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B (A Child) [2009] EWCA Civ 1243

Application for permission to appeal, with appeal to follow, refusal to adjourn care proceedings so an intervenor could prepare their case properly. Application and appeal allowed.

The applicant, who suffered from severe learning difficulties, was a tenant in a house where a child had made allegations of sexual abuse by her father and subsequently by the applicant. The district judge had invited the applicant to intervene but his learning difficulties delayed proceedings to the extent that, when he was finally judged fit to instruct lawyers and they asked for an adjournment to prepare their case, the application was refused. This was partly because the mother's counsel would not be able to remain on the case and also that, as the applicant had not attended a previous hearing, the judge felt he could take a more robust approach. 

Ward LJ allowed the appeal on the gournds that the right to a fair trial overrode the difficulties faced by the mother and the local authority: the judge had therefore been plainly wrong to refuse the adjournment.

Case No: B4/2009/2317
Neutral Citation Number: [2009] EWCA Civ 1243
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 26th October 2009

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(DAR Transcript of
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Miss Susan Campbell (instructed by the Oxford Law Group) appeared on behalf of the Appellant, the Intervener.

Mr Nicholas Goodwin (instructed by Oxfordshire County Council Legal & Democratic Services) appeared on behalf of the First Respondent, the Local Authority.

Mr Michael Keehan QC and Mr William Baker appeared on behalf of the Second Respondent, the Mother.

Mrs Marianna Hildyard QC and Mr Christopher Butterfield appeared on behalf of the Third Respondent, the Father.

Miss Melanie DeFreitas appeared on behalf of the Fourth Respondent, the child acting by her Children’s Guardian.

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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Ward:
1. This is an application for permission to appeal against the refusal of HHJ Corrie sitting as a judge of the High Court in the Oxford County Court on 21 October to adjourn the case until 23 October to enable a new joined intervener time to prepare the case. 

2. For reasons which will be apparent, I would give permission to appeal and indeed allow the appeal.  It is a complicated case by all accounts, concerning allegations (I suppose they must be allegations), among many others that a young girl who is now ten years old has been sexually abused not only by her father who is a party in the care proceedings but by the tenant who has only just be joined as an intervener.  The allegations of sexual abuse came to light in about April, I think, following an interview the girl had with the police. 

3. The care proceedings were started sometime shortly thereafter and necessarily case management hearings took place, at one of which on 18 June the district judge invited Mr M to intervene and gave liberty to apply in the event that an issue arose as to his capacity to act on his own behalf.  Even then it was appreciated that he, like, it seems, everybody else in the case, excluding counsel of course, suffers severe learning difficulties and physical difficulties as well.  They are hard of hearing, have speech impediments, they need sign language assistance and every other form of assistance.

4. So this is, as was known, a hugely disadvantaged man of some 40 years of age who has a reading age of ten.  It may be no surprise and certainly no surprise to me that he was quite unable to act upon the invitation to intervene.  The proper course I would have thought was pretty plain.  If allegations were to be made against him he ought to have been made a party by the local authority as the applicant in the care proceedings.  They did not do so, and it would unfair to the local authority not to record in this judgment that they went to elaborate other lengths to try and involve him -- visiting him, arranging lawyers to be available to him and going out of their way to help. -- but sadly failing to take the step that would have avoided this application.  In the event it was decided that he had to give evidence, as a witness, no doubt, to the allegations levelled at the father, even though he was being accused of other acts of his own.  A subpoena was issued.  He did not appear in court.  Cutting the long story short, he was arrested and brought before the Oxford County Court on 16 October.  Arrangements had been made for solicitors to represent him and he was then joined as a party in proceedings which had begun three days earlier.  So he was brought in in the middle of the case.

5. His learning difficulties led inevitably to the need for an expert view as to whether he was capable of giving instructions himself.  I note en passant that the father is incapable, and that gives a glimmer of the difficulties of case management that this case has had to endure.  So it was not until 20 October that he was found to be fit to instruct his lawyers.  Legal Aid was granted for leading counsel and Miss Campbell appeared on his behalf on 21 October to seek the adjournment.  She was confronted, she tells us, with what she calls the core statements of some 486 pages.  So there is a formidable amount of material for this severely disabled party now to try to assimilate and on which to give instructions. 

6. The judge refused the application.  I can of course sympathise with him and do inasmuch as he had by then begun to deal with the case.  It had been fixed for nine days.  It will probably take three times as long as that in fact to deal with.  The judge, whilst acknowledging what he called the formidable task facing Ms Campbell QC, nonetheless took account of the need for the case to proceed as swiftly as possible and took account of the difficulties confronting representation for the mother.  Mr Keehan QC, who appeared before him as he does before us, indicated that delay would put him in difficulties because he was committed elsewhere and would not be able to represent the mother through to the conclusion of the trial.  That, it was submitted, was unfair on the mother, and so the essence of the judge’s reasoning in refusing the adjournment was that the problem for the intervener would be a “Herculean but not impossible task to take instructions as we go along”.  He weighed, therefore, his right to a fair trial against the “inevitable conflict with the mother’s interest” and the need in this case as in every other to proceed without delay.  He said that it was a reason “I have borne in mind that [Mr M] did not answer the witness summons last week.  I do not intend to punish him but I am entitled to take a more robust approach”. 

7. Speaking for myself, I am not sure that he was entitled to bring that into account in weighing up the adjournment.  In my judgment, the judge erred.  He was, I regret to say, plainly wrong not to acknowledge that the right to fair trial holds sway over the difficulties that faced the mother and faced the local authority.  This case would not stand scrutiny in Strasburg, as my Lord Wall LJ indicated, and in balancing the overriding objectives to deal with the case justly, one has to bear in mind the fairness and unfairness of the respective parties.  Here it was manifestly unfair to require the intervener to be represented in the piecemeal fashion the judge seemed to envisage.  A necessity for a level playing field demanded that he be given the chance to instruct his representatives, and it simply cannot be said that the harm done to him could be undone at the end of this complicated trial if his participation in it is not fully informed and with full instructions given to his counsel.  So, I regret, the judge erred.  I would allow the appeal. 

8. The question then is what do we do with this wretched trial?  Mr Keehan has very frankly told us, for reasons which are wholly understandable, that he foresees this trial going on beyond the end of next week.  He cannot stay in the case that long.  The progress is appallingly slow.  That is not a criticism of anybody, it is a fact, and it seems to me highly unlikely that it will be completed by the end of next week.  So Mr Keehan has to withdraw.  A new leader has to be found.  Apparently there is one lurking in Temple with hands wide open waiting for this brief, but even that lucky person will need time to read into the case and that cannot be done overnight.  So whereas I was at first inclined to require Ms Campbell to get her case ready so that the court could resume on Wednesday morning, it seems to me that the trial is going to be so protracted in any event and the difficulty facing the mother is severe enough that in fairness we give her side an adequate opportunity to prepare itself, that I would adjourn the trial before HHJ Corrie until Thursday morning at whatever time the judge directs, and, in the absence of a direction, ten o’clock on Thursday morning.  I would allow the appeal to that extent.

Lord Justice Wall: 
9.I agree with everything my Lord has said.  I agree that we should give permission and allow the appeal.  I add a very short judgment of my own on one discreet aspect of the case. 

10.In my judgment Mr M’s advisers were absolutely right to seek a psychological opinion as to his capacity to give instructions.  Their first opportunity to do so arose on the 16th when he was detained.  On the 21st they applied and the judge refused.  Mr Keehan, acting on behalf of the second respondent mother, reminds me of words which I spoke in a recent case when I said:

“…such an appellant should contact the security offices of the Royal Courts of Justice … In either event, the appellant will be able to speak to a Deputy Master who, in turn, will speak to a Lord Justice. Provided the latter is satisfied that the matter is appropriately urgent, and a short stay is called for, he or she will either grant a stay, or arrange for the matter to be listed at short notice for a short oral hearing, on notice to the other parties .... In children's cases or other cases of urgency, this court can move very swiftly indeed."

11.We are told that there were conversations on the Wednesday night both with the master in question and with my Lord.  I fully sympathise with my Lord’s view which was that the matter would have to be heard inter partes, as indeed was the case, and we are told today by Mr M’s advisers that further telephone calls and faxes were sent on the following Thursday.  I have assured Mr Keehan and I assure counsel that this matter will be fully investigated although it will not form part of this judgment.  It is a thousand pities in my view this application was not heard on Friday morning, in which case the case could I think have started on Wednesday.  As it is, particularly given Mr Keehan’s difficulties, with which I understand and I fully sympathise, the case in my view, like my Lord’s, should begin on Thursday morning. 

12.Counsel for both the parents and for the mother and for the local authority have of course taken the classic line this was a discretionary case management decision made by a judge in difficult circumstances.  Like my Lord I sympathise with HHJ Corrie, but in my view the question of a fair trial is the overriding one and in this particular case it seems to me that that did not have sufficient emphasis in the judge’s thinking.  Like my Lord, therefore, I think there was an error of principle.  This court should intervene and in my judgment the trial should start on Thursday morning.

Order: Application granted; appeal allowed