse permission to appeal, I am going to direct that this matter should be listed on the first convenient date 28 days from now on a directions hearing, at which the father and the mother are required to attend, along with any other interested party, so that it can be clearly determined whether there is a proper trial date set down in July, as I very much hope there is, and what needs to be prepared so that that date shall be effective.

15. I make this final comment. Whatever order I have made today, it is on my knowledge of the lists here inconceivable that the matter could now be tried before the date that is fixed for July, simply because there is no space in the list, and so the father loses nothing by this application. But the proper route is not by way of appeal; it is by way of fixing this for a directions hearing, as I propose to order, and the matter being brought on for trial on the first date that is available to it.

Order: Application refused. I order a directions hearing in the High Court.