High Court of Justice in Northern Ireland Queen's Bench Division Decisions

(i)        a declaration that the decision of the court is unlawful;

(ii)       an order of certiorari removing the decision to the High Court of Justice in Northern Ireland and quashing the said decision;

(iii)      an order of mandamus removing the said decision into the High Court of Justice in Northern Ireland and directing the Family Care Centre to review or rehear the case.

Background

"but a court exercising jurisdiction over its ward must never lose sight of a fundamental feature of the jurisdiction that it is exercising, namely that it is exercising a warship, not an adversarial, jurisdiction.  Its duty is not limited to the dispute between the parties: on the contrary, its duty is to act in the best way suited, in its judgment, to serve the true interest and welfare of the ward.  In exercising wardship jurisdiction, the court is a true family court.  Its paramount concern is the welfare of its ward.  It will therefore sometimes be the duty of the court to look beyond the submissions of the parties in its endeavour to do what it judges to be necessary".

            In any hearing under the 1995 Order, the child's welfare shall be the court's paramount consideration.  Accordingly in the Family Court judges may be somewhat more interventionist than in the purely adversarial system of other divisions.  Thus it was entirely appropriate for this judge to have intervened during the case to assist the parties in, as he described it, "providing some framework or context for negotiated outcome to the matter".  Such an approach is not evidence of pre-judging the matter but rather an exercise in appropriate and measured judicial activism to secure the best interests of the child.  Similarly I entirely endorse the practice of this judge to write out before the hearing a statement of the history of the case and the various stages that the case had passed through as evidence not only of the required careful and considered approach to family cases but also as a helpful aide memoire to identify all the issues to be considered at the hearing.  It is a fundamental prerequisite in family law cases that the judges and magistrates have fully read what is often voluminous material provided prior to the hearing in order to approach the case in an organised and informed manner.  The original criticisms of this judge for taking both of these steps was in my view entirely misplaced.  Similarly I note that Mr Lavery did not pursue suggestions contained in his skeleton argument that the court had been seen as hostile, that cross examination was curtailed or that the hearing did not have the appearance of fairness to the extent that counsel, solicitor and Dr McDonald did not feel that there would be any point in calling evidence.  I consider that such suggestions were entirely groundless and in particular the last of these arguments was positively risible.  Solicitor, counsel and professional witnesses have a duty to the court to ensure that all the evidence that they consider relevant is placed before it.  Accordingly a judge is entitled to proceed on the basis of the evidence placed before him and to assume the absence of any particular piece of evidence has been based on rational and informed consideration rather than on a basis of professional pique.     

"In general terms I found him to be an impressive witness.  He was calm and polite.  Of particular relevance, in my opinion, (the father) did acknowledge that he had behaved badly in the past and in particular in and around 2002." 

Thereafter Dr Simpson was called.  At paragraph 11 of his affidavit the judge records as follows;       

"It will be noted that Dr Simpson had treated (the father) over a period of time and had seen him on approximately 20 occasions.  He had last seen him on 4 August 2004, approximately 5 weeks prior to the hearing.  He had concluded, in essence, that (the father) was a changed man.  It appears that (the father) had indicated that he would willingly undergo any further treatments that Dr Simpson may have thought to be necessary but, in fact, Dr Simpson did not believe that any such treatment was indicated.  I find Dr Simspon's evidence to be impressive and reasoned.  I was impressed with the apparent change in (the father) over the years as reflected in Dr Simpson's clinical findings and her views as to the necessity of further treatment."

"My reasons for doing so was that it was completely inappropriate halfway through a hearing, after the close of the appellant's case and 11 months after proceedings were first issued by (the father).  At no time, so far as I am aware, was it ever suggested by the solicitor or counsel for (the mother) or by Dr McDonald at the time of the application that it was necessary that Dr McDonald should examine (the father) or needed to in order to come to a clinical opinion.  As I understand the matter Dr McDonald had been confident in his clinical opinion prior to Dr Simpson giving evidence.  I would make it clear to the honourable court that my decision to refuse an adjournment application was not intended to be any sort of sanction imposed upon (the mother's) legal or medical advisers for failing to prepare the case, if indeed this is what happened.  I exercised my judgment on the basis of what was in the best interests of the child.  These proceedings had gone on for a considerable period of time. If Dr McDonald was to examine (the father) and report there would be a delay.  It could only be fair then to allow Dr Simpson, and if thought appropriate, Dr Horner to comment on Dr McDonald's updated views. (The father) and Dr Simpson would then have to give evidence again in order to deal with any points raised by Dr McDonald effectively rendering all proceedings to date of little, if any, use.  The evidence before the court formed an adequate basis for me to come to a reasoned decision.  Dr McDonald was free to give evidence at the discretion of (the mother's) legal advisers."      

"In consultation over lunchtime Dr McDonald stated that he was reluctant to give evidence given the judge's hostile attitude towards the respondent (the mother).  The judge had already twice in the morning indicated in open court to counsel that he was going to give some sort of contact to (the father). … Therefore, upon the refusal of the adjournment application and in light of the indications given by the judge it was decided that to lead any further evidence would not only be a waste of time but would cause stress and anxiety to our client (the mother).  It was clear that the judge had already  made his decision.  No evidence was tendered therefore on behalf of the respondent. … The judge made an interim order for three months of direct unsupervised contact twice per month at weekends for six hours.

Dr McDonald has indicated in his reports and at consultation that there should be no contact between (the father) and A until (the father) completes therapeutic work on his personality disorder."

"Accordingly I was obliged to make my decision on the basis of the evidence of (the father) and Dr Simpson. I did not take into account Dr Horner's evidence."

            At paragraph 15, inter alia, the judge avers;

"I was not given any basis why the contact should be limited.  There was clear evidence that (the father) loved his son and that his son loved him.  There is no evidence of risk to A.  In those terms I made an interim order to be reviewed after three months, that (the father) should have direct contact with A on a fortnightly basis."

The applicant's submissions

(i)        that judicial review in a case involving The Children (NI) Order 1995 should not be confined to Wednesbury principles where there a genuine concern of danger to the child.

            In my view the fundamental nature of judicial review does not change simply because it is heard in the context of an application brought in relation to the 1995 Order.  The remedy of judicial review is still concerned with reviewing the decision making process.  The purpose is to ensure that an individual has been given fair treatment by an authority to which he has been subjected.  It is still not concerned with reviewing the merits of the decision in respect of which the application is made, this being a matter for appeal.  The basic approach is that set out by Lord Roskill in Council of Civil Service Unions and Others v Minister for Civil Service [1984] 1 All ER 935 at 953J where Lord Roskill said;

(ii)       Mr Lavery submits that the applicant in this case has suffered a breach of her rights under Article 6 of the ECHR including in particular the right to a fair hearing.  He argues that she was so denied by virtue of the refusal to adjourn the case to enable Dr McDonald to update his report, the court's failure to take into account Dr McDonald's report and the judge's failure to insist on Dr McDonald being called to give evidence albeit he  was aware of his presence in the precincts of the court.    

(a)        The Impact of Article 4 of the 1995 Act

"Thus a court may request an authority to arrange for a suitably qualified person to report in writing to the court about the welfare of a child.  Where a court makes such a request and a report is presented the court may take account of its contents regardless of any rule of law or statutory provision if it is relevant to the issue before the court.  Thus once a court is commissioned it is admissible and the court may take it into account in its discretion if it so wishes and if the report is relevant."

"Another success of the Children Act has been the training, including and especially the training in related disciplines, which all judges receive.  By their special allocation to this work they acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence.  That is the judicial task.  The expert advises, but the court decides.  The judge decides on the evidence.  If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it.  There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."

Absent an Article 4 report, I consider that it would have been quite improper in this case for a judge to attempt to exercise a power to compel a witness to give evidence when his own counsel had decided not to call him on what the judge must have assumed was a rational analysis of the proceedings.  Mr Lavery urged on me that in cases under the Children Order, the courts should act irrespective of the decisions of counsel and that the welfare of a child should not be sacrificed to the vagaries of the decisions made by counsel or expert.  Notwithstanding the obvious duty on the court to ensure the paramountcy of the  welfare of children, I consider that a judge should be very slow to override the discretion of counsel in these matters absent some clear or unequivocal evidence that the interests of the child was being sacrificed.  It would always be open to a judge to invoke Article 4 of the 1995 Order to elicit further evidence if he felt that he was being wrongfully deprived of some matter of assistance or to suggest to counsel that they should reconsider the exercise of their discretion.  I find nothing in this case to suggest such a circumstance. As the judge indicated, he had clear evidence from Dr Simpson that the father was a changed man, that he was prepared to undergo any further treatment and that Dr Simpson felt that such treatment was not indicated.  In the event the judge received absolutely no evidence to the contrary at the hearing from Dr McDonald notwithstanding of course that the judge did have Dr McDonald's earlier reports in his possession.  I consider that it would have been a capricious and legally injustifiable exercise of the judge's discretion in these circumstances to have overridden the discretion of counsel not to adduce such evidence and to have instituted further enquiries which in themselves would have engendered further delay, uncertainty and expense.