In the matter of P and others (Care order: Schedule of findings sought: Fairness of the hearing: Allegations against non parties: Issue estoppel)
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 2006 |
| Neutral Citation | [2006] NIFam 2 |
| Date | 31 January 2006 |
| Court | Family Division (Northern Ireland) |
Neutral Citation No. [2006] NIFam 2 Ref:
GILC5460
Judgment: approved by the Court for handing down Delivered:
31/01/2006
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
FAMILY DIVISION
________
IN THE MATTER OF P AND OTHERS (CARE ORDER: SCHEDULE OF
FINDINGS SOUGHT: FAIRNESS OF THE HEARING: ALLEGATIONS
AGAINST NON PARTIES: ISSUE ESTOPPEL)
________
GILLEN J
[1] I direct that there be no identification of the name of any of the children
in this case, the names of either of the parents or any other name or material
that may lead to the identification or whereabouts of these children or the
family. I make a further such order in relation to those persons discussed in
paragraph 15(1) of this judgment.
[2] A Health and Social Services Trust, which I do not propose to name
(“the Trust”) makes an application before me for a Care Order under Article
50 of the Children (Northern Ireland) 1995 (“the 1995 Order”) in relation to
four children namely a boy P who is now 14 years of age, a girl S who is now
10 years of age, a girl C who is now 8 years of age and a boy R who is now 3
years of age. I shall identify the mother as E, the father as M and the family
name as X.
[3] Ms Walsh QC, who appeared on behalf of E, and Mr Long QC who
appeared on behalf of M, conducted this case with commendable skill on
behalf of their clients and made it clear from the outset in the course of their
submissions and skeletons arguments, that a number of finite issues were at
large in the case. Mr Long accepted that rehabilitation of the children to
either respondent was not a realistic option. Ms Walsh accepted, that
although the mother would love the children to be returned to her, the court
would not make any order facilitating this. In essence a number of matters
relating to the threshold criteria were not materially contested by either of the
two respondents and the strength of their case and submissions were
confined to allegations of sexual impropriety against the parents, aspects of
the care plan and contact.
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[4] Preliminary Matters
(1) At the outset of this case Mr Long drew my attention to a report of Mr
Quinn Consultant Clinical Psychologist of 24 August 2005 in relation to M’s
capacity to fully engage in the proceedings. Mr Quinn indicated that M
suffers a severe learning debility and mental handicap with intelligence in the
bottom 5% of the population. His intellectual ability was such that he was
severely disadvantaged in all areas of life function. While Mr Quinn
concluded that he had the ability to consult, assist the lawyer and to provide a
reasonable account of his behaviour prior to and during the issues of concern
in this case, he would require considerable assistance and support throughout
the proceedings especially in the area of complex legal terminology and
procedure. Similarly he felt that it was likely that he would experience the
proceedings as extremely stressful and might exhibit adverse mental health
reactions given his flimsy and volatile mental state. In order to ensure that
not only children but the adult participants in family proceedings cases are
afforded a fair trial, it is imperative that all family courts ensure hearings are
tailored as far as possible to meet the intellectual limits of those involved in
the hearings. Consequently not only did I permit this man to have beside him
throughout the hearing an advocate from Bryson House in Belfast, but, after
careful consideration with counsel, it was agreed that proceedings should be
halted periodically to allow his attention span to be refocused and to have the
hearing explained to him as the case progressed. This resulted in the trial
being elongated and disrupted to some extent but if the rights of participants
are to be observed then such disruption is a small price to pay to ensure
justice is done. I observe that it is extremely important that at the termination
of this judgment extreme care is taken to explain the full contents to him in
terms which are appropriate for his understanding. I add in this context that
it is equally important that at the termination of this judgment someone is
appointed, and subject to representations to the contrary I nominate the
Guardian ad Litem, to explain in detail to the children in child appropriate
terms the meaning and contents of this judgment. It is imperative that the
courts do not overlook in family cases the overwhelming necessity to ensure
that the reasoning of a judge or magistrate is carefully explained to each child
in circumstances where, as in this case, it was not deemed appropriate for the
children to be present in court during the hearing.
(2) In a recent authority in the Court of Appeal in England namely Re D
(Children)[2005] EWCA Civ 825, the court approved the concept of a
“Schedule of Findings Sought” being made by the applicant Trust. Although
that was in the context of a court directing a preliminary fact finding hearing,
nonetheless I believe that it is of general application and should be adopted
by Trusts in cases such as they where a series of separate allegations are
made. I respectfully adopt the guidance of Ward LJ at paragraph 13 when he
said:
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“Just how detailed that schedule should be must
be a matter left to the judgment of the local
authority’s legal team. There is obvious merit in
condescending to as much detail as possible not
only to give the parents notice of the case against
them but also to focus the lawyers’ attention on the
issues and the evidence needed to establish or
rebut those allegations. On the other hand some
restraint may be necessary to prevent the
document becoming too unwieldy.”
I consider that this case is a classic example of where such a schedule is
important so that separate determinations can be made on individual
allegations. In this instance the Trust relied on a list of the allegations
contained in a comprehensive report made by the Guardian ad Litem on 11
November 2005 at para 5.27, I consider that to have been an inadequate
approach on the part of the Trust. In the first place, the schedule ought to
have been prepared earlier than this and in the second place it should be
prepared by the Trust so that the parents are fully aware of what precisely the
Trust is relying on and not merely the assertions of the Guardian ad Litem.
Accordingly this is a matter that should be prepared in similar future cases by
the Trust and directed by judges, magistrates and masters at direction
hearings in appropriate instances.
(3) Since the investigation of allegations of sexual impropriety by the
parents against young children was a central issue in this case, it is important
at the outset that I draw attention to the legal principles governing the
standard of proof in such cases set out by Lord Nicholls in Re H and R (Child
Sex Abuse: Standard of Proof) [1996] 1 FLR 80 and adverted to in two recent
Northern Ireland cases of South and East Belfast Health and Social Services
Trust v E and C (Unreported) MCLF5399 18 November 2005 and Re J, T and C
(Care Orders: Concurrent Criminal and Family Proceedings: Burden of Proof)
(Unreported) GILF5118 17 November 2004. In a matter as important as this I
make no apology for quoting in extenso what Lord Nicholls stated at pages
95h-97c:
“The Standard of Proof.
Where the matters in issue are facts the standard
of proof required in non criminal proceedings is
the preponderance of probability, usually referred
to as the balance of probability. This is the
established general principle. There are exceptions
such as contempt of court applications, but I can
see no reason for thinking that family proceedings
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