Fergus v Marcail
| Jurisdiction | Northern Ireland |
| Judge | Gillen LJ |
| Neutral Citation | [2017] NICA 71 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 07 November 2017 |
1
Neutral Citation: [2017] NICA 71
Ref:
GIL10417
Judgment: approved by the Court for handing down
Delivered:
7/11/2017
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
BETWEEN:
FERGUS
Appellant;
and
MARCAIL
Respondent
________
Before: MORGAN LCJ, GILLEN LJ and DEENY LJ
________
GILLEN LJ (giving the judgment of the court)
ANONYMISATION
[1] It is appropriate that we follow the nomenclature adopted in the High Court
which ensured that the parties to this case were not identified by name. Thus the
appellant is identified as Fergus, and the respondent as Marcail and the child, the
subject of these proceedings, as Elliot. This will ensure that nothing would or should
be reported which would identify any of the parties to this appeal or in particular
the child who is the subject of these proceedings.
The Appeal
[2] This is an appeal from an order made by McBride J on 23 February 2017 to the
following effect:
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• That a Residence Order dated 1 June 2010 made by Stephens J shall be
extended until such time as the child Elliot, who is the subject of this appeal,
reaches his eighteenth birthday.
• The appellant shall have contact with the child in terms of the contact
agreement scheduled thereto.
[3] The appeal is solely in relation to the Residence Order. We observed in the
course of the hearing that the appellant sought to make his consent to the contact
order conditional upon the Residence Order not being extended. However the
Notice of Appeal contained no appeal against the contact order and hence we have
not taken that fresh matter into account. However we have included the contact
order in an appendix to this judgment.
[4] Both the appellant and the respondent appeared in person. Ms Murphy of
counsel appeared on behalf of the child instructed by the Official Solicitor.
Grounds of Appeal
[5] The appellant, who is a personal litigant, has set out five grounds of appeal.
Essentially however there are two aspects of his appeal namely:
(i) Procedural unfairness.
The appellant contends as follows:
• He was provided neither with an opportunity to cross-examine the
respondent regarding her application to extend the residence order nor the
social worker and Official Solicitor who had prepared reports on the issue
notwithstanding the court order was made allegedly on the ground of these
reports.
• The principle of adversarial justice was therefore impugned.
• His inability to cross-examine the professionals who had spoken to Elliot
deprived him of the opportunity of illustrating that the prolongation of the
Residence Order had not been fully explained to Elliot in terms of his loss of
autonomy for the next two years - for example the appellant asserted the boy
would be unable to live with a female partner if he wished - and that
legislation required exceptionality to justify this.
• His rights under Article 6 of the European Convention of Human Rights and
Fundamental Freedoms (“the Convention”) had been violated.
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5 cases
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A Health and Social Care Trust and Ms TA and Mr K and Mr C and Mr and Mrs SB and In the matter of Sam and Leah (Minors) (Residence Order: Declaration: Contact Order)
...not defined and given family cases will obviously depend on the facts and there should be a degree of flexibility, see Fergus & Marcail [2017] NICA 71 and the views sought of all. In this case it is particularly important that the Guardian ad Litem supports the application in Leah’s case. S......
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HM and VM
...management is raised in a number of established family cases. It was explained by Lord Justice Gillen in the case of Fergus and Marcail [2017] NICA 71. In Re B (A Minor) (Contact) [1995] 2 FLR 1 the English Court of Appeal referred to a spectrum of procedure for family cases. This has been ......
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A Health and Social Care Trust v MS TA and Others
...it due respect in this case. Sir John Gillen highlights the issue in Chapter 16 of the Family Justice Review. See also Fergus v Marcial [2017] NICA 71. I bear in mind that a child is a person with human dignity and not merely the object of adult disputes. The child has a right to be heard a......
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A Grandmother and A Mother and A Father and in the matter of MA (A male child aged 9 years)
...The test to be applied is whether the lower court either erred in law or was wrong (see Re B [2013] UKSC 33). [19] In Fergus v Marcail [2017] NICA 71 the father complained that he had been denied the opportunity by the first instance judge to cross-examine the mother, a social worker and th......
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