B v Derbyshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1991 |
| Court | Family Division |
SIR STEPHEN BROWN, P AND WAITE, J
Care proceedings – second hearing in respect of child 20 months after first hearing – no record of findings of fact at first hearing – no case to answer found at first hearing – whether doctrine of res judicata could apply – whether doctrine was applicable to care proceedings.
Child cases – doctrine of res judicata – whether likely to be applicable.
The household consisted of the step-mother, her husband, four step-daughters, and a boy. In 1987 the husband was convicted of indecently assaulting one of the girls and in subsequent care proceedings a care order was made in respect of that girl. Further care proceedings were instituted in respect of the other three girls and the boy and came before a juvenile court in February 1988. The magistrates made supervision orders in respect of the three girls. So far as the boy was concerned, the court records showed only that the magistrates found that there was no prima facie case to answer. No issues of fact were recorded and none were decided. During 1989 the local authority became concerned about the position of the three girls and the boy. The local authority applied that the supervision orders in respect of the three girls be discharged and care orders made. The local authority made a fresh application in respect of the boy based on the grounds in s 1(2)(b), (bb) and (c) of the Children and Young Persons Act 1969. The matter came before the juvenile court in October 1989. The court discharged the supervision orders and made care orders in respect of the three girls. So far as the boy was concerned the magistrates found that, in the absence of new evidence, the doctrine of res judicata prevented them from hearing evidence in respect of the boy as this had been adduced in the earlier completed hearing. They therefore made no order in respect of the boy.
The local authority appealed by way of case stated.
Held – allowing the appeal: There were serious limitations to the application of the doctrine of res judicata in children's cases. In the lives of children, events seldom stood still for long enough to make it likely that a tribunal considering the same child at successive hearings would find itself confronted at the second hearing with the same facts. In care proceedings the court was considering a continuing responsibility of the local authority for the child. It was difficult to see how the doctrine of res judicata could be applied to a state of affairs existing 20 months after previous court proceedings. In the context of care proceedings the doctrine was most unlikely ever to be applicable. In the present case it was clear that there was additional
evidence before the court in October 1989 relating to events subsequent to the hearing in February 1988. Further, it could not be said that the matter in this case was res judicata as no issues of fact were decided at the earlier hearing. Consequently, there could be no estoppel per res judicatem. The magistrates were wrong to find that the doctrine of res judicata applied. As the local authority were not contemplating any further proceedings at this stage, the appeal would be allowed and no further order made.
AppealAppeal by way of case stated from Alfreton juvenile court.
Mhairi McNab for the local authority.
Jane Drew for the child.
Christopber Butler for the step-mother.
SIR STEPHEN BROWN, P.This is an appeal by way of case stated from the justices sitting in the petty sessional division of Alfreton in Derbyshire on 10 October 1989.
The facts giving rise to the appeal involve a somewhat complex family history. The appeal concerns a little boy, S, who was born on 19 November 1984. He is the grandson of the lady now in the position of his step-parent because she is now married to his father. He is the son of the daughter of Mrs B and of Mr B (the elder) who has married Mrs B. The family history is not without relevance and I should shortly state it.
Mrs B was originally married to a Mr X and they had six children who are all now grown up. One of the children of that marriage was a lady called M, who is the mother of little S, the subject of these proceedings. Mrs B, as she now is (then X), was divorced in 1972 and her husband Mr X, married another lady, a Miss C, by whom he had four daughters. Those four daughters were, at the time of the relevant proceedings, aged between 11 and 17 years. In 1980 Mr X and his second wife (formerly Miss C) were divorced and Mr X remarried his first wife, who is now Mrs B. They were granted, jointly, the custody of all the four girls of Mr X's marriage to the former Miss C.
However, in 1983 Mr X and the lady now named Mrs B were divorced for the second time and Mrs B (as she now is) was granted the sole custody of all the four girls who are the daughters of Mr X. They are, therefore, her step-daughters.
In 1985 Mrs B (as she now is) married her present husband Mr B and they lived as a family with the four step-daughters of Mrs B and the little boy, S, who was born on 19 November 1984 to Mrs B's daughter, M. The father is not known.
In the family unit there were Mrs B and her husband Mr B, the four step-daughters of Mrs B and her grandson, who is little S.
The position then became more complicated because in 1987 Mrs B made a "referral" as it is called, to the social services department, complaining that her step-daughter, D – then aged 14½ – was complaining that Mrs B's husband, Mr B, was "playing about with her", that is to say, indecently assaulting her.
That matter was investigated first of all by the social services and then by police. In due course, Mr B was arrested and charged with indecently assaulting his step-daughter. On 8 September 1987, at Ilkeston magistrates' court, he pleaded guilty to
an offence of indecently assaulting that girl and a probation order for one year was made as a result.
Prior to the hearing at Ilkeston magistrates' court, the girl concerned in these proceedings, D, was made the...
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