In the matter of J, T, and C (Care Orders: Concurrent Criminal and Family Proceedings: Burden of Proof)
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 17 November 2004 |
| Neutral Citation | [2004] NIFam 13 |
| Date | 17 November 2004 |
| Court | Family Division (Northern Ireland) |
| Year | 2004 |
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Neutral Citation No. [2004] NIFam 13 Ref:
GILF5118
Judgment: approved by the Court for handing down Delivered:
17/11/04
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
FAMILY DIVISION
_________
IN THE MATTER OF J, T AND C (CARE ORDERS: CONCURRENT
CRIMINAL AND FAMILY PROCEEDINGS: BURDEN OF PROOF)
________
GILLEN J
[1] This judgment is being distributed on the strict understanding that in
any report no person other than the advocates or the solicitors instructing
them (and other persons identified by name in the judgment itself) may be
identified by name or location and that in particular the anonymity of the
children and the adult members of the family must be strictly preserved.
[2] There is before the court three applications by Health and Social
Services Trust which I do not propose to identify (“the Trust”) seeking care
orders under Article 50 of the Children (NI) Order 1995 (“the 1995 Order”) in
relation to three children whom I shall identify as J aged 13, T aged 9, and C
aged 7.
Background
[3] The mother of these three children shall be identified as D. The father
of T and C shall be identified as A. They have both been represented in this
case and have participated fully in opposing the application. R is the father of
J and although he was made aware of these proceedings has taken no part in
them. D and R were the respective mother and father of a number of other
children namely S who is now 21 years of age, A1 who is now 19 years of age,
W who sadly died in 2003, and S1 aged 18.
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[4] The following are some of the salient background factual matters in
this case:
(i) Social services had been involved with family relationships from as far
back as 1998. D had contacted social services following her separation from R
advising of behavioural and medical problems with W. At that time she
attributed A1’s poor school attendance to him being bullied at school. In
August 1998 she again contacted social services advising that two of her
children had moved to reside with R. However by December 1998 the
children were residing with D and her new partner A. In February 1999 social
services were informed that A1 had not returned home from school but had
gone to his father’s house. At that stage D had told A1 that if he went to his
father’s house he was not to come back and had expressed annoyance that A1
had alleged that A was hitting him. D advised that A1 had a very vivid
imagination and that for many years had told some very convincing stories.
She attributed A1’s allegations regarding A being physically abusive to his
desire to reside with his father. On 10 March 1999 the Trust received
information from R that A1 and W had been residing with him. By April 1999
S was residing with his maternal grandmother Mrs B. D said that S had
moved out as he found it easier to study there. D again expressed concern
that A1 was alleging that A had hit him. In April 1999 social services
received an anonymous referral expressing concern about the children being
beaten by A on an ongoing basis. A home start volunteer was involved with
the family at that time and A was reported to be resistant to support from
social services. On 16 April 1999 a social worker received a further
anonymous call again alleging mistreatment by A.
(ii) Social services then investigated the allegations. Initially S stated that
A had hit him but was not prepared to elaborate and was not prepared to
speak to the police. He then left the family home and was residing with his
maternal grandparents Mr and Mrs B. He stated he had left home due to
beatings. D alleged that S had been observed by D and A masturbating and
was embarrassed about this, hence leaving home. By November 1999 social
service records indicated that A1 and S were residing with their maternal
grandparents. Social services were exploring the possibility of A1’s father
caring for him. A maternal uncle NB was also being considered as a carer for
A1. D had advised that A had left home because he had been smoking and
had been verbally reprimanded for this. D stated that A1 had told his
grandparents that he would not be returning home because his stepfather A
had hit him for eating too much cheese. D denied that A had hit A1 but felt
that A1’s behaviour was beyond their control.
(iii) On 9 November 1999 A1 reported to a social worker that A had hit him
on the face approximately three weeks previously as A had accused him of
eating too much cheese and stealing biscuits. A1 admitted that he had sold
his dinner tickets to buy cigarettes. A1 was adamant that he was not
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returning home and asked if he could go to a foster home or alternatively stay
with his maternal uncle NB. In a discussion on 10 November 1999 with NB he
alleged that three months previously W had a black eye and he believed that
A had hit him causing the injury. D said the injury was sustained as a result
of W falling. NB alleged that W had told his aunt that A had caused the
injury. On 10 November 1999 A1 had a further discussion with social
workers and alleged that W told him that A had punched on the arm and that
he had subsequently fallen hitting his eye on the corner of a table. A1 referred
to another incident, which he believed occurred approximately three years
previously, when A hit J with a rubber pipe.
(iv) On 11 November 1999 D was advised that NB was prepared to make a
complaint regarding A being physically abusive towards the children. D was
requesting reassurance that the children would not be removed from her care
due to A hitting them. D alleged that A1 had told S1 in school that “he had to
say that A was hitting him”.
(v) On 12 November 1999 A1 stated that A had hit him, slapped him
across the face and arms and grabbed him by the throat. A1 stated his mother
and siblings would be present when A hit him. He thought he had been hit
about seven times in the previous three week period. He recalled an incident
when A had hit S with a stick on the back of the legs approximately three
weeks previously. S had left the family home a number of months
previously.
It is clear however that A1 subsequently withdrew these allegations as did S.
(vi) The next referral to social services appears to be recorded for 14
February 2002 when D had advised that she was finding it difficult to cope
with W’s behaviour, specifically it being noted that W was stealing from other
family members and on two occasions within the school setting also. D
reported that she had brought W to a psychologist in the South of Ireland
arranging the appointment privately. Support was offered to the family. In
May 2002 D contacted the police regarding W’s stealing. On 13 May 2002 W
was reported as having run away from home. A attributed this to W stealing
money and his mother advising that they would be contacting the police. On
20 November 2002 W and J were reported missing to the police. W stated that
he ran away because he wanted to live with his father.
(vii) On 20 January 2003 a referral was received from an education welfare
officer expressing concern about the sexual and violent content of an essay W
had written in school.
(viii) On 15 April 2003 R contacted social services requesting arrangements
to be made for W to be transferred to his mother’s home as R had no room for
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