Avoiding procedural foul play (and costs) in the Family Court: Re, A Child [2022] 2 WLUK 309

Avoiding procedural foul play (and costs) in the Family Court: Re A Child [2022] 2 WLUK 309   

All lawyers have faced cases where they have been instructed very late in the day, with insufficient information and have then faced an unsympathetic judge. In most cases, experienced barristers can assimilate the information they require quickly, and are familiar with the law, but what happens to a litigant in person in this situation? And what chance does a lawyer have of overturning the outcome of a hearing where their client, acting in person, has not had time to prepare properly? The case of Re A Child might assist. 

The Case 

At a dispute resolution appointment in private law proceedings, after a long history of litigation, a recorder significantly altered the contact arrangements of the father based predominantly on oral evidence from the social worker as well as a section 37 report. The father went from sharing care of the child with the mother to supervised contact only. 

The social worker had attempted to discuss their report with the father before completing it but, after their original appointment was rescheduled, the father failed to answer the social worker’s call. The report was then filed and served without any discussion taking place. The father disagreed with its contents. The report recommended a shared care order where the child spent weekdays with the mother and alternating weekends with each parent, decreasing the father’s time with the child. 

On 19 October 2021, the social worker contacted the father to tell him that they would be recommending supervised contact only with the child, a further decrease from the section 37 report’s recommendation. Though the hearing was the next day, this was the first time the father had been told about the hearing and about the contents of the report (it later transpired that his address had been incorrectly recorded so he was not receiving correspondence and documents relating to the case). He was obviously extremely unhappy.   

The father and mother were both unrepresented at the time. The father sent a statement to the court to tell them that he had no time to prepare for the hearing and to ask for an adjournment.  

At the hearing, the father requested the same so that he could obtain legal advice because he disagreed with the social worker’s report and evidence. However, the social worker outlined concerning behaviour that the child was exhibiting. The recorder agreed that this behaviour was disturbing and that the current contact arrangements could not continue because of the risk of harm to the child, although no findings were made in this regard. In summary, the mother and local authority opposed the adjournment and the recorder refused to grant it. 

It was ordered that the child should stay with the mother and only have supervised contact only with the father until February 2022, by which time the parenting assessments would have been carried out. 

The Appeal 

After gaining legal representation, the father appealed on the grounds that there had been a serious procedural irregularity because he was only made aware of the hearing the day before it took place, and he had not been provided with the court documents in time to prepare. He argued that the recorder should have granted an adjournment. 

The second issue raised was that the recorder had been wrong to make the orders they did without proper evidence to substantiate them. 

The appeal was allowed and was successful based on the first issue. It was held that the recorder should not have continued with the hearing for three reasons: 

1. The father had not had time to prepare for the hearing; 

1. Important evidence given by the social worker, and which led the recorder to conclude that there was a risk of serious harm to the child, was not in any documentation provided to the court; And,  

1. The order made significant changes to the current child arrangements. 

So how should it have been dealt with? 

The appeal court held that the recorder should have adjourned the hearing in order to enable the father to obtain advice and for the social worker to provide their evidence in writing. Failure to do so amounted to a breach of the father’s ECHR article 6 rights. There was, therefore, a serious procedural irregularity under the Family Procedure Rules 2010 Part 30 Rule 30.12 (3)(b). 

The issue was not that the recorder altered the contact arrangements based on the evidence raised at the hearing by the social worker, but that the hearing should have been adjourned to allow the father to obtain legal advice. The recorder was entitled to change the contact arrangements, and of course there are cases where it is imperative that the arrangements be changed. 

Unfortunately, by the time that the appeal was heard, the issues were academic due to the time which had passed during which the father had only been allowed supervised contact. It is worth remembering in these sorts of cases that the judge should be reminded that Article 6 rights are engaged and urged to adjourn the matter to allow parties to be properly advised.