K v P (Children Act Proceedings: Estoppel)
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1994 |
| Court | Family Division |
WARD, J
Family proceedings – estoppel – both parents applying for residence orders in respect of their children – mother alleging sexual abuse of children by father – hearing in magistrates' court – magistrates granting residence order to mother and contact order to father – reasons indicating no sexual abuse by father – contact arrangements breaking down – father making application in High Court – whether court estopped from hearing mother's allegations of sexual abuse – application of doctrine of estoppel in Children Act proceedings.
The parents had two children: a girl born in 1986 and a boy born in 1988. Both parents applied to a magistrates' court in April 1991 for the custody of the children. Various interim orders were made but the substantive hearing did not take place until May 1992. The mother's case was that the father had sexually abused both children. The father's case was that the mother ill-treated the children and that in so far as the girl had acquired sexual knowledge this had come from the mother who had talked about sexual abuse in front of the children. The local authority intervened in the proceedings, seeking a supervision order on the ground of the conflict between the parents.
After hearing the evidence the magistrates made a residence order in favour of the mother and ordered that the father should have contact. In their reasons the magistrates recorded that the girl had some sexual knowledge inappropriate for her age and learning but that there was no evidence to prove that this resulted from her contact with the father. There must have been issues as to the mother's fitness as a mother; as to whether the children had been sexually abused and, if so, whether the father was the perpetrator of the abuse; and, if they had not been abused, whether they had been schooled by the mother into saying what they had been saying. Although these issues must have been joined before the magistrates, in their reasons they recorded no statement as to what facts were disputed nor their findings on such facts.
Following the breakdown of contact arrangements, the father made an application for a residence order. Amongst the directions given were directions for the Official Solicitor to represent the children and for his expert to conduct a thorough investigation into the allegations of sexual abuse. At the hearing counsel for the father sought to argue that the court should not entertain any inquiry into whether the children had been sexually abused and, if so, whether abused by the father, as it was contended that the mother was estopped from making those assertions by reason of the findings of the magistrates.
Held – as to the issue of estoppel: (1) In order to create an estoppel per res judicatum
three requirements had to be satisfied. First, that the judgment in the earlier action was of a court of competent jurisdiction, final and conclusive, and on the merits. Secondly, the parties in the earlier action and those in the later action were the same. Thirdly, that the issue in the later action in which the estoppel was raised as a bar must be the same issue as that decided in the earlier action. As to the first requirement, under the procedures established by the Children Act 1989, one of the fundamental policies was that there should be a common jurisdiction exercised by magistrates' courts, county courts and the High Court. In that context it would be wholly invidious to say that if a matter was heard and determined in a magistrates' court the High Court should not take any account of the findings of that court. Therefore, the magistrates' court was a court of competent jurisdiction and the magistrates' findings, such as they were, were final and conclusive and made on the merits. Consequently, the first requirement was satisfied. As to the second requirement, the parents were the main participants in both sets of proceedings; and as to the third requirement, the issues involved were the same. Consequently, the second and third requirements were also justified.
(2) When considering the application of the doctrine to child care cases the court should have regard to the fact that it was founded on considerations of public policy which were twofold. First, there was the important principle of certainty of decision: it was wrong for the same matter to be litigated twice. Secondly, it was wrong as a matter of principle for a litigant to be vexed twice with having to defend the same complaint made against him. However, there was a countervailing public policy that children should be protected. Balancing these two aspects of public policy in a child case the court had an overriding duty to the child to ascertain the truth and would, if necessary, refuse to be bound by a rule of estoppel. In the present case the court would not hold itself bound by the finding recorded by the magistrates and would admit all the evidence and look at the whole case.
Statutory provisions referred to:Guardianship of Minors Act 1971, s 11B.
Cases referred to in judgment:B v Derbyshire County Council[1992] 2 FCR 14.
DSW Silo-und Verwaltungsgesellschaft mbH v Owners of the Sennar; The Sennar (No 2) [1985] 1 WLR 490; [1985] 2 All ER 104.
Frost v Frost [1968] 1 WLR 1221; sub nom F v F [1968] 2 All ER 946.
Hayward v Hayward (Orse Prestwood) [1961] P 152; [1961] 2 WLR 993; [1961] 1 All ER 236.
Hull v Hull [1960] P 116; [1960] 2 WLR 627; [1960] 1 All ER 378.
Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 WLR 906; [1981] 3 All ER 727.
Porter v Porter [1971] P 282; [1971] 3 WLR 73; [1971] 2 All ER 1037.
Rowe v Rowe [1980] Fam 47; [1979] 3 WLR 101; [1979] 2 All ER 1123.
Robin Rowland for the father and grandparents.
David Hershman for the mother.
Edward Dismorr for the Official Solicitor.
MR JUSTICE WARD.I shall give judgment in two parts, dealing first with a question as to the application of the doctrine of estoppel in Children Act
proceedings, which can stand separately and be reported separately, if there is any value in what shall fall from my lips, and dealing secondly then with the facts of this case, which may not be of any interest outside the four walls of this court.
On 11 April 1991 the father of two children, a girl born on 21 October 1986 and a boy born on 24 July 1988, applied to a magistrates' court under s 11B of the Guardianship of Minors Act 1971, as amended, for an order that legal custody of those children be committed to him, alternatively that he have access to them, and further for an order that parental rights over those children be awarded to him, he not being married to the children's mother.
At a time shortly thereafter, the mother issued her complaint that she be granted their legal custody.
Various interim orders for access were made, but the matter did not proceed auspiciously quickly. On 7 February 1992 the local authority intervened in issuing their own application under the Children Act 1989, which had now come into force, asking for a supervision order, and setting out the reasons for their intervention in these terms which form a very succinct summary of the problems in this case:
"Mother and putative father have been unable to reach a consistent voluntary arrangement of contact by putative father with the children. Mother has stopped putative father's contact and declined any social service department's offer of supervised contact and further work with the children. Both parties continue to make allegations concerning the other, and the children are left in a position of divided loyalty. [The...
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Re B (Minors) (Issue Estoppel)
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