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FAMILY PROCEEDINGS: Re M (Children) [2009] EWCA Civ 1216
Date:4 DEC 2009

(Court of Appeal; Thorpe and Wall LJJ; 27 October 2009)

The father had applied for contact. The father was bi-polar, and there was evidence that he was violent when not regularly taking lithium. A fact-finding hearing was scheduled to determine the extent of the father's violent behaviour towards the mother and children. On the day of the hearing, the father's lawyer applied for an adjournment, on the basis that the father was not well enough to give evidence on that day; medical corroboration of his ill health was provided, and he had not failed to attend previous hearings. However, the judge concluded that the father's absence was related to the prospect of cross-examination on the issue of his past violence and refused to adjourn the case, on the basis that delay would be contrary to the interests of the children. He went on to dismiss the contact application, observing that there was no reasonable prospect that the father would succeed, given the clear history of violence and the children's general opposition to contact with the father.

The father's appeal was allowed. If delay was to be central to the judicial decision, then the nature of the delay had to be ascertained. The judge had not enquired into the potential delay by consulting with the listings office. The dismissal of the father's case at the fact-finding hearing had denied the father his right to a fair trial. The only acceptable conclusion would have been to grant the adjournment for the shortest possible time that could be arranged with the court office, with a warning that a further adjournment would not be granted.