Abuse


How to make family hearings fair

5 January 2015 by

P-154a3cb5-e8aa-4516-9a6b-c5204c8a4e34Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment 

Philippa Whipple QC of  1 COR appeared for the Lord Chancellor in this case.  She has played no part in the writing of this post.

This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children. 

The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.

So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – hereand our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.

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Birmingham’s Grooming Injunctions: what does the judgment say?

24 December 2014 by

Photo credit: guardian.co.uk

Photo credit: guardian.co.uk

Using the inherent jurisdiction against Child Sexual Exploitation: Birmingham City Council v Riaz & Ors15 December 2014, read judgment

As prefigured on this Blog here, Keehan J has handed down a public Judgment  explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.

The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.

Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.

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General Medical Council too late with child sex abuse complaint, rules High Court – Robert Kellar

26 September 2013 by

785px-Doctors_stethoscope_1Robert Kellar appeared for D in these proceedings

D, R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) – Read judgment

 

The High Court has strongly affirmed the prohibition against the pursuit of long delayed complaints against doctors in regulatory proceedings. The prohibition arose from the General Medical Council’s own procedural rules. It applied even where the allegations were of the most serious kind, including sexual misconduct, and could only be waived in exceptional circumstances and where the public interest demanded. The burden was upon the GMC to establish a sufficiently compelling public interest where allegations had already been thoroughly investigated by the competent authorities such as the police and social services.

Although the Court’s robust approach is to be welcomed, an opportunity to clarify the relevance of Article 6 ECHR in this context was not taken. The author suggests that Article 6 ECHR has an important part to play in protecting the rights of practitioners facing long delayed complaints.


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Crimes committed by victims of human trafficking – should they be prosecuted?

22 February 2012 by

R v N; R v LE [2012] EWCA Crim 189 – read judgment

This was the first occasion when the Court of Appeal has considered the problem of child trafficking for labour exploitation. It has not previously been subject to any close analysis following the coming into force in 2005 of the  European Convention on Action against Trafficking in Human Beings . In this particular case the Court concluded that the Crown Prosecution Service was entitled to prosecute foreign national youths with drug offences, despite the UK Border Agency accepting that they may have been smuggled or trafficked into the UK. But it sets out clear principles and authorities for the application of the protective mechanism of the Trafficking Convention for future prosecutions where there is evidence of human trafficking.
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After Winterbourne View: the untapped potential of Article 8 – Lucy Series

1 August 2011 by

Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching. 

Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities.  Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here).  In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.

The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy.  Take these finding from the report on Arden Vale, for instance:

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A very controversial kiss

8 July 2011 by

R (on the application of G) v The Governors of X School [2011] UKSC 30 – Read judgment 

On 4 October 2007 the parents of a 15 year old boy complained that he had been kissed by his 22 year old school sessional music teaching assistant (G).

After an (inconclusive) Police investigation, the school held a disciplinary hearing and dismissed G. They also referred his case to the Secretary of State with a view to him being barred from working with children. The Claimant appealed to the school governors. He also sought to be represented by his solicitor. In this he was successful on judicial review and at the Court of Appeal.

The question for the Supreme Court was, did Article 6 of the European Convention of Human Rights (the right to a fair trial) mean that G was entitled to be legally represented at the hearing before the school governors?

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Julian Assange must face rape charges in Sweden, rules court

24 February 2011 by

The judicial authority in Sweden -v- Julian Paul Assange – Read judgment

Julian Assange, the founder of the whistle-blowing website Wikileaks, must face charges of sexual assault and rape in Sweden, the chief magistrate Howard Riddle has ruled.

The case will almost certainly be appealed, so in reality there may not be a final decision for many months. Assange has a right of appeal on law or fact to the High Court under section 26 of the Extradition Act 2003. Assange has 7 days to appeal, but otherwise the extradition would usually take 10 days to execute.

Assange’s skeleton argument, that is a summary of his legal arguments during the hearing, can be found here. You can find my previous post on the subject here, including an explanation of the law surrounding his potential extradition. Carl Gardner, of the Head of Legal blog, also provides an excellent post here.

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Claims against the Catholic Church: When is there vicarious liability, when is there a duty of care and are the situations different?

16 April 2010 by

Duty of care and the Catholic Church - the MAGA caseWe posted last week on issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.

Case comment by Elizabeth-Anne Gumbel QC and Justin Levinson

(Barristers for the Claimant, MAGA)

MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)

This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.

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Feature | Are the courts taking child protection too far in abuse claims?

8 April 2010 by

Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.

It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).

The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.

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