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

Father’s application for permission to appeal against directions order adjourning the hearing of his residence application pending the outcome of criminal proceedings dismissed.

Court of Appeal: Hedley LJ (11 May 2006)

Summary
Father's application for permission to appeal against directions order adjourning the hearing of his residence application pending the outcome of criminal proceedings dismissed.

Background
The parents married in 1994 and separated a couple years after. In 1998 or 1999 a residence order was made in the Father's favour with respect to the parties' 3 children: J (13), who is not the Father's biological child but a child of the family, O (12) and M (10). In 2004 the three boys were removed from the father by the police and delivered to the mother. The Father thereafter faced criminal proceedings, the details of which were not investigated by the court. The Mother, without any authority, left for Nigeria with the children. The Father initiated proceedings seeking their return to his care. At some stage the Mother returned from Nigeria although the Father did not know the children's present whereabouts. The case came before HHJ Pearlman in September 2005 when it was believed the criminal proceedings would be concluded in January 2006 and so adjourned the case until March. The criminal proceedings were then adjourned until June. The civil proceedings were further adjourned until July at CAFCASS' request on the grounds that the criminal proceedings were still outstanding. The Father applied for permission to appeal against the directions order made by HHJ Pearlman. The Father relied upon Re S (Care Order: Criminal Proceedings) [1995] 1 FLR 151 to assert that the court is not obliged to await the outcome of criminal proceedings before being able to proceed with the case.

Judgment
Held, dismissing the application for permission to appeal, that HHJ Pearlman's order was within her discretion. The Father had put himself forward as being the principal carer of these children. The criminal proceedings he faced were capable of attracting a custodial sentence and therefore it was not known whether he would be available to discharge his obligations under a residence order until the outcome of the criminal proceedings. An actual appeal against the order would have no prospects of success and therefore permission should be refused. Hedley LJ emphasised the need to determine this case expeditiously and therefore listed the case for a directions hearing to set down an effective trial date. The court highlighted that the in Re S (Care Order: Criminal Proceedings) [1995] 1 FLR 151 it was clear that an adjournment pending the outcome of criminal case was permissible provided a discernable benefit to the children by the delay could be ascertained.

Read the full text of the judgment here