Appeal by Mother (M) against the refusal of her application for the adjournment of an imminent final hearing in care proceedings.

 The proceedings concerned a boy J.  J’s Mother was 19 when he was born and not living with the Father. Proceedings were issued in August 2018 concerning J suffering several injuries whilst in the care of his Mother and Mr K. It was not possible to establish which adult was responsible for the injuries. However, in August 2019, findings were made that the Mother had suffered severe abuse at the hand of J’s Father.

The Local Authority changed its care plan from adoption to rehabilitation of the child to the Mother, and her new partner Mr M. J was placed in the Mothers care on the 30^th November 2020 but was subject to an interim care order. At this point, the Mother was pregnant with Mr M’s child. Following a violent incident between Mother and Mr M in December, J was placed back into foster care, and the Local Authority revived their application for placement.

On the 18^th February 2021, the Judge directed that there should be a ten day finding of fact after the 1^st April. Later discussions between the parties identified two available starting dates, one in April in front of a circuit judge and the other in early June /July before the presiding Judge, however, parties were unable to agree. The Judge considered the April date preferable.   

Following this, the Mother made an application to seek an adjournment of the hearing. It was submitted predominantly on the grounds that the Mother was extremely concerned that the proposed date fell within a period where she would be heavily pregnant, particularly considering that she previously had an early delivery with J. Therefore, it was asserted that she would not be able to take an active part and that a fair hearing could not take place in those circumstances. The Mother referred the Court to the Equal Treatment Bench Book in which the following guidance is provided:

Consideration should always be given to accommodating pregnant women and new breastfeeding Mother in any proceedings, whether they are parties, witnesses or representatives. This may require sensitive listings, start and finish times and breaks during the proceedings, sometimes resulting in a case going part heard.

A woman who is heavily pregnant or has just given birth should not be expected to attend a court or tribunal unless she feels able to do so. Although every woman is different, this is likely to apply at least to the month before the birth and at least two months after the birth. This period would be longer if there were complications at birth, even a telephone hearing may be too difficult if the women is looking after the baby on her own. This may mean that a hearing has to be adjourned.

 The Local Authority, supported by the Father and Guardian, opposed the application. 

 It was submitted that whilst it was appreciated that it is far from ideal for the final hearing to proceed whilst the Mother is some eight months pregnant, this must be balanced against the prospect of a delay of another four months for this child and proceedings hitting the 3-year mark. Effectively the needs of J’s stability and certainty in his life should be the paramount consideration. Furthermore, The Equal Treatment Bench Book is not law, and rather it is simply guidance.

It was asserted that the Mother had not provided medical evidence of difficulties within the pregnancy, and if an adjournment were to be granted at this stage, further adjournments would likely follow.  Additionally, it was highlighted that practical considerations could be put in place, such as giving evidence via video link and allowing regular breaks.

The Judge refused the Mothers application, indicating that it was his view that on balance, it was right to proceed in April, and it is essential to try and make this work for J.

The Mother appealed the decision.

The Court of Appeal held that the Judge had wrongly adopted a try it and see approach. There was no good reason to require the Mother to participate in this important hearing at such an advanced stage of her pregnancy, and her application to adjourn the hearing should have been granted.

Lord Justice Jackson commented – The touchstone for case management decisions is justice, not welfare. The Judge had failed to address in his order why he had departed from the Equal Treatment Bench Book. The guidance was applicable in the case and advised that women in the last month of pregnancy should not be expected to attend a court or tribunal unless she feels able to do so.

Furthermore, the final hearing in the circumstances was very important to this family and therefore bound to be exceptionally stressful for a person in this young Mother’s position. In respect of the consideration made that her evidence could be undertaken via video link, this overlooks the important fact that a party participating in a court hearing remotely is still attending Court and should be able to engage fully with the process. The Mother is in any event entitled to expect that she could attend for the whole of the hearing in person if she wants and certainly that she be able to choose to attend Court to give evidence.

Samuel Sharp – Pupil Barrister