Hackney London Borough Council v G
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Family Division |
Wall, J
Care proceedings – evidence – parties agree care order should be made but do not agree factual substratum – whether court under duty to investigate disputed facts – whether court should re-investigate facts against parent after parent's acquittal in criminal proceedings.
Evidence – care proceedings – whether court under duty to investigate disputed facts – relevance of doctrine of issue estoppel and abuse of process and oppression.
The local authority applied under s 31 of the Children Act 1989 for a care order in respect of an 8-year-old boy. The child had been in the care of the father. It was agreed by all parties that there should be a care order and, further, that an order be made under s 91(4) of the 1989 Act that no application under that Act by the father could be made without leave of the court. However, the bases upon which a care order should be made were not agreed. The father accepted that a care order should be made on the bases: (i) that the child was psychologically disturbed; (ii) that he (the father) did not have a settled home or relationship with a woman and, therefore, could not provide the child with the necessary care; (iii) that he suffered from a significant impairment in social functioning and was psychologically vulnerable; and (iv) that, as a consequence, if the child were to return to his care the child would be likely to suffer significant harm.
The local authority sought a care order on issues of fact tabulated into six items. These were that the father:(1) had physically abused the child;(2) had neglected him by not sending him to school and by leaving him with his grandmother who was unfit to care for him;(3) had exposed the child to sexual abuse and encouraged him to participate;(4) was closely associated with men involved in the kidnapping, drugging, sexual abuse, and deaths of at least three children;(5) was a participant in the sexual activities with one of the boys referred to on the night the boy was killed and was present when he was killed;(6) was aware of the identity of those responsible for at least one of the deaths and did nothing to disassociate himself from those persons.
Findings on items (5) and (6) could only be made in the care proceedings if statements made by the father to police officers were admitted into evidence. Those statements were the only evidence against the father in criminal proceedings in March 1993 when he was charged with conspiracy to bugger and indecent assault. The criminal case was withdrawn from the jury by the trial Judge who ruled that the statements were unreliable under s 76(2) of the Police and Criminal Evidence Act 1984.
As a preliminary point counsel for the father submitted first, that provided the court was satisfied on the minimum basis conceded by the father that the threshold criteria of s 31 of the Children Act 1989 were met, the court should investigate no further but make the care order as agreed by the parties. Counsel for the father submitted secondly, if his first submission failed, that the court should exclude from the care proceedings any consideration of the statements to the police which, in the criminal proceedings, the trial Judge had ruled to be unreliable as it would be an abuse of process for the local authority to be permitted to re-investigate that material. Further, counsel submitted that it was unnecessary, oppressive, and not in the public interest to re-investigate the matters referred to in those statements.
Counsel for the local authority submitted that s 31 of the 1989 Act required the court to investigate the factual substratum underlying the fulfilment of the threshold criteria. Further, counsel submitted, it was inappropriate for the court to make a care order on an incomplete premise.
Counsel for the local authority and counsel for the guardian ad litem both submitted that the doctrines of abuse of process and oppression had no real place in children's cases, where the question was the welfare of the child and not the jeopardy of the parent.
Held – (1) By s 31(2) of the Children Act 1989 the court could only make a care order if it was satisfied that the child was suffering, or was likely to suffer, significant harm which was attributable to the care, or absence of care, given to the child by the parent against whom the order was sought. The statutory criteria were strict and no agreement between the parties could, or should, deprive the court of its duty to satisfy itself that those criteria were met. The court had a duty to investigate. However, the nature of the investigation would depend on the facts of the particular case. For example, if the parties were agreed not only that a care order was appropriate but were also agreed on the factual substratum underlying the fulfilment of the threshold criteria, then the investigation might properly be limited to a perusal of documentation and approval of an agreed order. In the present case, although there was agreement that there should be a care order, there was no agreement about the factual substratum. It would not be an appropriate exercise of the court's powers under s 31 of the 1989 Act to take the lowest common denominator, based on the ipse dixit of the party to whose care the significant harm suffered by the child was attributable, as an appropriate basis for the making of a care order. Counsel for the local authority was, therefore, entitled to lead evidence in relation to items (1) to (3) of the tabulated issues of fact (above).
(2) Where there was agreement that there should be a care order but the factual basis upon which the order should be made was not agreed, the court should limit its investigation to those parts of the evidence which were strictly relevant to the issue of significant harm. The court must balance a number of factors in deciding the scope of the investigation. These factors included the time likely to be spent investigating any given issue and the cost to public funds of the investigation weighed against the likely evidential result of the investigation, all seen in the overall context of the need to limit the investigation to matters strictly necessary for a
proper determination of the statutory criteria. If a re-investigation of the father's acquittal was open to the court and necessary for a proper determining of the care proceedings, the fact that this would take a considerable amount of time and involve costs would not be conclusive. A distinction should be drawn between matters required for the satisfaction of the s 31 criteria (the father's treatment of the child) and the allegations against the father in the criminal proceedings the findings on which were not necessary for a proper determination of the s 31 proceedings. In the circumstances and exercising the court's discretion to control its own procedure, counsel for the local authority would not be entitled to place in evidence any statements by the father obtained in the context of the criminal proceedings. However, counsel could advance material in support of item (4) of the tabulated issues of fact (above) which was based on material not contained in the statements made by the father to police officers.
(3) On an application under s 31 of the Children Act 1989 the court must always be free, in appropriate cases and where necessary, to investigate and make findings on the underlying facts relating to the alleged abuse of a child, even where an investigation of the same facts in criminal proceedings had led to the acquittal of one of the parties of those proceedings. The doctrine of issue estoppel did not apply. The position was the same where, as in this case, the Judge in the criminal proceedings had ruled that a confession was unreliable under s 76 of the Police and Criminal Evidence Act 1984. However, the process of re-investigation was more sensitive and would only be embarked upon if strictly necessary. It would not amount to an abuse of process nor would it be oppressive because a...
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