MR S and A Health and Social Care Trust and Ms T and In the matter of Josef (A minor: Breach of human rights: Declaration: Damages: Costs)
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2020] NIFam 20 |
| Date | 05 October 2020 |
| Court | Family Division (Northern Ireland) |
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Neutral Citation No: [2020] NIFam 20
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE11319
ICOS No: 20/051811
Delivered: 05/10/2020
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
FAMILY DIVISION
___________
IN A MATTER OF AN APPLICATION UNDER
THE HUMAN RIGHTS ACT 1998
___________
BETWEEN:
Mr S
Applicant;
-and-
A HEALTH AND SOCIAL CARE TRUST
and
Ms T
Respondents.
IN THE MATTER OF JOSEF (A MINOR: BREACH OF HUMAN RIGHTS:
DECLARATION: DAMAGES: COSTS)
_________
Ms McCaffrey BL (instructed by Fisher and Fisher Solicitors) for the Applicant
Ms Sholdis BL (instructed by DLS) for the Respondent Trust
Ms Kelly BL (instructed by Tiernans Solicitors) for the Respondent Mother
___________
KEEGAN J
Nothing must be published which would identify the child or his family. The
name given to the child is not his real name.
Introduction
[1] This case relates to a child who I have called Josef who is now nine years and
five months old having been born in May 2011. The application centres around the
events of 5 and 6 August 2020 when for a period of some 27.5 hours the child was
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placed in foster care. The applicant maintains that this was both unlawful and in
breach of human rights. This application pursuant to the Human Rights Act 1998
(“the Human Rights Act”) is brought by the father of the child Mr S. A further
application has been made to join the child as a plaintiff (as a cost saving measure
rather than issue separate proceedings) which I accede to. The relief sought in this
case is set out by the applicant as follows:
(1) A declaration that the detention of the child Josef in stranger foster care from
11.30 pm on 5 August 2020 until 8.30 pm on 6 August 2020 was unlawful.
(2) A declaration that the removal and retention of the child Josef in stranger
foster care from 5.00 pm on 5 August 2020 until 8.30 pm on 6 August 2020 was
in breach of the Article 8 rights of the child and the father and an unnecessary
and disproportionate interference in their rights to private and family life.
(3) Damages in favour of both the father and child in the sum of £3,000 for the
child and £1,500 for the father and costs of these proceedings.
Background Facts
[2] The child with whom these proceedings are concerned has had a rather
unsettled life due to the problematic presentation of both the parents Ms S and Mr T.
They were married but separated in 2017. The relationship was characterised by
domestic violence and alcohol abuse. The child has two adult siblings namely V
who is aged 26 years of age and VA who is aged 18 years of age. On 14 February
2012 V was convicted of a rape which occurred in 2010 when he was 16. The victim
was a 17 year old girl who was unable to give consent to the sexual act. V spent 30
months in prison and a further 30 months on licence. V was released from custody
in September 2014 and was subject to a sexual offences prevention order for five
years. He was also made the subject of notification requirements indefinitely. The
judge was asked to consider whether V posed a risk to children as that would be a
gateway to making further orders. However, he found that there was no evidence of
this. As such upon his release from prison V returned to the family home to live
with his parents and siblings and the family worked with Social Services to ensure
there were no issues or concerns arising. It is common case that V has not breached
any of the orders made in relation to him and he has co-operated with professionals.
[3] After the separation of the parents in 2017 the three children remained in the
care of Ms T. It is common case that from in and around 2016/2017 Mr S had no
contact with this family and at the date of this hearing he accepts that he has not
engaged with Josef for some years and lives outside the jurisdiction in Dublin. So
the second named respondent Ms T looked after Josef in the recent past. However,
this was not without its difficulties.
[4] Problems arose for Josef in March 2020 when he made very serious allegations
that he was mistreated by his mother and partner and that his mother was abusing
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