Jersey Unreported Judgments

[2011]JRC111

royal court

(Samedi Division)

9^th June 2011

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

IN THE MATTER OF O

Advocate V. Myerson for the Minister.

Advocate C. Hall for the Father.

Advocate S. A. Franckel for the Mother.

Advocate B. J. Corbett for O.

judgment

the commissioner:

1.        On 25^th May, 2011, I directed that this matter proceed to a final hearing on 27^th - 29^th July, 2011, without a fact finding hearing concerning the allegations made by D that the father committed a grave and criminal assault on him outside the family flat in St Helier on 1^st November, 2010. 

2.        An interim care order was granted in respect of O on 15^th January, 2010, following the release of her parents from HMP La Moye in light of the mother's heroin use and the father's criminal activities which placed her at risk of suffering significant harm. 

3.        O was initially placed in foster care with daily contact being permitted in accordance with a plan agreed by all the parties.  Rehabilitation to the care of her parents took place successfully and O returned to their care on 19^th July, 2010.  A second child, C was born in 2010, and the family have remained living together since that date. 

4.        The father was arrested and charged with a grave and criminal assault on D on 2^nd November, 2010, and was remanded in custody.  He entered a plea of not guilty.  He was committed to and indicted before the Royal Court on 4^th March, 2011, when bail was granted and the trial fixed for 17^th May, 2011. 

5.        On 17^th May, the prosecution accepted the father's plea of not guilty and the Court pronounced a verdict of not guilty, discharging the father from the proceedings. 

6.        My understanding is that the prosecution accepted the father's plea of not guilty because D was not prepared to give evidence against him.  In any event, the fact that the criminal court has found the father not guilty does not prevent this Court from seeking to establish the facts applying the lower civil burden of proof, namely on a balance of probabilities.  It is quite possible that even where a criminal court applying the higher criminal burden of proof has returned a verdict of not guilty, a civil court applying the civil burden of proof, namely the balance of probabilities, may find that the assault did take place. 

7.        If it were to order a fact finding hearing in relation to this matter, then that would take place on 27^th-29^th July, 2011, with the final hearing on 1^st-3^rd November, 2011.  If no fact finding hearing was directed, then the final hearing would proceed on 27^th-29^th July, 2011.  

8.        These proceedings in respect of O have already been delayed pending the outcome of the criminal proceedings against the father.  The parties were directed on 12^th January, 2011, to attend before the Bailiff's Judicial Secretary to list a further directions hearing and final hearing dates within seven days of the conclusion of the criminal proceedings which they have done - hence the directions hearing before me on 25^th May, 2011. 

9.        The decision whether or not  to conduct a fact finding hearing is a matter of judicial discretion (see A County Court-v-DP, RS, BS (by the Children's Guardian) [2005] 2 FLR 1031 and The President's Guidance in relation to Split Hearings dated May 2010 issued by Wall J the President of the Family Division).  My power to exercise that discretion as a single judge was not discussed at the hearing but the fact that the matter was listed before me as a single judge indicates that all counsel were of a view that this was a matter to be dealt with by a single judge, in my view rightly so.  Under Article 15(1) of the Royal Court (Jersey) Law 1948, the Bailiff (or Commissioner in his place) shall be the sole judge of law and under Article 1(a), questions of procedure are deemed to be questions of law.  In my view, deciding whether or not there should be a fact finding hearing is part of the process of assembling the evidence upon which the issues in the proceedings will be tried and is therefore a matter of procedure.  

10.      Useful guidance on the use of fact finding hearings is contained in The President's Guidance in relation to Split Hearings:-

"5.      Judges and magistrates should always remember that the decision to direct a split hearing or to conduct a fact finding hearing is a judicial decision.  It is not a decision for Cafcass or for the parties.  It is a decision to be taken by the court.  Thus the court should not direct a fact finding hearing simply because the parties agree that one is necessary or because Cafcass says that it cannot report without one.  Such considerations are, of course, to be taken into account, but they are not conclusive.  In any event, the focus of any report is a matter for the court. 

6.        Judges and magistrates should always remember that a fact finding hearing is a working tool designed to assist them to decide the case.  Thus a fact finding hearing should only be ordered if the court takes the view that the case cannot properly be decided without such a hearing. 

7.        Even when the court comes to the conclusion that a fact finding hearing is necessary, it by no means follows that such a hearing needs to be separate from the substantive hearing.  In nearly every case, the court's findings of fact inform its conclusions.  In my judgment it will be a rare case in which a separate fact finding hearing is necessary."

11.      The factors relevant to the exercise of the Court's discretion were identified by McFarlane J in A County Court-v-DP, RS, BS (by the Children's Guardian as follows:-

"The authorities make it plain that, among other factors the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:-

(a)       The interests of the child which are relevant but not paramount;

(b)       the time that the investigation will take;

(c)       the likely cost to public funds;

(d)       the evidential result;

(e)       the necessity or otherwise of the investigation;

(f)        the relevance of the potential result of the investigation to the future care plans for the child;

(g)       the impact of any fact finding process upon the other parties;

(h)       the prospects of a fair trial on the issue;

(i)        the justice of the case".  

12.      Applying this guidance to the facts, the incident in question concerns the father and a third party, D.  It has not related to O's direct treatment by her parents but to their lifestyles and any harm which might occur to O as a result.  Her interests in having the facts of the incident determined, if considered to be in her interests, must be balanced against other factors.  One direct effect upon O, if a fact finding is deemed desirable, will be the automatic delay in achieving the final outcome of these proceedings.  The final hearing will necessarily be delayed from the current listed dates in July until November. 

13.      The criminal trial was listed for three days, and accordingly if a fact finding within these proceedings is considered appropriate, a three day listing will be required.  In addition to the use of court time and its attendant costs, the cost to the public purse of the Minister's and O's legal representation and the involvement of the Guardian should be borne in mind, 

14.      D apparently refused to give evidence in the criminal proceedings but in any event, even if summonsed to attend Court, he may well be a hostile witness and the likelihood of a fair trial which would result in the determination of this issue is therefore poor. 

15.      Even without a fact finding hearing the fact that D has made an allegation that he was assaulted by the father is a fact which the Court can in any event properly take into account.  The weight to be attached to it will be a matter for the Court.  It is demonstrative of O's circumstances while back in the care of her parents and is therefore relevant to the appropriateness of future plans for her. 

16.      A key factor is that irrespective of whether or not there was a grave and criminal assault, it was common ground between the parties that O's removal from her parents would not be sought.  The issue for disposal is likely to concentrate on whether a supervision order or family assistance order will be more appropriate.  In other words, the case can properly be decided without a fact finding hearing. 

17.      None of the parties sought to persuade me that a fact finding was necessary.  Indeed the parties agreed with the submission of the Minster that the evidential outcome of such an exercise was unlikely to be determinative of the issue in question and it was accordingly likely to have little effect upon the outcome of the proceedings.  In the premises, and in the exercise of my discretion, I directed that there should be no fact finding hearing and that the matter should proceed to a final hearing in July. 

Authorities

A County Court-v-DP, RS, BS (by the Children's Guardian) [2005] 2 FLR 1031.

The President's Guidance in relation to Split Hearings.

Royal Court (Jersey) Law 1948.