Two recent cases from the Court of Appeal on the application of the right to a fair hearing in the family law context demonstrate how highly fact specific this analysis will be. In Re L (A Child) (1 February 2013) the Court of Appeal (Thorpe LJ, Lloyd Jones LJ, Warren J) gave an ex tempore judgment (a summary alone of which is currently available on Lawtel) in which it found that the refusal of the judge at first instance to grant an adjournment to an unrepresented litigant violated Article 6. The father in the proceedings was seeking contact with his daughter and had his legal representation withdrawn by his solicitors very shortly before the final hearing. The Court relied in part upon the decision of the ECtHR in P v United Kingdom (2002) 12 EHRR 619, finding that although that case was based on different facts, there was a strong possibility that the general principle identified therein (namely that parties in family proceedings should have representation) would lead the ECtHR to find there had been a breach in this case. However, those seeking to use this case should bear in mind that the facts were highly sympathetic to the father. In particular, the final order that was made had severe consequences for him, prohibiting him from making further applications for contact until his daughter was 16. In addition, on appeal the father adduced evidence from his psychiatrist confirming that he suffered from a paranoid personality disorder and was not able to represent himself in any useful way in the court process, which was likely to exacerbate his feelings of paranoia and persecution. The Court of Appeal held if this evidence had been available to the judge, he would have recognised that the father was a vulnerable applicant, disadvantaged by his disorder and unfit to litigate without representation. The scope of Article 6 is likely to be tested increasingly often in the Court of Protection with the changes to legal aid (outlined below) due to take effect in April.
The Court of Appeal reached the opposite conclusion on the facts of Re GB (7 February 2013). In that case the Court of Appeal (Rix LJ, Lloyd LJ and McFarlane LJ) gave an ex tempore judgment (again, available in summary alone on Lawtel at the moment) in which it found that there was no breach of Article 6 when an application for an adjournment made by a mother in care proceedings was refused. The mother and father had initially been jointly represented but shortly before the final hearing they both sought an adjournment to find alternative legal representation. When this was refused, the mother proceeded as a litigant in person and the father withdrew. Special guardianship orders were made for two children and a third was placed in foster care. There was evidence that the mother has psychological issues but the Court held that the judge had been conspicuously helpful in ensuring the parties were on an equal footing, assisting the mother with what witnesses to call, allowing her free reign when she questioned witnesses, intervening on her behalf when the local authority were questioning witnesses and encouraging her to re-instruct her legal team. The Court was clear that Article 6 ECHR would not be breached in every case where a litigant in person was refused an opportunity to adjourn to obtain legal representation.