A Father and A Mother and in the matter of FX (A child)
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Neutral Citation | [2023] NICA 9 |
| Date | 10 February 2023 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 9
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE12043
ICOS No: 18/56745/02/A01
Delivered: 10/02/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
___________
Between:
A FATHER
Appellant;
and
A MOTHER
Respondent.
IN THE MATTER OF FX (A CHILD)
___________
Mr Martin O’Rourke KC with Mr Mulvenna (instructed by McCourt McGlone, Solicitors)
for the Father
Ms Margaret-Ann Dinsmore KC with Ms Boal (instructed by Carson Thompson,
Solicitors) for the Mother
___________
Before: Keegan LCJ, McCloskey LJ and Kinney J
___________
KEEGAN LCJ (delivering the judgment of the court)
We have anonymised this case as it involves a child and arises in the context of
children’s proceedings. Nothing should be published which would identify the
child or her family. We refer to the child as FX which was a cypher used at first
instance.
Introduction
[1] This is an appeal from the decision of McFarland J (“the judge”) of 7 October
2022. The appeal arises on foot of an application brought by the father for a
residence order and a contact order in respect of his daughter, who at the time of the
judgment at first instance, was 7½ years of age. These applications were brought
2
pursuant to Article 8 of the Children (Northern Ireland) Order 1995 (“the Children
Order”).
[2] Prior to determining whether a residence or contact order should be made the
judge was required to adjudicate upon allegations of sexual abuse made against the
father. The parties agreed that there would be a split hearing to first determine the
material facts before the final welfare disposal. This was in accordance with a
well-established “split trial” procedure, see Re B (Split Hearing): Jurisdiction [2001]
FLR 333 and In the matter of H (A Child) [2011] EWCA Civ 741.
[3] This is an appeal from the first stage determination of facts. The appeal is
brought as of right as it falls within the terms of section 35(2)(g)(i) of the Judicature
(Northern Ireland) Act 1978 concerning as it does residence and contact with minors.
[4] The judge reached this determination after a hearing which spanned two days
on 28 and 29 September 2022. During the hearing the judge heard evidence from a
number of witnesses including the mother and the father. He also considered the
source material in relation to disclosures made by the child to a variety of sources.
[5] The judge provided a written judgment which explains his determination
after the “fact finding” hearing. The outcome he reached is expressed as follows:
“In all the circumstances, for the reasons that I have set
out above, I am satisfied that it is more likely than not the
father sexually touched his daughter FX with his finger to
the vaginal area for the purposes of his sexual
gratification.”
Factual Background
[6] The mother and father are married parents, now separated. They married in
2012. They lived for a relatively short time together after the birth of the subject child
in 2015. The separation date referred to in the papers is 14 February 2016 when the
father announced to the mother that he had feelings for another woman. It follows
that the parties lived together for a short period of time with FX. Prior to the birth of
FX fissures in the marital relationship were caused when in 2013 father engaged in
inappropriate text messages with the mother’s niece who was 13-14 years at the time.
The judge at first instance also helpfully in his judgment sets out the content of text
messages that the appellant sent to his niece at paras [14]-[18] of the judgment which
we will not repeat. The theme of them is encapsulated in one text in the following
terms between the father and his teenage niece:
“Sry jus me being random lol only u could pull off lookin
cute in them jammers lol xxx.”
To continue reading
Request your trial