A (A Minor: Preliminary Issue: Proceeding in the absence of a party), Re [2025] EWFC 346

[2025] EWFC 346Case No RG21P00502
IN THE FAMILY COURT
Date 10/03/2025
SITTING AT READING
Before
HHJ MORADIFARSitting as a judge of the High Court
Re A (A Minor: Preliminary Issue: Proceeding in the absence of a party)
Hearing Hearing dates: 10 March 2025
The father did not attend the hearing
Mr Anthony Metzer KC and Ms Elisabeth Traugott (instructed by THP Solicitors) for the mother
Miss Alice Thornton (instructed by NYAS) for the for A by her Guardian pursuant to r.16.4
JUDGMENT
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.
HHJ Moradifar :
Introduction
[1]These proceedings concern a little girl whom I will identify as A. She is five years old and lives with her mother. Her parents separated shortly after she was born. She saw her father regularly after the parents’ separation. However, on 1 October 2021 her father applied for a joint lives with order. These protracted proceedings have since continued but were interrupted by a serious incident when in the morning on 17 December 2021 the mother was confronted by two masked men in her home. She was alone and they subjected her to a horrific attack when she suffered a broken jaw, had corrosive substance poured on her face and her throat was cut in an attempt to kill her. At the time of the attack A was with her father who had picked her up earlier that morning from the mother’s home. The police have investigated this as an act of attempted murder but have not been able to charge any individuals.[2]The mother has been consistently clear that she believes the father has orchestrated the events of that day so as to achieve his ends by having A live with him. She also alleges that he has been coercive and controlling of her. During the proceedings, various attempts to reintroduce A to her father have failed and by the summer of 2024 it became apparent that the mother’s allegations would need to be adjudicated upon before the matter can progress any further.[3]To accommodate witness availability, the fact-finding hearing was listed before me on 24 February 2025 to hear the evidence of the investigating officer and thereafter for five days commencing 10 March 2025. The father was represented at the start of the hearing but sacked his legal team after the first day of the hearing. Subsequently, he applied for an adjournment of the hearing which was to continue on 10 March 2025. Since then, the father failed to attend court citing an injury to his foot as reason for not attending. The mother and the guardian invite me to dismiss the father’s application and to proceed in his absence. Therefore, this judgment is limited to addressing the father’s application for an adjournment and whether the court should proceed with the fact-finding hearing in his absence.

The law and procedure

[4]The court’s powers, practice and procedure are set out in the Family Procedure Rules 2010 (‘FPR10’). The rules must be applied consistently with the overriding objectives that are set out in Part 1. In summary it provides that the court must deal with cases “justly” which includes the case being dealt with “expeditiously and fairly,” proportionately in accordance with “the nature, importance and complexity of the issues,”“ensuring that the parties are on equal footing,” “saving expense” and allotting “appropriate court resources ….”[5]The court’s wide ranging general case management powers are set out in part 4 of the FPR10 and among the several specified powers that are set put in r. 4.1(3)(c), the court “may adjourn or bring forward a hearing”. The exercise of the court’s discretion to grant or refuse and adjournment must be made in the furtherance of the overriding objective and be fair (Solanki v IntercityTechnology ltd & Anor[2018] EWCA Civ 101).[6]Part 27 of the FPR more specifically addresses court hearings and directions appointments. R. 27.4 which is entitled “proceedings in the absence of a party” provides that:
“(1) Proceedings or any part of them shall take place in the absence of any party, including a party who is a child, if – (a) the court considers it in the interests of the party, having regard to the matters to be discussed or the evidence likely to be given; and … (a) the court considers it in the interests of the party, having regard to the matters to be discussed or the evidence likely to be given; and (4) Where, at the time and place appointed for a hearing or directions appointment, one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant. …”
[7]If the court proceeds in the absence of a party, the absent party may apply to set aside a judgment or order. The rules governing these provisions are set out in r. 27.5 and have recently been the subject of further guidance by the Court of Appeal in Kand D (Children: Sexual abuse findings) [2025] EWCA Civ 263.

The recent procedural chronology

[8]The following is a chronology of the relevant recent events concerning the applicant father’s engagement with the fact-finding hearing.a. 24 February 2025 – start of the fact-finding hearing. All parties attended and were represented. The evidence of the investigating officer was to be heard but due to her work commitment her attendance was ordered to be on 10 March 2025 when the hearing was already listed to continue for a further five days.b. 3 March 2025 (Monday) – the father signed his sixth statement which was filed and served on or close to the same. Importantly, in this statement, the father acknowledges for the first time that he knows Suspect E (a man who had been questioned by police in connection with the attack) having become aware of his identity through recent police disclosure. Suspect E said in his police interview that he did not know the father. On the same day, his solicitors came off the record as acting for him.c. 4 March 2025 (Tuesday) – 13.31 hrs the father emailed the parties to seek their agreement to adjourn the hearing listed 10 to 13 March and to be relisted after 21 May 2025 stating that on 1 March 2025 he suffered a possible fibula fracture and he is to remain sedentary on medical advice. 14.26 hrs the mother’s solicitor emailed the father stating that his request was opposed. 16.39 hrs the mother’s counsel emailed alerting the court to a possible application for adjournment and that this would be opposed. This was forwarded to the father by counsel at 17.34 hrs.d. 5 March 2025 (Wednesday) – 10.40 hrs, mother’s solicitors email the father to ascertain if he has made a formal application to the court reminding him that it will be opposed by the mother.e. 6 March 2025 (Thursday) – 9.50 hrs the father files an application at court to adjourn the matter citing his injury in the same terms and adding that he is unable to drive and he is not fit to endure cross examination whilst on medication. 10.30 hrs mother’s solicitor wrote to the court copying father into the email registering the mother’s opposition to the proposed adjournment and suggesting that father may participate remotely. 11.35 hrs mother’s solicitors write to the court copying father in enclosing a C2 application to adduce a further statement.f. 7 March 2025 (Friday) – 12.12 hrs mother’s solicitors sent to the father the electronic court bundle. 14.14 hrs the court emailed the mother’s solicitor with reference to her application for the father to provide written questions in advance of the mother giving evidence, informing them that the Circuit Judge considered this application and decided that this should be determined by the trial judge on 10 March 20205. 14.57 hrs position statement filed on behalf of the child suggesting remote attendance by the father. 15.04 hrs mother’s solicitors forward to the father the court correspondence about determination of the applications taking place on 10 March 2025.g. 9 March 2025 (Sunday) – Mother’s position statement is sent to the parties and the court in which it is suggested that the father may attend remotely.h. 10 March 2025 (Monday) – continuation of the fact-finding hearing when father failed to attend the hearing, did not contact the court nor the parties.

Analysis

[9]By a notice of hearing dated 8 August 2024 and in consultation with the parties, this matter was listed for an eight-day fact finding hearing commencing 24 February 2025 for four days and a further four days commencing 10 March 2025. The parties subsequently attended a further hearing in October to ensure that all of the relevant evidence had been marshalled and the matter was trial ready. The discussions at the hearing on 24 February 2025 was in the presence and contributed to by the parties who were all in attendance and represented by counsel and solicitors. Therefore there can be no doubt that the father had full knowledge of how the case was going to progress and a very important witness was going to give evidence on 10 March 2025. Regrettably, the father has not attended since and not engaged with the court or the parties.[10]The father appears to have been preparing and finalising his important sixth and final statement during a time that he was legally represented with the statement being signed two days after he is said to have suffered his injury. Whilst noting he suffered his injury on a Saturday, whether by himself or through his solicitors he makes no mention of this injury. The first time the parties learn of his injury and issues about his participation was on Tuesday 4 March 2025 at which time the mother’s opposition to any adjournment was made clear to him. The events following during the week of 3 March 2025 demonstrate an ever-decreasing degree of engagement by the father culminating in no engagement at all before the continuation of the hearing on 10 March 2025.[11]Leading the argument, Mr Metzer KC and Ms Traugott submit with the support of Miss Thornton that the conduct of the father and the medical evidence that he seeks to rely on are highly concerning. The father was seen by the author of the medical report (‘G’) on Saturday 1 March 2025. This was due to concerns for a football injury. The report is in the form of a short letter on behalf of Imagine Health UK Ltd. A cursory search of Companies House reveals that the company for which G was one of the six directors was the subject of a compulsory strike off in November 2023. When considered with the timing of the father’s solicitors coming off record it raises serious concerns about the validity of the father’s reasons for seeking an adjournment and the motives underlying the same.[12]I note that the entirety of the medical report is based on the father’s report of an injury and there appears to be no adequate independent verification of the same. Importantly, the medical report does not at any stage address the father’s participation or attendance at court. It may be that the letter is relevant to the father’s trade as a mobile barber. In the absence of the father adducing a more coherent medical report that addresses his participation in these proceedings and the absence of any further submissions or engagement by him in the proceedings, I must conclude that the current supporting evidence for his application attracts little if any weight.[13]Mr Metzer and Ms Traugott further submit that the questionable timing of his application and disengagement with his legal team, together with his lack of engagement with the court raises further concerns about his motivations. They submit that the contents of his latest statement in which for the first time he admits knowing one the suspects in the horrific crimes that were perpetrated against the mother is telling and may guide the court to some extent as to the father’s motivations to avoid cross examination. They also invite the court to consider the impact on the mother who has spent several years in proceedings and is highly anxious about giving her evidence and desperately hopes that these proceedings may come to a final resolution.[14]Despite his lack of engagement, I have assumed that the father is pursuing his application for an adjournment as otherwise this may lead to further delay and his protected rights demand that the application is properly addressed. For reasons that I have summarised in the preceding section, the court clearly has the power to proceed with a case in the absence of the applicant. The right to a fair trial and the right to a family life (Art. 6 and 8 ECHR respectively) are not exclusive to the applicant and are engaged for each of the parties. It is questionable if the right to family life is engaged for the applicant. However, I have not heard submissions in this regard and it is in any event unnecessary for me to reach a conclusion in this respect as in any event this must be balanced against the rights of the parties.[15]The court must apply r. 27.4 in the furtherance of the overriding objective. This in turn requires the court to deal with the matter justly by reference to the factors that I have summarised above. Whether the father’s lack of engagement is an attempt at gaining a tactical advantage or a misguided attempt at avoiding a difficult hearing, he has manifestly failed to pursue his application, to provide a reasonable excuse for doing so or any reliable evidence that would support his application. To grant his application would be to cause a serious injustice to A and her mother who have endured several years of protracted litigation only at the last moment to be denied the opportunity of cross examining the father or putting their respective case on a proper and informed foundation.

Conclusion

[16]For the reasons that I have set out above, the balance of justice and fairness demands that the case must proceed in the absence of the father who is at liberty to join this hearing at any moment he chooses to. Furthermore, without hesitation I find that any interference with his protected rights is necessary, proportionate, in pursuance of a legitimate aim and in accordance with the law. Accordingly I dismiss his application for an adjournment. _____________________________________________________________________

Cited in 2 later judgments