Jersey Unreported Judgments

Child custody - directions hearing.

[2012]JRC105

Royal Court

(Family)

22 May 2012

Before     :

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

 

IN THE MATTER OF V

Advocate C. R. G. Davies for the Minister.

Advocate B. J. Corbett for the Father.

Advocate S. E. Fitz for the Mother.

Advocate M. J. Haines for C and B.

judgment

the commissioner:

1.        I have two issues to be dealt with in this directions hearing held in advance of a fact finding and contact hearing scheduled for the four days commencing 12^th June, 2012.  The fact finding is in relation to certain allegations of abuse including sexual abuse by the father. 

2.        The children are the subject of final care orders made on 27^th January, 2012, but the threshold was reached without reference to the allegations of abuse.  Those had been separated off on 16^th January, 2012, to be dealt with subsequently in the context of contact between the children and their parents, in particular the father.  Although the father had consistently sought contact, in particular with B, there was no application of his before the Court at that time and therefore to keep control of the issue of contact, the Minister issued her own application under Article 27(2) of the Children (Jersey) Law, 2002 ("the Children Law").  In the interim, the Court has ordered that there should be no contact between the father and the children pending the fact finding/contact hearing. 

Application for an adjournment

3.        Mrs Corbett, for the father, applied for the fact finding/contact hearing to be adjourned pending the outcome of a criminal investigation being conducted by the police into the allegations of abuse by the father.  The existence of that investigation was disclosed, she said, by the Minister on 5^th May, 2012. 

4.        The allegations of abuse came to light in the early part of 2011 and the resulting police investigation caused the original trial dates of 7^th and 8^th February, 2011, to be adjourned.  The investigation was completed in the summer of 2011, with an indication from the police that no prosecution would be brought at that stage.  The investigation then appeared to become active again and C underwent ABE interviews in November and December 2011.  The police were unable to agree to disclosure of those interviews into the care proceedings, thus leading to the decision to separate off the fact finding exercise in relation to the abuse allegations and for the care proceedings to proceed in January 2012, on the basis of other evidence which was sufficient to reach the necessary threshold.  

5.        It would seem that phase of the investigation was then concluded, but re-activated again in March of this year, when the police obtained the consent of the mother, father and Minister to review the children's medical records.  The investigation is apparently on-going.  It is worth noting in this context that the first interim care order was made as long ago as 29^th July, 2010, so these proceedings have already been the subject of very considerable delay, largely on account of the police investigations.  There is no means of knowing whether the current investigation will lead to criminal proceedings. 

6.        Mrs Corbett submitted that the fact finding/contact hearing should not take place until the criminal investigation, and presumably any prosecution that might follow it, had been concluded for the following reasons:-

(i)        The customary law principle that "le criminel tient le civil en état" (See Le Gros Traité du Droit Coutumier de l'Ile de Jersey" at page 461 (1943)) applies so that in the event that proceedings for criminal and civil matters co-exist, the civil matter must be suspended, pending determination of the criminal matter. 

(ii)       There is a real danger of prejudice to the fair trial of the defendant in the potential criminal proceedings. 

(iii)      The same questions of fact would have to be decided in both sets of proceedings. 

7.        Mrs Corbett referred me to the Court of Appeal decision in Glazebrook-v-Housing Committee of the States of Jersey [2000] JLR 301, where the Court of Appeal considered this customary law principle and summarised its true application in this way:-

"(a)     Where there are, or may be, concurrent civil and criminal proceedings, the Jersey courts have a discretionary power to control the conduct of the civil proceedings so as to ensure that there is no real danger or prejudice to the fair trial of existing or potential criminal proceedings. 

(b)       The burden of persuading the court to exercise this power is on the person seeking such exercise. 

(c)       If the same or similar questions of fact will have to be decided in both sets of proceedings, it will generally be wrong to allow a decision to be made in the civil action before it is made in the criminal proceedings, because that would create a real danger of prejudice to the fair trial of the criminal proceedings. 

(d)       But it may be appropriate even in such a case to allow the interlocutory stages of the civil action to proceed so that there is not undue delay. 

(e)       If and in so far as the civil action can be decided without impinging on the question of fact to be decided in the criminal proceedings, then the civil action can be allowed to go to trial."

8.        In light of the current police investigation, which it is anticipated will be taking place at the same time as the fact finding/contact proceedings, she submitted that the Court had a discretionary power to control the conduct of the civil proceedings so as to ensure that there is no real danger of prejudice to the fair trial of the defendant in any potential criminal proceedings against him. 

9.        In terms of prejudice, she said that the decision of this court would be published and notwithstanding the anonymisation of the judgment to preserve the identity of the children, that alone would not be sufficient to ensure that the criminal investigation and potential trial were not prejudiced.  The father had already apparently been the subject of public abuse and accusations of paedophilia from people outside the Court and therefore reasonably believed that the result of the fact finding hearing will not be confidential to the parties involved.  In addition, she said, as both proceedings are based on the same facts, that prejudice is inescapable.  In addition to the possibility of witnesses talking and of rumours potentially affecting any future jury, the witnesses against the father would have the advantage of a "dry run" so to speak and would thus be prepared for any cross-examination that took place in the criminal proceedings. 

10.      The Court in any criminal proceedings would be dealing with exactly the same issues and facts as in the fact finding/contact proceedings.  A finding of guilt based on the criminal standard would obviate the need for a fact finding hearing, where the standard of proof is on the balance of probabilities.  This would, Mrs Corbett said, result in substantial savings of costs for the benefit of the public purse.  Moreover, she argued, it would be an absurdity if the civil proceedings concluded that the evidence of the allegations was insufficiently probative and the subsequent criminal trial convicted the father on the same facts.  In such a case, the issue of contact would need to be re-visited anyway. 

11.      Finally, she said, it is a remote argument that any further delay would offend the paramountcy principle of Article 2 of the Children Law.  Contact had been suspended between the father and the children since February 2011 and any further delay in respect of the deterioration of the bond and the relationship between the father and the children will be de minimis.  

12.      Glazebrook was concerned with ordinary civil proceedings held in public, but I am concerned here with public law proceedings brought in the Family Division under the Children Law.  I was referred by Mr Haines to the article "The Interplay Between Criminal and Family Proceedings" by Pamela Scriven QC and Timothy Hanson (Jersey and Guernsey Law Review, October 2010) which contained a summary of three English cases, which it is helpful to set out, English common law having, I was informed by Mrs Corbett, a similar underlying principle to that contained in our customary law:-

"(i)      R-v-Exeter Juvenile Court ex p H & HR-v-Waltham Forest Juvenile Court ex parte B.  These were linked applications for judicial review of youth court decisions to refuse to adjourn care proceedings pending the hearings of the criminal charges on the basis that further delay would be contrary to the best interests of the children.  Both applications were refused, the Divisional Court ruling that -

there was no bar to the hearing of the care proceedings where criminal proceedings were pending;

in both cases the justices had taken all relevant matters into account and considered the risk of possible prejudice to the applicants against the overwhelming need for the children to have their future settled with the minimum of delay.  

(ii)       Re TB (Care Proceedings: Criminal Trial).  Applications for care orders on the grounds of neglect were made in respect of four children in a case in which criminal charges had also been laid.  On the application of the father the fact-finding was vacated so that the criminal trial of the parents could take place before the applications for care orders were heard.  The Guardian appealed.  The Court of Appeal held -

where there were parallel proceedings the welfare of the child should take precedence over the family who faced criminal proceedings;

the fact that criminal proceedings were pending was not of itself a reason to adjourn care proceedings.  It needed to be shown that some detriment would be caused to the children if the care proceedings were not adjourned;

the issue of delay was all-important.  That said, the court acknowledged that there would be cases in which the child's welfare would be best served by the care proceedings taking place after the criminal proceedings had been concluded;

in determining what was in a child's best interests, it was relevant for the court to consider what the effect would be on the parents' trial of the care proceedings being heard first although that would not of itself be a determinative factor;

in the present case the outcome of the care proceedings was unlikely to be greatly influenced by the outcome of the criminal proceedings. 

(iii)      Contrast the case of Re L (A Child).  The case involved the identification of the perpetrator of injuries to a child.  The father was represented by the Official Solicitor in care proceedings and did not give evidence.  At a fact finding hearing the judge was unable to identify whether he or the mother was the perpetrator.  In criminal proceedings which had yet to be heard, the father alone was charged with inflicting the injuries, and the mother was charged with neglect.  The mother would have a chance to cross-examine the father in the criminal proceedings (if he gave evidence) which she had not had in the care proceedings.  The Court of Appeal (per Wall LJ, as he then was) held that the outcome of the criminal proceedings was clearly relevant to the outcome of the care proceedings and that the criminal proceedings were likely to throw up material which was likely to inform the final hearing of the care proceedings."

13.      Glazebrook establishes that it will generally be wrong to allow a decision to be made in civil proceedings before it is made in criminal proceedings because that creates a real danger of prejudice to the fair trial of the criminal proceedings.  However, in proceedings under the Children Law, Article 2 provides that the child's welfare should be the Court's paramount consideration and the Court has to have regard to the general principle that any delay in determining the question with respect to the upbringing of a child is likely to prejudice the welfare of the child.  It follows from this that it is the welfare of the children that takes precedence over the father, who may face criminal proceedings.  In my view, the principles set out by the English Court of Appeal in Re TB (Care Proceedings: Criminal Trial) [1995] 2 FLR 801 offer helpful guidance to the approach of this Court where there are parallel proceedings or potentially parallel proceedings of this kind. 

14.      Of the two children, C is aware that there is a hearing this June and B, who is more vulnerable, is generally aware that there are proceedings on foot.  B has consistently expressed a wish to see her father.  C has consistently expressed the contrary wish, which the father respects.  It is clear from my reading of the documents presented to me that it is overwhelmingly in the interests of the children for there to be finality in what to them must seem interminable proceedings.  Those interests must prevail over any potential cost savings to the public purse that Mrs Corbett has referred to. 

15.      As made clear in Re TB, prejudice to the fair trial of the father is a relevant matter for me to consider, though it is not of itself determinative.  I have considered that, and in my view, there is no real danger of prejudice to his fair trial should the fact finding/contact hearing proceed in June, and this for the following reasons:-

(i)        Unlike ordinary civil proceedings, the hearing will be in private. 

(ii)       Any judgment issued by the Court would be anonymised in ordinary course, but if criminal proceedings were on foot, or thought to be very likely, then publication of that anonymised judgment could be held back. 

(iii)      The father is protected by the provisions of Article 70(4)(2) of the Children Law, which provides:-

"A statement or admission made in such proceedings [an application for an order under Part 4 or 5 of the Children Law] shall not be admissible in evidence against the person making it or his or her spouse in proceedings for an offence other than perjury."

(iv)      If necessary, specific undertakings may be utilised to further avoid any prejudice. 

(v)       To the extent that witnesses may regrettably talk or spread rumours (if they have not already done so) this is an issue that faces any defendant in criminal proceedings, but that kind of potential prejudice can be and is routinely addressed in the selection of the jury. 

(vi)      There is no evidence of any detriment to the children if the hearing is not adjourned.  On the contrary, adjournment would, in my view, be detrimental. 

(vii)     Whilst it is true that the witnesses may have the advantage of a dry run in terms of cross examination, this point as Miss Davies points out, cuts both ways as the father would have the advantage of hearing the witnesses and how they respond to cross examination in advance of any criminal trial. 

(viii)    The outcome of any criminal trial is not relevant to the hearing in June.  The Court will be well able to make its own decision, applying the civil burden of proof on the evidence that will be presented to it. 

16.      For all these reasons, I reject the application for an adjournment. 

Screen

17.      Miss Fitz applied for the mother's evidence to be given with the use of a screen, so that she would not be in the view of the father when giving her evidence.  She referred me to the Court of Appeal decision in Baglin-v-AG [2005] JLR 180:-

"22.    In Att. Gen-v-Myles, the prosecution applied for a witness to have the benefit of screens.  The Deputy Bailiff's ruling is summarized in the judgment of this court, delivered by Southwell, JA on Myles's appeal against his conviction, in the following terms:-

'The Deputy Bailiff, in giving his ruling, said that, on January 14th, 2005, it was clear to him that (the witness) when giving evidence was extremely nervous of doing so and feared the possible repercussions, and was comforted by the use of screens on that occasion.  In the English case of Schaub and Cooper it had been said that for adult witnesses screens should be used only in the most exceptional cases.  But since then in England the position had been changed in relation to adult witnesses subject to fear or distress in connection with testifying by the Youth Justice and Criminal Evidence Act 1999, ss. 17-20 and 22-23.  The Deputy Bailiff considered that Jersey common law must move in line with current needs and not be tied to what an English court had said in 1993.  He considered that he had to balance the interests of the witness, in being able to give evidence to the best of his ability, against any possible prejudice to the defendants, and the need to ensure a just trial.  He took the view that [the witness] was in fear of the two defendants, and the interests of justice lay in [the witness] giving evidence with the protection of screens.  Any possible prejudice to the defendants could be removed by an appropriate direction to the jury.'

In the Myles judgment, Southwell JA went on to comment on the approach the judge should take when an application of this sort is made and we adopt it as applicable, mutatis mutandis, in the instant case:-

'In the judgement of this court, the Deputy Bailiff was entirely right to recognize that Jersey common law must move forward, especially in the protection and assistance of witnesses in criminal trials.  In every case in which it is sought to use screens to shield a witness, the judge has first to be satisfied either that the witness may be affected in giving evidence by fear or distress if not screened from the defendants, or that the quality of a witness's evidence may be adversely affected, or that for some other reason applying specifically to the witness, the witness may be so affected.  If, and only if, the judge is satisfied of this, the judge will then need to balance the adverse effect on the witness, if there is no screening, against the potential prejudice to the defendant, if there is screening.  The judge in this way has to balance the just treatment of the defendant with both the just treatment of the witness and the interests of justice in the trial being fair to both the defendant and the witness.  The factors mentioned in s.17 of the English 1999 Act are, for the most part, unlikely to be relevant in cases in this jurisdiction but if they are relevant they will no doubt be taken into account by the judge in exercising his discretion.'"

18.      Screens have been and are used in criminal cases, but there is no authority for their use in civil proceedings.  However, I can see no logical reason why this method of support for a witness should be restricted to criminal cases.  It is in the interests of justice generally whether conducted in civil or criminal proceedings that witnesses should be able to give their evidence to the best of their ability, provided the process is fair. 

19.      Although these are not criminal proceedings, the reality is that the father will be facing serious allegations of abuse, and therefore, as in a criminal case, I need to balance the interests of the mother in being able to give her evidence to the best of her ability against any possible prejudice to the father, and the need to ensure that the process, albeit civil, is fair. 

20.      I heard evidence from the mother, so that I had a basis upon which I could exercise my discretion.  It did not seem to me appropriate that the mother should be cross-examined by Mrs Corbett, for the father, and there was no application for her cross-examination, but of course Mrs Corbett was able to address me on the evidence that I had heard. 

21.      The mother told me that she was scared, indeed terrified, of the father and what he had done to her children.  She found everything hard to talk about and if she had to give evidence in his presence, she would not give evidence at all.  She was scared as to what he might do outside the Court and would be distressed at the whole process.  Although she had attended previous hearings in the presence of the father, she had not given evidence in these proceedings before. 

22.      Miss Fitz submitted that the mother was a vulnerable witness, was in fear of the father and the evidence to be given was in part of an intimate nature.  The mother's demeanour was not an issue for the father in these proceedings, which were being conducted before Jurats and not a jury and there was no prejudice. 

23.      Mrs Corbett resisted the application for screening.  The use of a screen would significantly prejudice the father's position, she said, suggesting to the Court that he was an intimidating individual and attempting to manipulate the proceedings.  It may be that the mother is uncomfortable about giving evidence, as many witnesses are, but there was evidence from the social workers in this case to suggest that she has a tendency to be untruthful and on that basis it was important that her body language when giving evidence was clear to all parties, so that instructions may be given on her evidence which should not be limited to what is said. 

24.      I do not accept that Jurats, as permanent judges of the Court, will be affected in any way to the prejudice of the father by the use of screens.  They will of course be given the standard direction in that respect.  It is true that the father will be deprived of the ability to see the demeanour of the mother giving evidence if a screen is deployed, but that has to be weighed against the effect of her giving evidence in his sight, and, if she gives evidence at all in those circumstances, the adverse effect it will have on the quality of that evidence. 

25.      I am persuaded by the submissions of Miss Fitz that the interests of justice in this case require the use of a screen. 

Directions

26.      On the basis that the case is not adjourned, there was broad consensus upon the directions being sought by the minister.  Mrs Corbett was concerned to know precisely what parts of the extensive documentation generated in the case the minister will be relying upon in relation to the abuse allegations.  Miss Davies pointed out that the schedule of findings specified in the case of each allegation the documents relied upon, so that information is in the hands of Mrs Corbett, but that document will be up-dated by 25^th May, 2012. 

27.      Mrs Corbett's draft directions referred to the father adducing expert evidence of his own, but that was not pursued at the hearing; it would be resisted in any event by the other parties at this late stage. 

28.      There was discussion about the logistics of the Court viewing the DVDs of the ABE interviews.  Mrs Corbett made it clear that although at the hearing it was likely that small parts of those interviews would be referred to, she did require the Court to have viewed all of the interviews, so that they could be seen properly in context.  All counsel were agreed that the members of the Court should undertake this task privately prior to the commencement of the proceedings. 

29.      Subject to any final points counsel may wish to raise, the directions will therefore be as follows:-

"IT IS DIRECTED THAT:-

1.        Paragraph 6(iv) of the Act of Court dated the 16th January, 2012, shall be amended as follows:-

(iv)      the applicant, first respondent and guardian may file any witness statements/reports by the 25th May, 2012;

(v)       the second respondent may file any witness statement by the 1st June, 2012. 

2.        The applicant shall file and serve a bundle, to be agreed if possible, no later than the 6th June, 2012. 

3.        the parties shall no later than the 25th May, 2012, identify and agree sections of the DVD recordings of A's ABE interview and C's ABE and Triangle interviews to be viewed at the fact-finding hearing. 

4.        The applicant shall make arrangements for the agreed sections of the DVD recordings to be viewed at the fact-finding hearing. 

5.        The first respondent be permitted to give her evidence at the fact-finding hearing screened from the sight of the second respondent. 

6.        The transcripts of the second respondent's police interviews on the 9th June, 2011, and the 16th January, 2012, shall be disclosed to the following experts:-

(i)        Professor Helen Dent;

(ii)       Dr Bryn Williams; and

(iii)      Mrs Ruth Emsley. 

7.        The guardian may file a statement/report on the sole issue of contact by close of business on the 5th June, 2012. 

8.        There will be liberty to apply." 

Authorities

Children (Jersey) Law, 2002.

Le Gros, Traité du Droit Coutumier de l'Ile de Jersey at 461 (1943).

Glazebrook-v-Housing Committee of the States of Jersey [2000] JLR 301.

The Interplay Between Criminal and Family Proceedings by Pamela Scriven QC and Timothy Hanson (Jersey and Guernsey Law Review, October 2010).

Re TB (Care Proceedings: Criminal Trial) [1995] 2 FLR 801..

Baglin-v-AG [2005] JLR 180.