In Re B and T (care proceedings: legal representation): CA 2001

Thorpe LJ said: ‘The assertion by Mr Miss Booth that art 6 obliged the judge to discontinue on either 12 June or, if not then, on 14 June, seems to me to be an unrealistic submission. In this jurisdiction the proceedings are not adversarial proceedings. The judge always holds an inquisitorial responsibility, It is his difficult task to maintain a balance between the rights of the children to an early determination of their future. The obligation of the judge to avoid delay is expressed in the statute. I cannot see that it could be said that this judge, supremely experienced in this field of work, fell into error in balancing the rights of the children to determination against the rights of the parents to a fair trial. It is not a case in which the parents were denied the opportunity to put their case. It is manifest that the judge endeavoured, to the best of his ability, to ensure that the received the support which is conventionally given by a judge and advocates to unrepresented litigants.
. . When one considers the requirements of art 6 of the Convention, it is relevant to remember that art 6 requires the entire proceedings to have been conducted on a fair basis. It is not appropriate simply to extract part of the process and look at that in isolation. In this case, as my Lord has said, there had been abundant legal advice and guidance of the most skilled nature available to Mr and Mrs T before the matter came before Wall J. There had also been the possibility, indeed the obligation, to produce further evidence: steps that had not been taken on the instance either of Mr and Mrs T or of those were acting for them. I do not therefore agree that, in assessing the impact of the Convention in this case, one should necessarily start on the day upon which the adjournment was sought, ignoring everything that had gone before. Further, I do not agree that, in proceedings of this nature, in which the children as well as the parents have an intimate and pressing interest, one should look at the question of fairness to the parents in paramount priority to fairness (in terms of a prompt decision, which is another aspect of art) to the children. In the passage that my Lord has read, it is clearly apparent that the judge had, and properly had, the interests of the children well in mind when he was making his decision.
However, I put those matters to one side. I will look at the case on the basis upon which Miss Booth put it in support of the submission that art 6 did require a decision, either to adjourn the trial or to stop it at the point that I have indicated. We have to remind ourselves, as I have already said, that art 6 is concerned with the overall fairness of the proceedings. The article itself lays down very few absolute rules. That said, both the jurisprudence of the European Court and simple common sense, of a kind that an English lawyer can immediately identify, do require in general terms that certain elements are present in any judicial proceedings, an obvious example is the right and ability of those concerned in the proceedings to put their case. Here Mr and Mrs T had ample opportunity and occasion, as the judge was satisfied they had done.
Another consideration is that there should be equality of arms between the parties but, in my view, that does not mean that there must necessarily be legal representation on both sides, indeed on all sides, more particularly where everybody concerned in the case was acutely aware of the need give every assistance to people who were representing themselves. Provided that the tribunal is itself aware o and constantly reminds itself of the duty of fairness, it is very much a matter for that tribunal, and is recognised in the jurisprudence of the Convention as being to a substantial extent a matter for that tribunal, whether, in all the circumstances, it is able to discharge the case fairly.’

Judges:

Thorpe LJ, Buxton LJ

Citations:

[2001] 1 FCR 512

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

CitedRe GB (Children) CA 7-Feb-2013
Appeal against determination in care proceedings. Part way through the mother had sought an adjournment so as to instruct different lawyers, but this had been refused. . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 15 May 2022; Ref: scu.541525