The Child Order
Advisory Committee
Fourth Report
Produced by: Department of Health, Social Services and Public Safety,
Castle Buildings, Belfast BT4 3SQ
and
Northern Ireland Court Service,
Windsor House, 9-15 Bedford Street,
Belfast BT2 74T
Telephone: (028) 9052 2973 or (028) 9032 8594
Textphone: (028) 9052 7668
www.dhsspsni.gov.uk or www.courtsni.gov.uk
March 2004
Ref: 251/2003
The Children
Order Advisory
Committee
Fourth Report
January 2004
CONTENTS
Foreword
Chapter 1
The Committee, the Order and the Courts ........................................1
Chapter 2
Work of Sub-Committees during 2002/03
Best Practice .................................................................................................5
Child Contact Centres...................................................................................7
Contact and Domestic Violence ...................................................................9
Delay...........................................................................................................14
Inter-country Co-operation .........................................................................15
Mediation ....................................................................................................15
Multi-disciplinary Literature ......................................................................16
Secure Accommodation ..............................................................................17
Separate Representation for Children in Private Law Proceedings ...........21
Chapter 3
Work of Family Court Business Committees during 2002/03
Belfast .........................................................................................................23
Londonderry................................................................................................24
Craigavon....................................................................................................25
Chapter 4
Issues considered and Presentations made to the Committee
Court related Family Mediation Project .....................................................27
Child Care in Northern Ireland – The Wider Picture .................................30
Court Support Services ...............................................................................32
Multidisciplinary Developments ................................................................35
Chapter 5
Other Issues of Concern to the Committee
Social Work Training ..................................................................................37
Telephone Conferencing............................................................................39
Creating a Vision for Our Children – Response to Consultation...............40
Chapter 6
The Future...................................................................................................45
Appendix 1
Membership ................................................................................................47
Appendix 2
Statistical Model .........................................................................................49
FOREWORD
This fourth report of the Children Order Advisory Committee covers the
period from the 1 April 2002 to the 31 March 2003.
This period has seen the completion of three major pieces of work namely a
report on delay in the court process, a report on best practice in Children
Order cases and a report on separate representation for children in public and
private law cases. At the end of our period, the first two reports were in the
process of being approved for submission to the Lord Chancellor and the
Secretary of State for Northern Ireland and the third was being distributed as
a basis for further consideration before receiving the imprimatur of the
Committee.
The purpose of these major works in each instance is on the one hand to
promote discussion and consultation on each of the topics whilst on the other
to establish positive starting points for action. Best practice, delay and
representation are all key components of the remit of this Committee. Within
them there are few fixed concepts or inflexible rules and in the belief that
they require ongoing assessment and regular maintenance we have set out
our ideas on them. Their success or failure will be measured by the use to
which they are put and the ideas that they spawn.
Hand in glove with these three major pieces of work, the Committee has
undertaken a number of other equally worthy tasks. Our work is partly
conducted through a series of sub-committees which focus in detail on the
issues that have concerned us and which fall within our terms of reference.
A cursory glance through the contents of this report will reveal the breadth
of the topics that we have taken on board including domestic violence,
contact centres, mediation, secure accommodation, inter-country co-
operation, and multi disciplinary literature. Each of these topics is ongoing
and reports are received from a sub-committee on each occasion that the
Committee meets. Such was the level of work undertaken by the Committee
that it was decided to extend the meetings from quarterly events to bi-
monthly events. The agenda of the Committee is invariably a full one and on
each occasion the work of the individual sub-committees is scrutinised.
In addition to our work in the sub-committees the Family Court Business
Committees have been extremely busy functioning on an inter-disciplinary
basis. These committees perform excellent work which informs and lays the
foundation of the work carried on by the Committee itself.
COAC also considered a number of disparate issues this year emphasising
the multi-disciplinary approach which we consider so vital to the
implementation of our remit. We have taken a close interest in the experience
of CAFCASS in England and its possible application to Northern Ireland,
child care developments on a broad canvas throughout Northern Ireland, the
development of mediation, the training of social workers and the growing
recognition of information technology as an aid to our work e.g. the
introduction of telephone and video conferencing in the court process.
The engine of this Committee could not operate without the provision by the
Northern Ireland Court Service and the Department of Health, Social
Services and Public Safety of an industrious and conscientious secretariat to
the Committee during this period. I take this opportunity to publicly express
the gratitude of the Committee to that Secretariat.
The work of the Committee depends upon the input of the individual
members. Unfortunately we lost three distinguished servants to the
Committee namely Ms Mary Connolly, Mr Noel Rooney and Mr Hugh
Leslie. In each case their contribution was invaluable and losing such
distinguished servants is always a blow to the functioning of the Committee.
Happily I have been in a position to welcome a number of equally
distinguished successors namely Mr Ronnie Williamson and Mrs Eileen
Magee and while Mr Rooney’s replacement is yet to be appointed I have no
doubt that their contribution will remedy the loss we have suffered.
Our lengthy agenda, the growth in our sub-committees, and the increase in
the frequency of our meetings all bear witness to the nature of the challenge
that this Committee now confronts. I pay tribute to the unstinting work of the
members of this Committee whose sole focus is to ensure the paramount
interests of children who are weak and vulnerable. It is hoped that this report
will bear testament to the efforts that the Committee has made to ensure that
the interests of these children are successfully embraced.
The Honourable Mr Justice Gillen
Chairman of the Children Order Advisory Committee
The Children Order, The Courts and the
Committee
1
The Order
Under the Children (Northern Ireland) Order 1995 a range of court orders are
available in what are usually termed “public” or “private” law proceedings.
In public law, the local authority usually commences the proceedings, most
commonly in respect of child protection issues. Private law proceedings
involve individuals making arrangements for children.
The provisions of the Order allow some flexibility between private and
public law court applications. But the principles of all applications are the
same and are set out in Article 3 of the Order:
• The child’s welfare shall be the court’s paramount consideration
• Any delay in determining the question is likely to prejudice the welfare
of the child
• No order or orders should be made unless that would be better for the
child than making no order at all.
Court proceedings under the Children (Northern Ireland) Order 1995 are
known as “family proceedings”. That term also encompasses a range of
proceedings under other legislation including:
• The inherent jurisdiction of the High Court in relation to children
• The Matrimonial Causes (Northern Ireland) Order 1978
• The Domestic Proceedings (Northern Ireland) Order 1980
• The Adoption (Northern Ireland) Order 1987
• Part IV of the Matrimonial and Family Proceedings (Northern Ireland)
Order 1989
• Section 30 of the Human Fertilisation and Embryology Act 1990
• The Family Homes and Domestic Violence (Northern Ireland) Order
1998.
page 1
The Children Order, The Courts and the Committee
The main court orders available under the Children (Northern Ireland) Order
1995 under the broad headings of private and public law are set out below.
Orders concerning financial matters are not included.
1 PRIVATE LAW
• parental responsibility orders (Article 7)
• residence, contact, prohibited steps and specific issues (Article 8)
• family assistance orders (Article 16)
PUBLIC LAW
• care and supervision orders (Article 50)
• education supervision orders (Article 55)
• child assessment orders (Article 62)
• emergency protection and extension of emergency protection orders
(Article 63)
• secure accommodation orders (Article 44)
• parental contact with children in care (Article 53)
In any family proceedings in which a question arises with respect to the
welfare of any child, the court may make an Article 8 order. This may come
about either where a person entitled to do so makes an application, or where
the court gives that person leave, or the court itself considers that such an
order is necessary. There are four types of Article 8 orders. These may
determine with whom the child should
reside or is to have
contact, may
prohibit particular steps being taken concerning the child without the
consent of the court, or may order directions regarding
specific issues
concerning the child.
A family assistance order is available in exceptional cases and is the only
order where the consent of the parties is required. The order offers short-term
support and advice to a family, perhaps following a divorce or separation,
and usually where one or more Article 8 orders have also been made.
page 2
The Children Order, The Courts and the Committee
The Courts
The Children Order confers concurrent jurisdiction on the High Court,
1
county courts and magistrates’ courts. It provides for two specialist classes
of courts to hear any proceedings under the Order. At the county court level,
these are family care centres and at the magistrates’ court level they are
family proceedings courts.
Family Care Centres – these courts are presided over by county court judges.
Their function is to hear cases transferred to them and appeals from the
family proceedings court. There are three family care centres, situated in
Belfast, Londonderry and Craigavon.
Family Proceedings Courts – these courts are constituted as juvenile courts
presided over by a resident magistrate who sits with two lay panel members
of the juvenile court. There are seven family proceedings courts – one for
each county court division and they exercise jurisdiction throughout the
division in which they are situated.
The concurrent jurisdiction referred to above is regulated to ensure that
children’s cases are heard at the appropriate level of court. Subject to the
overriding principle that delay is likely to prejudice the welfare of the child,
Children Order cases may be transferred upwards to the higher courts if
specific criteria have been established. These can include complexity,
importance or gravity, or that proceedings regarding the same child are to be
heard in another court.
The general rule is that all public law proceedings are to be commenced in
the family proceedings court. This is also the case with free standing private
law cases i.e. applications where there are no other ongoing family
proceedings. Where there are ongoing proceedings such as divorce
proceedings pending in either the county court or High Court such
applications are required to be made to that court.
The Committee
In recognition of the importance of the Children Order to children and their
families, the Children Order Advisory Committee was established to:
• advise Ministers on the progress of Children Order cases through the
court system with a view to identifying special difficulties and reducing
avoidable delay: and
• to promote through Family Court Business Committees commonality of
administrative practice and procedure in family proceedings courts and
county courts and to advise on the impact on Children Order work of
other family initiatives.
page 3
The Children Order, The Courts and the Committee
The Advisory Committee is chaired by the Judge of the Family Division of
the High Court of Justice in Northern Ireland, and its membership reflects a
broad spectrum of disciplines and professions engaged in working with
1 children in both the courts and in other spheres. The membership of the
Committee during the currency of the report is set out at Appendix 1.
page 4
Work of Sub-Committes during 2002/03
2
SUB-COMMITTEE ON BEST PRACTICE
GUIDANCE
The Committee completed its task of laying out guidelines for best practice
in all Children Order cases and similar proceedings. The guide was
submitted to the Lord Chancellor’s Department1 and the Secretary of State
and has received the appropriate approval.
This Best Practice Guide is intended to promote efficiency, effectiveness and
economy in the management of such cases and to assist practitioners and
experts in the procedure to be adopted.
The Committee in drawing up these guidelines sought to represent the views
of professionals involved in the child care system and has striven to adopt an
inter-disciplinary approach in setting them out.
The Best Practice Guide touches upon a number of discrete subjects. These
include:
(a) Adjournments. Such applications may become a source of non-
purposeful delay in the court process. Accordingly guidance as to the
circumstances in which these will be granted has been set out.
(b) Appeals. With reference to the preparation and determination of
appeals.
(c) Case management in public and private law cases. This is the most
extensive of the guidelines provided and touches on all areas, issues
and matters relevant to case management structure.
(d) Counsel. The duties and obligations of counsel are addressed.
(e) Concurrent criminal/care proceedings. An attempt is made to provide a
structure to cases where applications under the Children (Northern
Ireland) Order 1995 are linked to a criminal investigation to help
expedite the hearing of both aspects.
(f) Disclosure. The guidelines provide assistance in determining those
documents which Trusts in particular should disclose. This should
avoid wasted time in protracted court determinations concerning such
documents.
1 Now the Department for Constitutional Affairs
page 5
Work of Sub-Committees during 2002/3
(g) Experts. Guidance is offered to the appointment of experts in public
and private law cases so as to streamline the appointment of such
witnesses in an orderly, efficient and expeditious manner.
2 (h)The Northern Ireland Guardian ad Litem Agency. The guidelines
address issues such as the powers and duties of the guardian in a
comprehensive manner.
(i) Interim care orders. A practice notice sets out how to deal with the
hearing of such applications in writing without the need for the parties
to attend where there is a consensual approach.
(j) The Hague Convention and Child Abduction. Guidance is afforded in
this difficult area of international child abduction.
(k) The Official Solicitor. A best practice note summarising the role of this
office is set out to assist those in the system to understand and use the
appropriate services of the Official Solicitor.
The guidelines must remain discretionary and flexible with the need to
consider each case on its merits. It must be emphasised that these guidelines
are not prescriptive rules but rather to be seen as valuable guidelines which
may require to be tailored to individual circumstances and particular cases.
They do not carry the weight of legal pronouncement but they do enjoy the
imprimatur of this wide-ranging Committee. It is hoped that these guidelines
will evolve and develop through time and that reviews will take place. With
the benefit of experience and hindsight further future input from those
involved in the child care system may serve to refine and extrapolate on our
current suggestions.
Accordingly our approach will require to be carefully monitored, surveyed
and revisited on a regular basis, possibly annually. We are also hopeful that
these guidelines will be incorporated into judicial and professional training
throughout the system.
The best practice is to be published in a loose-leaf form and distributed
widely to ensure maximum impact. These guidelines must be seen as living
instruments which will only remain relevant so long as they are adjusted to
meet changing circumstances. It is the earnest hope of the Children Order
Advisory Committee that they will constitute a blueprint which will be
extended, adjusted and strengthened over the coming years. To that end the
Committee will welcome a multi-disciplinary approach from all quarters and
the sub-committee responsible for drawing up the guidelines will act as a
receptacle for all matters drawn to its attention.
page 6
Work of Sub-Committees during 2002/3
SUB-COMMITTEE ON CHILD CONTACT
CENTRES
2
This sub-committee considered and reported on the concept of contact
centres. Such centres originated as far back as 1985 in England. In Northern
Ireland the idea is a relatively new one with the first such centre becoming
operational in November 1998 at the Knock Contact Centre in East Belfast.
Contact centres are independent, autonomous, unique organisations, albeit
drawn together by an association membership which ensures national
standards consistent with a Code of Practice and appropriate policies and
procedures in place for ensuring the health and safety of service users and
staff. Their purpose is to provide a neutral meeting place where children of
separated families can enjoy contact with one or both parents and sometimes
other family members in a safe comfortable environment where there is no
viable alternative.
The services that are provided commonly involve:
- low
vigilance
- volunteers and staff keeping a watchful eye
- conversations not monitored
- several families in a room at any one time
- no detailed reports provided to any of the parties involved albeit dates
and attendance times will be disclosed.
In Northern Ireland there are four established centres namely at Mid Ulster
Contact Centre in Cookstown, Knock Contact Centre in East Belfast, Central
Belfast Contact Centre in the City Centre and Cloona Contact Centre in West
Belfast. Interest groups have already been identified in Ballymena, Armagh
and Derry. In England supervised contact can also be provided by a small
number of specialist centres where there are historical issues or concerns.
Although operational centres in Northern Ireland currently facilitate
supported contact in handovers, no provision for contact on a supervised
basis is in existence with the exception of those referred to Social Services
where concerns for the child’s welfare or safety have been identified.
Health and Social Services Trusts have provided funding to some of the
centres now operating in their areas. However statutory resources are
primarily directed towards public law cases. Increasing levels of contact
have led to North and West Belfast Trust establishing an “in-house” service
to ensure children in their care receive a high quality coordinated contact
service. Foyle Trust in the Derry area is also developing such a service.
page 7
Work of Sub-Committees during 2002/3
Referrals to the operational centres can be made by a range of individuals
and organisations including courts, Social Services, solicitors, self referrals
and others such as GPs or health visitors.
2 To date the courts have embraced contact centres and positively
acknowledge the need they fulfil in contemporary society. A protocol for
referral of families by judges and magistrates has been drafted, identifying
the services offered by centres, giving guidance on suitability of referrals and
setting out the referral process together with matters relating to the
practicalities of contact sessions.
Contact centres are funded in a number of ways eg statutory bodies,
charitable trusts and church organisations. The levels of funding provided
are discretionary with available finance dependant upon the committee’s
resolve to engage in fundraising activities. The current Northern Ireland
funding situation mirrors that of centres in the UK in their developing phase.
Over the last number of years ad-hoc funding by the Lord Chancellor’s
Department (whose policy remit then included child contact centres) was
made available to mainland centres if they wished to avail of it. The funds
are allocated to the NACCC who distribute the money to individual contact
centres following applications for and agreement of financial support.
Existing centres in Northern Ireland have progressed beyond the
developmental phase and it therefore is considered appropriate to provide
mainstream funding similar to the UK system.
This sub-committee therefore saw potential for future development along the
following lines:
(a) Alongside membership of the national association, there should be the
establishment of a formal regional federation or network.
(b) Efforts should be made to support interested parties throughout the
province to establish further centres. A formal regional federation could
play a pivotal role in such expansion.
(c) There should be the development of specialist centre staff by
professionals offering supervised facilities where necessary to assist
with the more complex cases. Alongside this the availability of
therapeutic services for parents and children could address
issues/concerns on site.
Having considered the matter in some detail therefore, this sub-committee of
COAC has made the following proposals:
1. A regional federation should be established to ensure cohesive formal
structures for mutual support and development within which the
independent autonomous nature of centres could be maintained.
page 8
Work of Sub-Committees during 2002/3
2. Mainstream funding should be available to those centres which require
it reflecting the diverse needs of services offered by individual centres.
Public monies could be distributed by the local Trust where the centres
are located or directly from the Department of Health, Social Services
and Public Safety or via a grant to the regional federation. The report
envisaged annual reports and audits from each centre.
2
3. A protocol for the operation of these centres was to be circulated and
introduced as a matter of good practice in Northern Ireland.
The Committee concluded by recommending that the Department of Health,
Social Services and Public Safety should convene a meeting of all contact
centres in Northern Ireland to consider the establishment of a regional forum
and the provision of mainstream funding.
This report has been distributed to the DHSSPS and the Northern Ireland
Court Service and the matter is now under consideration.
SUB-COMMITTEE ON CONTACT AND
DOMESTIC VIOLENCE
Developments
The sub-committee has been reformed with a remit extending beyond that of
the original sub-committee, which concentrated on 2
Re L and 3
Guidelines
issued by The Family Law Act Advisory Board’s Children Act Sub-
Committee in 2000. Membership of the new sub-committee includes
lawyers, a child and adolescent psychiatrist, a forensic psychiatrist, PSNI,
DHSSPS, Barnardo’s and Women’s Aid representatives. Guests from other
disciplines such as Children’s Law Centre, Office of Law Reform and
Probation also participate. This accords with the multi-disciplinary approach
of professionals working together to try to achieve a better outcome for
children.
Following the restructure, the Chair of the sub-committee has become a
member of the Regional Forum on Domestic Violence. This affords an
opportunity to exchange information, and ensure that the COAC is made
aware of regional and multi-disciplinary initiatives to help tackle domestic
violence concerns.
The issues which the sub-committee initially charged itself to explore
included: -
• Effectiveness of
Re L Hearings in Northern Ireland
• Understanding the potential harm which domestic violence can cause to
a child, including relevant research
2Re L (Contact : Domestic Violence) and others (2000) 2 FLR 334; see also pages 30-31
page 9
COAC Third Report.
3See page 30 COAC Third Report
Work of Sub-Committees during 2002/3
• The review of The Family Homes and Domestic Violence (NI) Order
1998
2 • PSNI strategy on domestic violence, including role of domestic violence
officers
• Proposed offence of domestic abuse
• Review of assessment and treatment programmes, both for the abuser
and the victim (including the child).
An audit of child contact centres was carried out by a 4separate sub-
committee and is reported on separately in this report. Consideration is to be
given as to the appropriateness of amalgamating both sub-committees.
The sub-committee has met on three occasions and has discussed all of the
issues set out above. A summary of its conclusions to date are as follows: -
Effectiveness of Re L hearings
Strong views were expressed that Re L hearings are not always taking place
in cases involving domestic violence, or do not take place at an early enough
stage of proceedings. Concerns were also expressed about lack of written
judgements in such cases. Also, control of confidentiality in respect of
parties statements. In one case an alleged perpetrator of violence – who was
the parent and a Respondent in the proceedings, received (from his Solicitor)
a copy of the Applicant’s allegations. He then copied the statement,
distributed copies to his friends, and both he and his friends set about to
intimidate the former partner.
Comments were also made about the drafting of parties Statements of
Evidence, and that these should reflect as far as possible the instruction of
the party rather than a refined document prepared by the party’s legal
representative.
The sub-committee welcomed an opportunity of addressing these issues in
an appropriate forum with members of the judiciary, magistrates,
representatives from the Family Bar and Family Law Solicitors Association.
Understanding potential harm caused to children by
domestic violence
This issue was discussed at all meetings. The collation and distribution of
research and relevant publications to all those involved in presenting and
determining domestic violence cases is extremely important. Relevant and
4See Page 25 COAC Third Report
page 10
Work of Sub-Committees during 2002/3
up to date citations in both social worker and Guardian ad Litem reports are
to be encouraged.
2
Use could be made of the COAC literature sub-committee to circulate
relevant reading material. This perhaps is a matter for the Law Society, Bar
Council and Judicial Studies Board to consider. The sub-committee is well
served, particularly with the assistance of its two specialist psychiatrist
members, to promote relevant research.
Review of The Family Homes and Domestic Violence
(NI) Order 1998
This major legislative enactment was intended to streamline and consolidate
the law on domestic violence and occupation of the family home. It replaced
inter alia personal protection and exclusion orders in the Domestic
Proceedings (NI) Order 1980 and replaced them with the following: -
Non-Molestation Orders
Occupation Orders
Exclusion requirements attached to Interim Care or Emergency
Protection Orders
The main provisions of the 1998 Order came into operation on 29 March
1999, but Articles 35 & 36 (provision to allow third parties to act on behalf
of victims of domestic violence in certain cases) have not yet commenced.
The Office of Law Reform has conducted a 5review of the effectiveness of
this piece of legislation and its report is available in October 2003. Many of
its recommendations will require further consultation through groups such as
The Regional Forum on Domestic Violence and this sub-committee.
PSNI Strategy on domestic violence
The sub-committee is grateful to have, as a member, a representative from
PSNI who is involved in inter-departmental initiatives to tackle domestic
violence. The DHSSPS together with the Northern Ireland Office are
updating a departmental publication: ‘Tackling Domestic Violence: A Policy
for Northern Ireland’ (1995). The Report, entitled 6
‘Tackling Violence at
Home’ is available in October 2003 and will be considered in detail by the
sub-committee.
Domestic violence is not a specific criminal offence. Instead, it is charged
under a range of offences. Some have suggested that creating a specific
offence of domestic violence would improve protection afforded to victims
by the criminal justice system. Others have suggested that the key is for the
courts to treat domestic violence as seriously as other cases of violent crime
and for sentencing practice to reflect this.
5Review of the Family Homes and Domestic Violence (NI) Order 1998, www.olrni.gov.uk
6
page 11
www.dhsspsni.gov.uk
Work of Sub-Committees during 2002/3
This issue alone requires further debate and consultation. The task of the
sub-committee is to consider how such a change to the law or sentencing
could reduce the harm caused to children and achieve better outcomes for
2 them. The sub-committee is considering the ongoing proposals to change the
supportive role of PSNI domestic violence officers to an investigative one.
PSNI welcome the debate on The Family Homes and Domestic Violence
(NI) Order 1998, and the role of police officers both in the service of court
orders and in the prosecution of any breach. Disclosure of the applicant’s
statements to the police in non-molestation and exclusion applications,
would assist with the police investigation. Such disclosure is not automatic
and both court and party confidentiality must be considered.
Assessment Tools and Treatment Programme
Assessment – the sub-committee has considered the 7Department of Health’s
Framework for the Assessment of Children in Need and their Families
(March 2000) and the
‘Multi Disciplinary Assessment Framework:
Assessing Needs and Risks in Work with Children & Families’ (May
2000) produced by the Western Area Child Protection Committee, WHSSB.
The latter attempted to introduce a Northern Ireland assessment tool akin to
the mainland framework, but regionalised to take into account local needs,
structure and resources. The sub-committee is aware that DHSSPS is
involved in the development of an assessment framework for Northern
Ireland.
The sub-committee has been appraised of numerous initiatives by
organisations such as Women’s Aid and Barnardo’s to develop risk
assessment models relating specifically to domestic violence. One such pilot
scheme is currently being developed by Barnardo’s in conjunction with the
Southern Health and Social Services Board; such quality initiatives are
welcomed by the sub-committee.
Treatment – the sub-committee has discussed the lack of treatment
programmes available for alleged perpetrators. Certain schemes are operated
by Probation, such as Men Overcoming Domestic Violence, but places are
limited and the programmes may only operate at certain times of the year.
Effective and available programmes would help to treat and thus reduce the
risk posed to children who live in homes where domestic violence is
prevalent.
Developments in respect of assessment tools and treatment programmes will
be kept under review by the sub-committee as such important issues clearly
have direct impact on the operation of The Children (NI) Order 1995.
7www.dhsspsni.gov.uk
page 12
Work of Sub-Committees during 2002/3
Other
Many other important issues have been raised and discussed by the sub-
2
committee to include: -
- Human rights implications
- Representation for children – private law proceedings
- Area Child Protection Committee initiatives on domestic violence
- Court protocol for Article 57A applications
- Collation and recording of evidence of domestic violence incidents
- Role of Court Welfare Officers in domestic violence cases
- Role of Child and Adolescent Mental Health Services (CAMHS)
The Children Order Advisory Committee
Best Practice Guidance (2003)
Chapter 3, 3.1.15 ‘Case Management in Private and Public Law Cases’ gives
specific guidance to practitioners in cases where there are allegations of
domestic violence, to include: -
1. Parties are to prepare a schedule of allegations of violence and abuse
(including any reference to alleged damage to the children in light of
same) on which the Court is to make a finding.
2. Special hearings to deal with issues of domestic violence to be a priority
before other determinations are made.
3. In Article 8 contact cases the Guidelines issued by the Family Law Act
Advisory Board’s Children Act Sub-Committee should be regarded as
good practice in this jurisdiction.
4. Consideration will be given to discovery of photographic, recorded and
medical evidence together with PSNI statements and non-molestation
applications.
5. Use to be made of 8Article 12A – Residence and Contact Orders and
domestic violence; 9Articles 57A & 63A – power to include an Exclusion
Requirement with an Interim Care Order or Emergency Protection
Order.
8Introduced by Article 28 of The Family Homes and Domestic Violence (NI) Order 1998.
9Introduced by Article 29(2) and (4) respectively of said 1998 Order.
page 13
Work of Sub-Committees during 2002/3
Conclusion
Cases of domestic violence coming before the Family Courts both under The
2 Family Homes and Domestic Violence (NI) Order 1998 and The Children
(NI) Order 1995 – sadly are increasing. This may be because incidents are
increasing or because the public are becoming more willing to report such
matters to the police and Social Services. It clearly is a demanding and
challenging issue for COAC to continue to review and monitor.
SUB-COMMITTEE ON DELAY IN THE COURTS
The sub-committee completed its work on the delay in the courts and the
report has now been submitted to the Secretary of State and the Lord
Chancellor’s Department.10
The study constitutes the investigation and recommendations of the
Committee on the subject of delay in the court process in cases heard
pursuant to the Children (Northern Ireland) Order 1995.
This work constituted a consultation paper to promote discussion on and
provoke reaction to the topic of delay leading to a more detailed
consideration of the issues involved. Underlying the whole process is the
recognition in the Children Order itself that delay is likely to prejudice the
welfare of the child. We are conscious of the need to address the increasing
time now spent on disposing of cases throughout the court system whilst at
the same time tempering this with a recognition that avoidance of delay must
not be an overriding principle. The courts must be conscious of those
exceptions when a child’s welfare will be best served by delaying the
determination of the question before the court. In this context it is
increasingly being recognised that an effective inter-disciplinary support
structure is required to move hand in hand with the development of the
family justice system. Whilst the lack of effective inter-agency
communication and co-operation can act as a factor precipitating delay, it
can at the same time, by virtue of a more sophisticated approach, require
more detailed analysis of issues that were hitherto sadly neglected. The
increasing need to make findings on issues of domestic violence, to consider
the need for appropriate expert intervention, to review the rights of
representation of each child and to listen to the voice of the child about some
of the issues that require careful consideration are all examples of issues that
must not be sacrificed on the altar of expediency and a drive to exclude
delay.
Nonetheless the report recognises that there are a number of sources of delay
within the court process and this report attempts to identify them. We have
deliberately avoided a numbers-driven exercise recognising as we do that the
number of complaints in any instance may reflect neither the validity nor the
10Now the Department for Constitutional Affairs
page 14
Work of Sub-Committees during 2002/3
strength of the complaint. A recurring complaint of delay may be based on a
popular misconception and an isolated criticism may reveal a profound
inadequacy in the system.
2
We recognise that no one set of rules or procedures can hope to deal with the
question of delay once and for all. Like the poor, delay will always be with
us. It is hoped that this exercise will however provoke appropriate debate on
the topics raised and lead to a more informed and multi-disciplinary
approach to the topic embracing further research and more detailed analysis.
If this paper serves to trigger that process, then we will consider it to have
achieved its objective.
INTER-COUNTRY CO-OPERATION
A sub-committee was asked to consider the operation of the Children Order
in respect of parties changing jurisdiction from Northern Ireland to the
Republic of Ireland and vice versa.
The sub-committee was asked to examine whether or not it would be
appropriate to have a bilateral agreement between one jurisdiction and
another rather than involving the full apparatus of the Hague Convention.
It was accepted that even in border areas there was very little difficulty and
that there was co-operation between the respective Social Services
Departments.
It was also felt that a bilateral agreement would not be as effective as the
Hague Convention (to which both the United Kingdom and Republic of
Ireland are signatories) as it was unlikely that any jurisdiction would return
a child without some aspect of a welfare principle.
It was also noted that giving children a greater say in where they may wish
to remain could potentially undermine the aims of the Convention.
SUB-COMMITTEE ON MEDIATION
This sub-committee was established by the Children Order Advisory
Committee to examine and make recommendations as to the place of
mediation as an aid to the resolution of cases relating to children in family
courts.
The sub-committee has met on a number of occasions during the currency of
this report. In May 2002 members the Advisory Committee as to the
proposed pilot schemes for Belfast and Ballymena Family Proceedings
Courts. Full details of the schemes are set out in
Chapter 4.
The mediation service it provides has been available through Belfast Family
page 15
Work of Sub-Committees during 2002/3
Proceedings Court, where it was commenced in December 2002, and in
Ballymena Family Proceedings Court since April 2003. The number of
referrals has been limited to two cases per court per month from each venue.
2 The duration of the project is estimated at 18 months and is to be evaluated
by the Office of Law Reform for Northern Ireland.
Other issues explored by the sub-committee during the year included the role
that social workers, effective timetabling of cases, accurate identification of
issues and the availability of court welfare officers on site could play in
resolving family disputes.
Members also carried out research in the mediation schemes available in
other “local” jurisdictions. This included a fact-finding visit to the Family
Mediation Service (FMS) and Court Service in the Republic of Ireland. This
service which is wholly funded by the Department of Social, Community
and Family Affairs is geared towards pre-court intervention and accounts for
some 95% of their work. The remaining 5% of cases are referred from the
District and Circuit Courts.
In August 2002, the sub-committee noted with regret the untimely death of
one of its co-opted members, Mr CP McRandal Resident Magistrate who
was a knowledgeable exponent of mediation in family disputes.
FAMILY LAW LITERATURE SUB-COMMITTEE
The inaugural meeting of the Family Law Literature Sub-Committee took
place on 31 March 2003.
The sub-committee is chaired by the Honourable Mr Justice McLaughlin and
membership includes a representative of the Family Bar Association, a
representative of the Directors of Health and Social Services Trusts, a
medical doctor specialising in child care and a reader in social work studies
at Queen’s University Belfast.
The sub-committee’s terms of reference are:
“To survey periodical academic literature and other relevant publications to
ensure that those involved in the family justice system are kept informed of
research and development in this field.”
The sub-committee agreed to screen the literature of its respective
disciplines and thereafter have circulated relevant items to the other
disciplines represented on the Committee. The first such list is to be
compiled for circulation in June 2003. The sub-committee intends to meet
two or three times annually.
The legal literature to be considered will include the Family Law Reports,
page 16
Work of Sub-Committees during 2002/3
Family Law, International Family Law, Child and Family Law Quarterly and
Child and Family Law Update. Other literature will include Adoption &
Fostering, Child Care Practice, Child & Family Social Work, the British
2
Journal of Social Work, Child Abuse & Neglect (USA Publication) and its
British equivalent Child Abuse Review and also Child Maltreatment.
Thereafter a list of articles with brief summaries would be produced together
with references to any other relevant books. This is then to be disseminated
via email to a list of contacts within the Health and Social Services Trusts, the
Family Bar Association, the Law Society, the Children’s Law Centre and the
NI Guardian ad Litem Agency.
It is intended, in the near future, to have a portal in the Court Service website
onto which these articles and summaries could be posted. This would then
replace the need for email distribution and all those in the various disciplines
could access the website periodically.
SECURE ACCOMMODATION SUB-COMMITTEE
Secure accommodation is defined in The Children (NI) Order 1995 as
accommodation provided for the purpose of restricting liberty. Children
should only be placed in secure accommodation in exceptional circumstances
and the necessity to restrict a child’s liberty must be balanced with human
rights considerations. Issues relating to secure accommodation are frequently
brought to the attention of the Children Order Advisory Committee and have
been mentioned in earlier reports.
The availability of places has remained an issue of some concern since the
commencement of The Children (NI) Order 1995 on 4 November 1996.
Initially 8 secure placements were available within Shamrock House, The
Lakewood Centre, Bangor. On 24 January 2001 Lakewood opened a second
secure unit, Linden House providing an additional 7 secure placements, total
15 places.
On 3 October 2002 Mr Leslie Frew, DHSSPS delivered a presentation to the
Committee entitled
‘Child Care: The Wider Picture’ (COAC Paper
8/2002). This highlighted the fact that 28% of the total population in Northern
Ireland are children, which is a higher proportion than any other region of the
United Kingdom. At that time 2500 children in Northern Ireland were in
public care – ‘looked after’ and 12% of ‘looked after’ children were in
residential care.
The lack of investment in residential care for children has lead in recent years
to a marked decline in the number of residential childcare places.
The projected provision for ‘looked after children’ in residential care for
page 17
Work of Sub-Committees during 2002/3
March 2005 suggests that: -
• 3% will be in secure accommodation
2 • 15% will be in intensive support
• 28% will be in specialist placements
• 54% will be in differentiated residential care.
The Department made a bid for £6 million from the Children’s Fund to
replace the 2 existing Secure Units, with a new facility offering 16 places.
The places available to be commensurate with the Department’s desire for
Boards and Trusts to commission and develop other specialist residential
care services to address the complex needs of some children and thus reduce
the necessity for secure accommodation, which is always to be used as a last
resort.
Alongside this proposal, the Department announced the opening of
Copeland House, Knockbracken Site, Belfast – which when fully operational
will augment by 10 places the 6 previously provided at the Young People’s
Centre. Consideration is also being given to the provision of 2 secure mental
health beds which would be accessed via the Mental Health (NI) Order 1986.
Currently, Child and Adolescent Mental Health Services are being reviewed
as part of the Bamford Review of Mental Health Services in Northern
Ireland. Developments in this area will therefore be part of a wider Review
of mental health issues.
On 21 March 2003 Ms Marion Reynolds, SSI Inspector presented the
Committee with a preview of the departmental publication
‘Secure Care’,
published on 12 June 2002. This report highlighted the findings of a
governmental inspection of secure accommodation provision in Northern
Ireland. The objectives of the inspection were: -
- to evaluate the planning, decision making and placement arrangements
for children prior to application for secure accommodation;
- to assess how Care Plans developed to support such applications have
been implemented following admission to and discharge from secure
accommodation;
- to assess the quality of practice and determine the outcome for children;
- to make recommendations to assist with the development of effective
planning;
- to consider commissioning arrangements;
- to consider the operation of the independent review process;
page 18
Work of Sub-Committees during 2002/3
- to consider arrangements to safeguard and promote the well-being of
those for whom no secure placement was available;
2
- to consider how the rights of children are promoted by the existing
legislative and policy context;
- to evaluate the educational environmental and educational provisions;
- to make recommendations to enable a review and development of
policy;
The report suggested a number of approaches to try to reduce the need for
secure accommodation, to include:
- ready access to support and other services such as psychology and
psychiatry;
- adequate number of residential care places;
- development of a range of specialist and differentiated residential
facilities.
The report also commented on the need to develop ‘fast tracking’ of
assessments for children in secure accommodation, to include access to
appropriate psychiatric and clinical psychology services.
The report is most comprehensive and informative, and offers much to
consider in terms of secure accommodation applications.
The Children Order Advisory Committee has received many concerns
regarding the safe transportation of children placed in secure
accommodation to and from court. This issue may be alleviated if there is a
live link facility for court appearances. This would require legislative
change. A COAC Secure Accommodation Sub Group has now been set up to
explore these issues, and will report on its findings in the next report.
Finally, the COAC Best Practice Guidance at 3.1.28 Directions Hearings
gives additional guidance when Trusts are presenting Article 44 applications
to the court. This guidance is reproduced below.
3.1.28
COAC Best Practice Guidance - Secure Accommodation
Applications for Secure Accommodation Orders are arguably the most
serious under The Children (Northern Ireland) Order 1995. These
applications are usually dealt with in the Family Proceedings Court and
are often extremely complicated.
page 19
Work of Sub-Committees during 2002/3
In addition to the guidance given in section 3.1 Directions Hearing and
Appendix B Directions Hearing Checklist the following should be
considered in all secure accommodation applications: -
2 1. No application for a Secure Accommodation Order can be made
unless there is a place available for the child in a secure unit -Re AK,
High Court (NI), Family Division 28 May 1999.
2. Three working days notice of any such application should wherever
possible be given to the Court and parties.
3. Upon receipt of an Article 44 Application the Court Office will
forthwith notify the Guardian ad Litem Agency of the application so
that a solicitor for the child can immediately be appointed and hence
avoid any difficulties under Article 44(7). The Guardian ad Litem
Agency should endeavour to appoint a Guardian as soon as possible
in light of the serious nature of this application.
4. The Court will serve the child via his/her legal representative or
Guardian ad Litem or the manager of the Secure Accommodation
Unit where the child is placed. It is not good practice to serve
Pleadings or Court Reports directly upon the child.
5. The Applicant Trust shall assist the Court with service of the
Application upon the parents, if directed by the Court.
6. The attendance of the child at each Court appearance must be given
early consideration, and certainly prior to the first Court Hearing.
See North and West Belfast H&SS Trust v DH 2001 NUB 351 and RE
D Unreported NI Family Division June 2002.
7. Arrangements for the child's transportation may need to be
considered.
8. Hearings within the Rathgael site should be exceptional and should
only be directed after formal application and determination by the
Court.
9. In the Applicant Trust's Statement of Evidence (Rule 18 Magistrates
Courts (Children (NI) Order 1995) Rules (NI) 1996/Rule 4.18 The
Family Proceedings Rules (NI) 1996) a list of incidents should be set
out and reasons given why the Trust feels Threshold Criteria are met
(although this may be a matter of further judicial consideration – see
Re: M(Secure Accommodation Order) [1995] 1 FLR 418: Hoffmann
LJ at 119A-D and 427).
10. The Court will require the Applicant Trust to present evidence to
page 20
Work of Sub-Committees during 2002/3
demonstrate that secure accommodation is being sought as a last
resort -paragraph 15.5 Volume 4 Guidance and Regulations.
2
11. The Court will also require the Applicant Trust to provide information
of the child's proposed timetable of activities, on a week by week basis
for each week it is proposed to keep the child in secure
accommodation. This will include plans inter alia for education;
therapeutic services (if any); contact and recreation.
12. Finally, the Court will require the Applicant Trust to provide
information to the Court of the proposed exit strategy.
SEPARATE REPRESENTATION OF CHILDREN
IN PRIVATE LAW PROCEEDINGS
This sub-committee was established by the Children Order Advisory
Committee to review the current provision for separate representation of
children in private law proceedings and to make recommendations for the
development of that service. In its report submitted in December 2002 the
sub-committee fulfilled its remit by outlining its preferred representational
model.
It appeared to the committee indisputable that the current system should be
updated. The form and substance of any change will be shaped by the views
of all the constituencies encompassed within the family justice system. In
addition to describing its vision for the provision of separate representation
the committee also made other short term recommendations. The purpose of
these proposals was twofold:
• To expand the range of statistical information gathered in respect of
private law proceedings to allow accurate forecasting as to demand for
separate representation and effective costs analysis.
• Pending more substantive change to suggest improvements to the
current system to ensure consistency of practice and interpretation.
The report concludes that the current provision for separate representation of
children in private law proceedings is inadequate in several material
respects. These inadequacies are highlighted in the review detailed in this
paper but can be summarised as follows:
1. There is no mechanism for the provision of separate representation for a
child in private law proceedings in the magistrates’ courts. This appears
to the committee to undermine the benefits of the concurrent jurisdiction
implemented by the Children (Northern Ireland) Order 1995.
2. The preparation of welfare reports for courts in private law proceedings
page 21
Work of Sub-Committees during 2002/3
is not always a priority task for social workers with heavy child
protection caseloads.
2 3. The grant of separate representation to children is not consistently
applied by the courts.
4. The vast majority of children who come before the courts are the silent
subjects of divorce proceedings initiated by their parents. While the
committee acknowledges and endorses the proposition that parents are
uniquely placed to promote the interests of their children, it was
concerned that this places a huge demand on parents at a time of family
trauma and upheaval.
The committee was concerned about the paucity of information about the
number of cases in which separate representation is an issue and suggested
that this be addressed by gathering a wider range of statistical information.
This should include a survey of the number of welfare reports commissioned
by the courts from social services. The committee also recommended that
consideration be given to the extension of the dedicated court social worker
schemes to all family proceedings courts.
The Children (Northern Ireland) Order 1995 and its supporting rules and
regulations should be amended to clarify the circumstances in which a child
should be afforded separate legal representation in private law proceedings.
Such representation should not be a matter of entitlement as there are many
cases in which the child’s interests do not require the safeguard of separate
representation.
The principal recommendation in the report was the proposal that the Office
of Family Advocate be established in Northern Ireland. The Family
Advocate would be a lawyer empowered to provide representation to those
children who required the same in private law proceedings. The remit of the
Family Advocate would include all private law proceedings under the
Children Order, divorce and to appear on behalf of children when requested
to do so by the court. The Family Advocate would co-ordinate the provision
of separate representation of children in private law proceedings in all tiers
of court within the concurrent jurisdiction.
The report has now been circulated to the various constituent parts of the
family justice system and has already provoked a lively debate on the issue
of separate representation for children. Such a debate is timely. It is
incumbent on practitioners from all the disciplines in the family justice
system to protect the most vulnerable members of our society while serving
their needs as individuals.
page 22
The Work of the Family Court Business
Committees
3
BELFAST FAMILY COURT BUSINESS
COMMITTEE
The Belfast Committee has met on four occasions between April 2002 and
March 2003. The attendance at the Committee meetings has increased during
the year and there is regularly a 70% attendance. This includes
representatives from the Belfast Health and Social Services Trusts, the
Northern Ireland Youth and Family Courts Association, a Solicitor, and a
representative from the Central Services Agency. The member representing
the Family Bar Association tendered her resignation during the year and the
Committee is awaiting the appointment of her successor.
In February 2003, an additional resident magistrate joined the Committee
following his re-location to the Belfast area.
The Committee discussed a variety of issues during the year. One of the main
concerns raised was the length of time taken by Health and Social Services
Trusts to prepare reports for the court. It is anticipated that the Trusts will
shortly submit a number of proposals to the Committee to improve this
situation.
The continuing problems associated with providing secure accommodation
for children have been raised on a number of occasions. The provision of
video link facilities has also been discussed in this regard and the Committee
urged that action be taken to alleviate the problems.
In January 2003 a pilot scheme for the use of the mediation services
commenced. The Committee was disappointed at the small number of cases
that could be referred to the service providers, Relate NI for logistical
reasons. At the beginning the uptake was slow, but since then there have been
a number of referrals although there have been few resolutions.
The withdrawal of the police from the courts was also the subject of
discussion together with issues concerning the security of parties to
proceedings, members of the legal profession and social workers.
The Committee wishes to acknowledge the support and contribution of its
members during the year.
page 23
The Work of the Family Court Business Committees
LONDONDERRY FAMILY COURT BUSINESS
COMMITTEE
3 Since March 2002 the Londonderry Family Court Business Committee has
concentrated its efforts on attempting to avoid delay within the court process.
To this end, a number of case management initiatives have been introduced.
In the Family Care Centre these included the designation of two Monday
afternoons per month for Directions Hearings together with cases which are
estimated to last no longer than two hours.
It is an imperative to effective case management that a hearing date be given
at the earliest opportunity and ideally at the first Directions Hearing. While
those engaged in the court process are aware of the purpose of a Directions
Hearing, too often in practice that was not achieved. Parties were frequently
not prepared for such hearings and left the case directions in the hands of the
Trusts’ legal representatives. Alternatively, parties would simply react to the
directions sought by those legal representatives rather than having a clear
idea of what their case required.
In order to improve the standard of case management the Family Court
Business Committee decided to hold a local inter-disciplinary seminar. This
took place in October 2002 and social workers from both the Foyle and
Sperrin & Lakeland Trusts were in attendance. Members of the Northern
Ireland Guardian ad Litem Agency, the Northern Ireland Youth and Family
Court Association, family lawyers and the judiciary also participated. The
topics addressed included directions, secure accommodation applications
and expert witnesses.
The Committee was pleased to note a number of positive effects resulting
from the seminar. These included more specific directions being sought,
more realistic estimates and subsequent allocation of court time to cases and
a better understanding of the court’s expectations. It was also felt that the
seminar had given those involved in the family justice system a better
appreciation of the constraints and problems encountered by others.
In a similar vein a presentation entitled “New Beginnings a Whole Systems
Approach” was made at the meeting in February 2003. This was introduced
by the Chairman of Foyle Child Protection Panel and delivered by Ms
Deirdre Mahon. The presentation outlined how the Trust intended to utilise
their resources together with a discussion on the resource model piloted by
Cambridge Social Services.
The Committee has decided to adopt a similar inter-disciplinary approach to
improve the presentation of cases to the court. To this end it was to hold a
“scripted” mock family trial under the auspices of the local resident
magistrate in May 2003. Social workers, Guardians ad Litem and lecturers
page 24
The Work of the Family Court Business Committees
from the Social Work Departments of Queen’s University Belfast and the
University of Ulster were to be invited, as were doctors and health visitors.
With the consent of the Lord Chief Justice it was also intended to video the
3
“proceedings”.
A listening and learning event on child protection was scheduled to be held
at the Magee Campus of the University of Ulster in June and organised by
the four Trusts operating in the Division. The Bar Council and Guardian ad
Litem Agency, with the support of the Committee were also to hold an event
on child neglect in Altnagelvin Hospital in October.
The Committee is also keen to encourage the establishment of contact
centres for both Londonderry and Fermanagh. It believes that such facilities
would greatly enhance the lives of children who are caught up in the
acrimonious separation of their parents.
To this end the Chairperson has attended as a member of a Steering Group
with representatives from Foyle and Sperrin & Lakeland Trusts and the
National Children’s Homes who are currently putting together a proposal
including costings for such facilities.
The Committee wishes to acknowledge the hard work, enthusiasm and spirit
of co-operation of its members in 2002/03.
CRAIGAVON FAMILY COURT BUSINESS
COMMITTEE
The Committee met 4 times during the period from 1 April 2002 until 31
March 2003 and has enjoyed a high level of attendance. The membership has
grown from eight to thirteen. The increase in numbers was as a result of the
co-option of the resident magistrate from Newry and Mourne Family
Proceedings Court, Northern Ireland Youth and Family Court Association
members and representatives from the Northern Ireland Court Service and
both aspects of the legal profession. The effect has been not only to expand
the knowledge base of the Committee but also to engender a better
understanding of the various disciplines engaged in the family justice
system.
The question of the Committee’s terms of reference had been the subject of
discussion in a number of the earlier meetings during the year. It was agreed
that in order to improve communication between the two tiers of the
committee structure that the Advisory Committee’s minutes should be
disseminated to the Business Committees. This was to supplement the flow
of information already supplied by representatives of a number of bodies
who served on both of the Committees and/or various sub-committees of the
Advisory Committee.
page 25
The Work of the Family Court Business Committees
Among the issues regularly considered was the subject of statistics. While
there was a body of opinion that believed that the statistical reports did not
accurately reflect the volume of business, others considered it a natural
3 consequence of manually recording convoluted information. It is hoped that
the advent of an integrated computer operating system will reduce, if not
eliminate, this concern. Even so, the statistics showed an improvement in the
time within which cases were being disposed of.
The Committee also noted with regret the increasing time taken for the
appointment of a Guardian ad Litem in public law proceedings. The
Agency’s representative reported that a recruitment campaign and a
forthcoming budget allocation could hopefully lessen these delays. However,
representatives of the Health and Social Services Trusts and legal profession
reported the effective use of timetabling, particularly in public law
proceedings, had added considerably to the efficient use of court time and
the progress of cases through the system. While this had only been
introduced during the latter part of 2002, it was still considered to have had
a beneficial impact on the disposal times.
The Committee expressed its appreciation to the staff of Lisburn Court
Office for securing and assisting in additional sittings of the family
proceedings court in Lisburn. This, together with other case management
initiatives has had the overall effect of creating court lists that are more
conducive to promoting the inquisitorial, rather than adversarial nature of
Children Order proceedings.
The Committee, towards the end of 2002, considered the possibility of a
multi-disciplinary forum to be held in the Craigavon Courthouse. It was
intended that this would present an opportunity for all those involved in
family proceedings to meet in a less formal setting to discuss matters of
mutual interest. In addition to having an educational element, it would also
provide an opportunity for the various professions to enhance their
understanding of the pressures and constraints that each operates under. As a
result of the high levels of support and interest expressed the Committee
intended to hold its first multi-disciplinary forum in May.
The Committee acknowledges, not only the support of all its members who
have given of their time so generously, but also the secretariat who have
provided an excellent service, in terms of time, effort and commitment.
page 26
Issues considered and Presentations made
during 2002/03
4
COURT-RELATED FAMILY MEDIATION PILOT
PROJECT
The following is a synopsis of a presentation made to the Committee in
September 2002 by Robin McRoberts , Director of Services Relate NI
Within Northern Ireland, one in three first marriages and one in two
second marriages end in divorce. Each year, some 2500 children in NI
under the age of sixteen are affected by their parents’ divorce, with the
average age being seven. Often family break-up is characterised by anger,
conflict and acrimony over parenting arrangements such as where the
child(ren) will live and how often the non-resident parent will see them.
Research suggests that, within three years of divorce, 50% of non-resident
fathers lose all contact with their child(ren). Relate NI is concerned about
the hurt and damage done to children as a result of on-going family
conflict and the feelings of confusion and insecurity which often result.
With this in mind an exciting new pilot project is to be launched in January
2003 focused on providing a family mediation option for couples referred
by two family proceedings courts
Commencing in January 2003, Relate NI will be piloting an 18-month
Family Mediation Pilot Project in conjunction with two family proceedings
courts (Ballymena and Belfast). In delivering the project, Relate NI is
working closely with the NI Court Service and three Health and Social
Services Trusts (South & East Belfast; North & West Belfast; Homefirst) all
of whom have contributed financially to the project budget. Family
mediation offers a constructive alternative to what is often an adversarial
approach to dealing with family disputes. As a result, consistent with two of
the main principles of the Children (NI) Order 1995, the welfare of children
can be held as paramount and parental responsibility can be encouraged. It
is estimated that around 75 cases will receive family mediation within the
pilot project. Provided the parties are in agreement, magistrates will make
referrals to Relate NI so that during a period of adjournment of proceedings,
separated parents who are in dispute over matters such as contact and
residence can be assisted to reach agreement on parenting arrangements,
through participation in a series of confidential sessions with a qualified
family mediator. Usually, these sessions begin with two separate intake
appointments and then approximately four further joint sessions. The
parenting agreements are then brought back to the court by the parties
themselves/through their legal representatives, for the court’s endorsement.
Mediators and mediation practice will operate in accordance with the
page 27
Issues considered and Presentations made during 2002/03
national standards and code of practice established by government through
the UK College of Family Mediators.
4 The family mediation sessions will be provided on Relate NI’s neutral
premises in Belfast and in Ballymena, as a key part of an impartial,
independent support to parents. Within the Pilot Project, family mediation
sessions will be provided free of charge at the point of delivery.
Some advantages of family mediation are that:
• A parenting agreement can be reached with the support of a skilled
mediator who does not take sides
• Conflict and acrimony between the parties can be minimised
• Each party is respected and agreements are balanced so no one needs to
be a winner or a loser
• Parents are helped to continue to take responsibility for the upbringing
of their child(ren) even though their own relationship has broken down
and they live apart
• Parents are encouraged to find new solutions to parenting arrangements
through cooperative problem solving rather than dwelling on angry
feelings about who may have been right or wrong in the past.
Divorce is regarded as the second most stressful life event for adults, after
the death of a spouse. One of the things which makes it so stressful is
prolonged disagreement about parenting and the conflict which accompanies
poor communication and lack of collaboration between parents whose
marriage has ended. Research suggests that mediated settlements in family
disputes are more enduring than court-adjudicated decisions and result in
better immediate and long-term outcomes for children (Lindstein &
Meteyard, 1996; McCarthy & Walker, 1996; Wilson, 2002). Moreover, it has
been shown that children benefit from regular, ongoing contact with both
parents (Bauserman, 2002; Home Office, 1999). Clause 5 of the Family Law
(Divorce etc.) Bill introduced in the N.I Assembly on 9 September 2002,
declares ‘the court’s power in divorce……to adjourn proceedings for
mediation’. It also confirms that ‘mediation allows parties who are definitely
not going to reconcile to reach their own agreement as to the future
arrangements for their children’ (ibid). Good practice from other parts of the
world affirms the value of non-judicial determination of legal issues
regarding family breakdown. For instance, in Australia the courts make use
of mediation and conciliation counselling as their primary dispute resolution
method, resulting in 95% of family law cases being satisfactorily resolved
and thus not proceeding to litigation or complaints procedures. Significantly,
21% of the Australian Court budget is designated for the provision of such
services. In the Republic of Ireland, the provision of family mediation is
page 28
Issues considered and Presentations made during 2002/03
state-funded. In the past decade there has been a proliferation of family
mediation programmes, both public and private, throughout Canada. Today
virtually every province funds and operates some form of family mediation
4
programme. These programmes are often directly connected to the courts or
are community-based with links to the courts and other social services.
Family mediation is fast becoming an adjunct, or even an alternative, to
court-based family justice services. It is widely promoted as a constructive,
consensual and low-cost alternative to litigation.
The Pilot Project commencing in January 2003 seeks to demonstrate clearly
the need for family mediation in Northern Ireland and intends to identify the
benefits of resolving family disputes through negotiation, co-operation and
agreement. It also hopes to show what works and what does not work within
family mediation, which types of cases are most likely to benefit etc. The
project will be externally evaluated by the Office of Law Reform who will
be carrying out research with parties, mediators, magistrates and solicitors.
An end-of-project report will be produced and widely circulated in late 2004.
References:
Bauserman, R (2002): ‘Children Better Adjusted in Joint v Sole Custody’:
Journal of Family Psychology: Vol. 16, No.1.
Home Office (1999):
Guide to Shared Parenting After Divorce: London:
Family Policy Unit
Lindstein, T & Meteyard, B (1996):
What Works in Family Mediation:
Dorset: Russell House Publishing Limited.
McCarthy, P & Walker, J (1996):
Evaluating the Longer Term Impact of
Family Mediation: Newcastle: Centre for Family Studies, University of
Newcastle upon Tyne.
Taylor, A.Y (2001):
The Handbook of Family Dispute Resolution: Mediation
Theory and Practice : San Diego, CA: The Jossey-Bass Library of Conflict
Resolution
Wilson, B (2002): ‘The Triumph of Uncertainty – or Measuring Mediation’:
Family Law: January 2002: pp. 64-67.
FURTHER INFORMATION
Any enquiries about the Pilot Project may be addressed to the Director of
Services, Relate NI, 76 Dublin Road, Belfast BT2 7HP.
Telephone: 028 9022 0906
page 29
Issues considered and Presentations made during 2002/03
CHILD CARE IN NORTHERN IRELAND - THE
WIDER PICTURE
4 The following presentation was made to the Committee in October 2002 by
Mr Leslie Frew, Director of the Child & Community Care Directorate of
DHSSPS.
Background
There are approximately 450,000 children in Northern Ireland representing
27% of the total population. This is a higher percentage of children than in
any other part of the United Kingdom.
Children here are more socially and economically disadvantaged than
children in Great Britain with more children in lone parent households and a
higher proportion as dependants of claimants of Job Seeker’s Allowance and
Income Support benefits.
In 1999/2000, a total of 24,000 referrals involving 16,000 children were
made to social services. Over 3,200 child protection referrals were made and
almost 1,500 children’s names were included on child protection registers, a
slightly higher ratio than in Great Britain. There are approximately 2,500
children in care or “looked after” by social services. Of these, 67% are in
foster care, 12% are in residential care and the remainder are placed with
their families or elsewhere. Despite our higher levels of disadvantage, the
extent to which our children are in public care is broadly comparable with
levels in Great Britain. Expenditure, however, on children’s services in
Northern Ireland is about two-thirds the level of that in England. The gap
between us has widened slightly in recent years with between 30% and 40%
of expenditure on foster care and residential care; the proportions in England
and Northern Ireland are similar.
Services
There is a link between each component of the child care system which
means that undersupply in one service has the potential to influence the
effective operation of other services within the range of provision available
for children and their families.
Foster care
Foster care is the mainstay of the child care system. Current trends show,
however, that the number of foster carers continues to drop and considerable
work will have to be done to retain existing foster carers and recruit new
ones. Foster carers will need not only enhanced remuneration systems but
also timely support from social workers in responding to the needs of the
vulnerable children for whom they are caring.
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Issues considered and Presentations made during 2002/03
Residential care
There are also problems in residential care. The lack of investment for
4
children in recent years has led to a marked decline in residential care places
and a virtual collapse in the voluntary sector provision of such services. The
Children Matter Task Force was established in 2000 to develop a regional
plan to redress the deficits, both in terms of number of places and range of
provision within the children’s residential sector. The Task Force, in its
Phase 1 report, identified a need for an additional 155 residential places to
bring the total provision up to 487 by 2004/5. Work is in hand on the Phase
2 plan which will address the need to develop more specialist residential
services for children across Northern Ireland. It is expected that Phase 2 will
provide an additional 75-80 places and replace the regional centres at
Lakewood and Glenmona.
Secure accommodation
Secure accommodation is defined in the Children (NI) Order 1995 as
“accommodation provided for the purpose of restricting liberty” and there
are strict controls on its use by Trusts. Children should only be placed in
secure accommodation in extreme circumstances and its use must be
balanced with human rights considerations regarding the restriction of
children’s liberty. Trusts are under a duty to make alternative arrangements
where possible.
At present there are 15 secure accommodation places; 7 of these places were
provided in January 2001. While there will always be a number of children
for whom secure accommodation is needed, the real issue is the need to
develop a range of specialist residential care services to address the complex
needs of some children. This issue is being addressed by the Children Matter
Task Force which is also monitoring the use of secure accommodation. A bid
has been made for resources to provide a replacement facility for the current
unit. While ideally this would have been left until all the other forms of
provision envisaged in Children Matter were in place, the Secure Care
Report, the Social Services Inspectorate’s report’s findings in relation to the
current facility, has prompted a quicker response. £6m is available from the
Children’s Fund and work is under way to consider options for the site and
design of the replacement facility.
Psychiatry
The Secure Care Report also identified a lack of adequate child and
adolescent psychiatry as a contributory factor in the high demand for secure
places. The inpatient bed provision has recently been increased from 6 to 12
places. This is seen as an interim measure until a new facility can be put in
place. The need for secure places within the new facility is being considered.
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Issues considered and Presentations made during 2002/03
Adoption
As well as the pressures being faced in residential and foster care, there is a
4 need to promote permanency planning for children in order to reduce to a
minimum the number of children who grow up in State care. The promotion
of permanence and adoption has significant implications for social work in
terms of improved assessment and planning skills, and access to assessment
facilities, to ensure that there is no drift in care for children for whom return
home is unlikely. There is also a need to strengthen family support to enable
parents to provide adequate care for their own children.
Workforce planning
Staffing is a major element of the provision of family and child care services.
Developments which are needed in residential care, foster care and adoption
all have implications for workforce planning, and there is an awareness that
both fieldwork and residential social work posts for children are inadequate
even to deliver on the current agenda. There is a need to recruit additional
family and child care social workers and to find ways to improve their
working conditions in order to retain qualified staff in this area of practice.
COURT SUPPORT SERVICES
The following is a summary of a discussion paper entitled
‘Proposal for a
Rationalisation of Court Support Services for Children and Families in
Northern Ireland’ was tabled during 2002/2003 by the Director of the
Northern Ireland Guardian ad Litem Agency.
In Northern Ireland the support services in the civil courts for children and
families are delivered via a mixed economy of public and voluntary
organisations and a few private individuals. The 3 main services are provided
as follows: -
•
Northern Ireland Guardian ad Litem Agency – an independent guardian
ad litem service for children in specified public law and adoption
proceedings
•
Health and Social Services Trusts – provide court welfare reports in
private law proceedings
•
Official Solicitor’s Office – may act as legal representative, guardian ad
litem or amicus curiae in specific cases in the High Court and county
courts
There are 2 other services which have potential to provide a significant
service to children and families involved in court proceedings.
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Issues considered and Presentations made during 2002/03
•
Family Mediation Service – a vastly underdeveloped service confined
mainly to the Belfast area with a small number of private accredited
mediators plus a relatively new pilot scheme provided by a voluntary
4
organisation allowing referral from the courts. (The Republic of Ireland
has had a National Family Mediation Service since 1986)
•
Contact Centres – based in the voluntary sector with 3 in Belfast and 1
in Cookstown; but no regional strategy for development. Supervised
contact between children and separated parents on request from the
courts is not available. (By contrast, in February 2003 £2.5 million was
secured from the Children’s Fund in England mainly to provide 12
additional supervised contact centres.)
The Discussion Paper posed the question ... “could a rationalisation of these
services yield dividends in terms of greater co-ordination, efficiency and
effectiveness of service for children and families and also for the respective
family proceedings courts in Northern Ireland”.
A section on Children’s Rights was included with particular emphasis given
to freedom of expression; there was also an analysis of the rationale for the
recent restructuring of court support services in England and Wales (not that
this solution should necessarily be replicated in this jurisdiction, but that we
might learn from the experience of others).
The Child’s Right to be Heard
The Human Rights Act 1998 came fully into force throughout the United
Kingdom on 2 October 2000: it incorporates into domestic law the rights and
freedoms guaranteed under the European Convention on Human Rights
(ECHR).
Article 10,
Freedom of Expression, ECHR, states inter alia:
“Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and import information and ideas without interference and
regardless of frontiers …..”
Also, Article 12,
United Nations Convention on the Rights of the Child
provides as follows,
“States parties shall assure to the child who is capable of
forming his or her own views the right to express those
views freely in all matters affecting the child, the views of
the child being given due weight in accordance with the
age and maturity of the child.
For this purpose the child shall in particular be provided
the opportunity to be heard in any judicial or
administrative proceedings affecting the child either
page 33
Issues considered and Presentations made during 2002/03
directly or through a representative or an appropriate body
in a manner consistent with the procedural rules of national
law.”
4 These basic rights should be accorded to all children. Unfortunately in the
court system there are different approaches to children depending on whether
they are involved in private or public law proceedings; in public law cases
the child has party status but in private law disputes about residence and
contact the child is not party to proceedings. In public law proceedings, the
child has a Guardian ad Litem and a children’s solicitor to represent him/her,
but no such representation is available for the child in private law
proceedings.
It is suggested that the current dichotomised approach is unsustainable.
There is provision in statute in the Republic of Ireland for the separate
representation of children in private law proceedings and in England the
Adoption and Children Act contains provision for representation by a
Guardian ad Litem and children’s solicitor in residence and contact disputes.
The children of Northern Ireland should surely be afforded similar statutory
rights.
Any future reconfiguration of court support services must allow for such
legislative change.
Experience of England and Wales
The Discussion Paper proceeds to examine in some detail the case for the
recent rationalisation of court support services in England and Wales. The
Guardian ad Litem service, the court welfare service and the service relating
to children in the Office of the Official Solicitor were amalgamated to form
a new national agency, the Children and Family Court Advisory and Support
Service (CAFCASS).
The grounds cited were as follows:-
• Logic and coherence
• Greater efficiency
• Single, strong service rather than currently marginalised services
• Better co-ordinated, seamless service for families and children
• Better working environment for practitioners
Some lamented that the reorganisation had not gone far enough. The
Advisory Board on Family Law in England urged the Lord Chancellor in its
Annual Report (June 2000) to make more radical use of CAFCASS and to
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Issues considered and Presentations made during 2002/03
extend its remit “to provide children and their parents with a service offering
information and advice; facilitating access to a range of other relevant
services, including contact centres, mediation, programmes for victims and
4
perpetrators of domestic violence and abuse, as well as other child and
family based services available locally.” It is argued that the wider focus
advocated by the Advisory Board on Family Law should be reflected in an
overarching strategy for Northern Ireland and in any future restructuring of
court support services.
Pathway to a Northern Ireland Solution
The court support services in this jurisdiction are fragmented, disjointed and
under resourced. Two initiatives are urgently required to be undertaken at
governmental level :-
(i) the production of a shared, strategic vision in order to ensure greater
coherence and provide a more effective and efficient service to the
courts and to children and their families
(ii) a review of current structures for the provision of court support
services with a view to producing a recommendation for future
rationalisation
In Northern Ireland the structures for delivery of service to the children
involved in both public and private law proceedings have significant
differences compared with those in England and Wales. Hence, although we
can learn from others, any proposed rationalisation of services should be
specific to this jurisdiction. A future re-structuring of current services within
an all embracing strategic vision would have to take account of current
provision, future statutory duties (e.g. representation of children in private
law proceedings), potential economies of scale and the ability to deliver an
improved generic service to the courts, children and families.
MULTI-DISCIPLINARY DEVELOPMENTS
The multi-disciplinary approach is one of the leitmotifs associated with this
Committee. Having a membership which brings together individuals with
special expertise drawn from the professions and agencies with
responsibilities for court proceedings under the Children Order, we
recognise the vital role that an inter-agency approach adopts.
Most members of the Committee attended the inaugural Multi-Disciplinary
Family Law Conference on 28 and 29 March 2003 at Newcastle, County
Down organised under the aegis of the Judicial Studies Board for Northern
Ireland and the Department of Health, Social Services and Public Safety.
This wide-ranging conference to create and foster a culture of inter-
disciplinary co-operation in the family justice system and to explore the
means of doing it was the first conference of this scale to provide the setting
page 35
Issues considered and Presentations made during 2002/03
for a discussion and inter-change of ideas between such disparate parts of the
family justice system as the judiciary, barristers, solicitors, senior
representatives of the Department of Health, Social Services and Public
4 Safety, Directors of Trusts, medical consultants, academics, members of the
Guardian ad Litem Agency, social workers, Police Service for Northern
Ireland and representations from virtually every other professional body
concerned with child care.
The organising Committee of that conference is still in existence and will
serve to operate as a monitor of further developments. We welcome the
setting up of the Children and Young People’s Strategy which is going to be
Northern Ireland’s mechanism for implementing the United Nations
Convention on the Rights of the Child 1989. Closer relations are also being
forged between the medical profession, the judiciary and the legal profession
with a series of visits by medical practitioners to the courts to witness at first
hand the operation of the system of which they are an integral part. COAC
has set up a Multi-Disciplinary Literature Committee to ensure the spread of
appropriate research papers throughout the system. The Family Court
Business Committees are now regularly putting into action inter-agency
training sessions to enable the process to be continued at the coalface.
Our sub-committees, although principally made up of members of the full
Committee, now regularly co-opt persons outside the Committee who can
make a contribution to the object of our investigation. Training of the
judiciary, the profession, and social workers with a multi-disciplinary theme
is now very much to the fore.
Much work therefore has been done in this direction with this theme in mind
during the course of the past year. It has played a vital role in the approach
to our remit and will continue to do so.
page 36
Other Issues of Concern
5
SOCIAL WORK TRAINING
The Children Order Advisory Committee recognised that child protection
work is both very demanding and no longer a popular area of social work.
Social workers have heavy caseloads. The presentation of public law cases
in court is regarded with considerable apprehension, particularly by young
social workers coming fresh from university. The demands of child
protection work have increased. There are expectations that newly qualified
social workers will assume responsibility for complex child protection issues
despite their limited practical experience. There is also a concern that the
increasing use of experts to give evidence in court in childcare cases has
detracted in itself from the standing of social workers. Previously, where a
social worker would have felt competent to give evidence on attachment
theory, that evidence is now frequently given by a child psychologist who is
an expert on attachment theory.
Against this background a multi-disciplinary sub-committee was appointed
to consider how social work training could help address such issues. The
sub-committee was initially asked to give particular thought to identifying
the training necessary to equip social workers to meet the demands of the
court process. After discussion it became quite clear to the sub-committee
that it should look at what was required to give students the knowledge and
analytical ability to deal with the increasing demands of child care cases and
that that would in itself assist them in the court process.
Whether a case ultimately comes before a court or not, decisions have to be
made on sound child care principles, with a care plan which provides the best
possible outcome for the child. Consequently, the sub-committee felt that the
quality of social work investigation, decision-making and planning for the
future of a child must be able to stand up to scrutiny.
It was also acknowledged by the sub-committee that the universities are
responsible for many students who do not embark on a social work career in
the field of child protection. Nevertheless child protection has special
training requirements and those must be met in order to address the needs of
children who come into contact with the care system.
Consequently the sub-committee made the following recommendations:
1. The academic and legal aspects of childcare should be taught together
with the legal basis of the Children Order.
page 37
Other Issues of Concern
2. The academic information should be applied to problem case studies.
Students would have to identify the childcare issues in the problems
presented to them. At this stage they should be encouraged to identify
5 potential difficulties that might arise should the parents not consent to
the care plan and a court hearing would become necessary. This would
necessitate the student being able to identify what evidence the court
would require to support their application for a care plan.
3. The universities should offer modules in child development, the needs of
adolescents in care, attachment theory, failure to thrive, dynamics of
sexual abuse and planning within the care continuum.
The sub-committee also considered that the proposed registration year for
social workers after their university education was crucial to improving
social work practice.
It is envisaged that graduates would be employed by the Health and Social
Services Trusts during this registration year, but not regarded as qualified
social workers until they have completed it. During this time they would be
assigned to a senior social worker and work under direct supervision, starting
with simple cases. Thus someone in this registration year would be regarded
as a trainee or probationer. In placement, the trainee/probationer should be
given the opportunity to follow a case at all levels within the court system
i.e. family proceedings court, family care centre and the Family Division of
the High Court. It was felt by the sub-committee that during the registration
year trainee/probationers should spend a period of 3-4 weeks in each
university term, in the university setting where they would be expected to
write up case studies of the cases in which they were involved, while on
placement. This would include any court involvement. The
trainee/probationer would also have to write a care plan on set problems
taking into account the experience they have had in practice.
Consideration should be given to the presentation of a case in a court setting.
As with law students, this would include their performance being videoed.
Specific attention would be paid not only to content, but also to audibility
and presentation.
The trainee/probationer must be taught to clearly identify the difference
between giving instructions to their legal advisers, taking legal advice and
instructing their lawyers on the outcome they regard to be in the best
interests of the child.
There needs to be a rigid structure for the registration year that will ensure
that each Trust is giving its placement students the same quality of
supervision and experience. It must also be regarded as continued
professional training.
Universities must also have the opportunity to have the trainee/probationer
returned to test what they have learned from their practical experience. This
page 38
Other Issues of Concern
will mean the continuous assessment of the written work submitted by
students. Court presentation should be included in this assessment and
consideration given to an exit examination at the end of the registration year.
5
Such an approach would increase the ability of newly qualified social
workers to meet the demands of child protection work. The exit examination
would also ensure a uniform standard for the trainee/probationer, so
enhancing their professional standing.
The sub-committee also felt that the universities should have an advisory
role on good practice within the field of childcare.
TELEPHONE CONFERENCING
One of the key remits of the Children Order Advisory Committee is to advise
Ministers on the progress of Children Order cases through the court system
with a view to identifying special difficulties and reducing avoidable delay.
In this context the Children Order Advisory Committee considered and
welcomed the development of the concept of telephone conferencing in case
management.
Throughout the family courts, much time is taken up with short hearings for
directions or reviews as to readiness which provide a necessary and
generally effective form of case management. However, by virtue of the
multiplicity of applications, the system is time-consuming and in some
instances time-wasting. Professional witnesses often travel very large
distances throughout the Province to the High Court for hearings which are
often short and in some instances perfunctory. The competing demands on
practitioners’ time coupled with time spent waiting for the case to be called,
result in a disproportionate waste of expense and professional time for what
amounts to very little gain in a number of instances. This inevitably
occasions delay and inappropriate expenditure of public funds.
Accordingly the High Court in Belfast set up a pilot project to test out the
advantages of telephone conferencing for cases where at least one of the
parties resides 20 miles or more outside Belfast. It must be emphasised that
telephone conferencing is only envisaged for simple direction/review
hearings and is not contemplated at this time for full hearings.
Following the successful pilot scheme, the views of the professionals
involved have been solicited and protocol is now being drawn up. The
guidelines will embrace the following:
(1) British Telecom will provide a tape recording of each hearing.
Assurances have been received as to the confidentiality of these tapes. It
may be however that the court system itself will be able to make tape
recordings available with the equipment now available.
page 39
Other Issues of Concern
(2) Only straightforward direction hearings will be determined by way of
telephone conferencing since the process does not really lend itself to
cases relying on legal authorities or lengthy evidence being called.
5 (3)Such straightforward direction hearings would not be heard in cases
which are likely to last more than 20 minutes. Telephone conferences
require to be pre-booked to a fairly specified time period. Accordingly a
lengthy hearing would prevent a series of cases being heard because of
the time sequence involved in BT making contact with the various
parties.
(4) The court needs to be appraised of any unusual features of the
application so that a proper preparation can be made.
(5) The reasonable costs will be borne by the Northern Ireland Court
Service.
(6) Mobile phones would have to be available to the party so that
instructions can be taken in privacy should the need arise during the
course of hearing.
(7) The moving party is to take responsibility for informing all parties
concerned that such an application is to take place. Consent of all parties
must be obtained. If it is not entirely consensual then such applications
will not occur. It is therefore unlikely to take place where there are
personal litigants.
The end result of this will be that parties, professional witnesses and
professional representatives who reside 20 miles or more outside Belfast will
be able to remain in their offices and avail of the telephone conferencing
system without the attendant need to travel. The aim is to process this
concept for, say, three months and thereafter review its success. It is hoped
that there will be a significant saving in time and public expense. The
Children Order Advisory Committee awaits the outcome of the process and
welcome its introduction. We are hopeful that it can be extended throughout
the system in appropriate cases.
“CREATING A VISION FOR OUR CHILDREN”
Response By The Children Order Advisory Committee To A Consultation
Document Issued By The Children And Young People’s Unit Of The Office
Of The First Minister And Deputy First Minister
The Children and Young People’s Unit of the Office of the First Minister and
Deputy First Minister began consultation on an informal basis in relation to
the development of an overarching strategy for children and young people in
Northern Ireland in November 2002. A consultation document was issued
page 40
Other Issues of Concern
entitled “Creating a Vision for all our Children; A Framework for
Discussion” which sought information, views and opinions on the suggested
structure for the strategy document, the assumptions made and the specific
5
questions which should be proposed. The responses to this stage of
consultation will enable the Children and Young People’s Unit to draft a
formal consultation paper outlining their draft proposals for the strategy
which should be published for full public consultation in Spring 2003.
Recognising the fundamental importance of the development of an
overarching children’s strategy, The Children Order Advisory Committee
made a short submission in response to “Creating a Vision for all Our
Children”. The first part of the submission details the work being carried out
by the sub committees of the Children Order Advisory Committee indicating
key areas of concern.
The second part of the submission responds directly to the questions posed
by the consultation document. The Children Order Advisory Committee
welcomes the first steps taken by the Children and Young People’s Unit to
drive the development of a comprehensive strategy within government to
ensure that services for children and young people are co-ordinated,
monitored, promoted and effectively funded. It is the view of the Committee
that the key to the development of a successful and dynamic strategy
framework is for widespread consultation to take place with all key
stakeholders, including children and young people themselves.
Structure Of The Final Strategy Document
In terms of structure the strategy should reflect the considerable changes,
which have taken place in the legal and administrative context of the
provision of services for children and young people in Northern Ireland, in
particular through the incorporation of the European Convention on Human
Rights by The Human Rights Act 1998 and by the growing recognition of the
rights of children as enshrined in the United Nations Convention on the
Rights of the Child. It would be helpful to set out the legislative and policy
context of the provision of services for children and young people in
Northern Ireland together with an outline of Board and Trust structures and
current funding arrangements for children’s services. A section could be
included on the court system and children, outlining different types of family
proceedings and the current court support services available to children and
families. Each overall objective should be accompanied by the legislative
and policy background outlining key recent developments and proposed
developments together with key relevant baseline statistical data. Objectives
should be time limited, measurable and subject to scrutiny and review.
page 41
Other Issues of Concern
Underlying Assumptions/Values And Principles
The Children Order Advisory Committee agrees that the starting point for a
5 comprehensive strategy should be The United Nations Convention on the
Rights of the Child and that careful consideration should be given to the
specific recommendations of the United Nations Committee on the Rights of
the Child, published in October 2002.
It is recommended that the strategy document should also outline the key
rights for children and families enshrined in the European Convention on
Human Rights as incorporated by the Human Rights Act 1998.The guiding
principles enshrined in The Children (NI) Order 1995 should be reflected
fully in the values and principles underlying the proposed strategy.
Specific Areas For Consideration Within The
Strategy
The submission outlines the following general issues for children and young
people arising within the statutory remit of the work of The Children Order
Advisory Committee:
• The need to ensure the best interests principle is enshrined in all
legislation and policy affecting children;
• The strategy should provide an overarching framework for the
meaningful participation of children and young people in decision
making processes;
• There is a need for an adequately resourced family justice system which
can provide an effective, timely and comprehensive service for children
and their families;
• Court support services need to be adequately resourced and there needs
to be a strategic and regional approach to the planning of child contact
centres and mediation services;
• Family support services are of central importance including positive
parenting programmes and services for children in need including
mental health services;
• The strategy should address the needs of looked after children in
Northern Ireland;
• The strategy should address the educational needs of children;
• The strategy should address the impact of domestic violence on
children;
page 42
Other Issues of Concern
• There is a need for a comprehensive child protection system;
• The strategy should recognise the importance of training /information
5
systems on legislative and policy developments;
• Information and advice should be available to children and young
people and their parents/carers in an accessible format;
• There is a need to develop databases of appropriate experts and services
for children and young people in Northern Ireland;
• The strategy should address the interface between Children Order
proceedings and adoption proceedings;
• The strategy must recognise the importance of the development of
interdisciplinary best practice.
page 43
page 44
The Children Order Advisory Committee -
the Future
6
The future of this Committee will be built on the secure foundations that
have now been established. The system of sub-committees which we have
adopted allows us to focus on a number of wide and disparate issues
simultaneously. The number of such committees has now grown to a point
where currently we have nine separately operating, several of which will be
permanent sub-committees in situ to hone and develop proposals already
made in light of gathering experience.
The best practice guidelines which we have drawn up will hopefully form an
evolving and developing cornerstone of practice throughout the court
process. It is important that we ensure that these guidelines are seen as living
instruments by all those in the child care system. They will need to be
carefully monitored as time goes on, and suggestions for modification,
addition and revision will undoubtedly emanate from all quarters with the
passage of time. Coincidentally with our publication, England and Wales has
produced
“The Protocol for Judicial Case Management in Public Law
Children Act Cases”. As with our guidelines, this is a further attempt to
tackle delay and provide better outcomes for children. It provides a step-by-
step analysis through a public law case and sets out what is required for each
party at each stage. Our Committee will examine this in the forthcoming year
to discover if it can contribute any additional assistance to the different
context of Northern Ireland. These twin developments in Northern Ireland
and England and Wales are surely a harbinger of more active future co-
operation between the two jurisdictions to tackle common problems. Their
parallel advent may provide a spur to each other.
Similarly our paper on delay will provide a parallel avenue for exploring the
causes of delay as a necessary pre-cursor for action to obviate it. The blue
print of our report will also doubtless change in terms of emphasis and
content as critical analysis of our document emerges and is considered by
this Committee. This discussion paper will continue to be assessed by our
Committee throughout the forthcoming year and doubtless will form a very
substantial part of our work.
The Committee has also caught the current tide of concern that children may
not be getting sufficient say in court proceedings, even though family court
advisors adopt the practices specifically tailored to the needs of children and
are skilled at what they do. Our own paper on separate representation is now
out for discussion with the professional bodies. Again coincidentally in
England and Wales a report
“Constructing Children’s Welfare: A
Comparative Study of Professional Practice” (ESRC, 2003), funded by
the Economic and Social Research Council has been published. That
research suggested that children’s voices are not being heard in family
page 45
The Children Order Advisory Committee - the future
proceedings, in public or private law cases, in the way that was intended by
the Children Act 1989 or in line with their rights under the United Nations
Convention on the Rights of the Child 1989. Our own Committee’s views on
6 the representation of children will develop throughout this year and
doubtless will take on board the current thinking in England and Wales on
this topic. It provides a challenging and arresting area to which we will
continue to commit our efforts in the future.
Last year our report welcomed the advent of a wind of change heralding a
new inter-disciplinary approach throughout family law. This Committee is
completely wedded to that concept and our work in future including the
valuable efforts of our sub-committees on domestic violence, mediation,
multi-disciplinary literature, secure accommodation and contact centres will
all thoroughly embrace the multi-disciplinary ethos. This Committee
provides a unique opportunity for all the disciplines involved in the child
care system to work together in the particular areas of our remit. The
cumulative thinking of those involved has already spawned a wide number
of topics for our appraisal as evidenced by our wide selection of sub-
committee work. I have no doubt that there are many other tasks that lie
ahead and that with this ethos our work will expand for the benefit of
children in this province.
Much is happening in the world of child care and protection. Much remains
to be done. This Committee is anxious to rise to the challenge and to
contribute through active discussion and positive action to the resolution of
outstanding issues within the ambit of our remit.
page 46
Appendix 1
Membership of the Children Order Advisory
Committee during the currency of the 4th Report
Mr Justice Gillen (Chairperson)
High Court Judge (Family Division)
His Honour Judge Markey QC
County Court Judge and Family Court
Judge for the Belfast Family Care
Centre
Her Honour Judge Philpott QC
Recorder of Londonderry and
Family Court Judge for the
Londonderry Family Care Centre
His Honour Judge McKay QC
County Court Judge and Family Court
Judge for the Craigavon Family Care
Centre
Mr Robert Alcorn
Resident Magistrate
Mr Ronnie Williamson
Executive Director of NIGALA
(Replacing Mary Connolly
in June 2002)
Mr Norman Humes
NI Youth and Family Courts
Association
Mr Leslie Frew
Director, Child & Community
Care Directorate
Mr Paul Martin
Chief Inspector,
Social Services Inspectorate
Mrs Catherine Dixon
Solicitor
Mr Noel Rooney
Executive Director, North & West
(Resigned from Trust
Belfast H&SS Trust
in March 2003)
Prof Dominic Burke
Director of Social Care, Western
H&SSB
page 47
Appendix 1
Mrs Gillian McGaughey
Barrister at Law
Miss Hilary Wells
Assistant Director, Directorate of
Legal Services, Central Services
Agency
Miss Brenda Donnelly
Official Solicitor to the Supreme
Court
Mr Eric Strain
Civil, Family & Coroners Policy
Branch, NICtS
Ms Tara Caul
Children in Northern Ireland
formerly Childcare (NI)
Mrs Eileen Magee (DHSS&PS)
Secretariat
(Replacing Hugh Leslie
in February 2003)
Mr Austin Harper (NICtS)
Secretariat
page 48
Appendix 2: Statistics
Commentary
The statistics which form the basis of the tables and figures in this appendix
are collected as a census of the Children Order business in all the courts in
Northern Ireland. Except where otherwise indicated, all figures and tables
cover the financial year 2002/2003. With the exception of those figures
contained in Tables 3 and 4, which are case based, figures relate to individual
applications. There may be more than one application per child and more
than one child per case. In 2000/01 and subsequent years the period referred
to in each figure covers the 12 months from April to March whereas the
period referred to in previous years covers the calendar year, January to
December.
Wardship Actions
At the time of the introduction of the Children Order in November 1996 a
marked decline in the number of wardship actions made in the High Court
was observed reflecting the restrictions placed on such applications by the
Children Order. Since the introduction of the Order, wardship actions have
remained at a consistently low level with no significant increase observed
between 1998 and 2003. (See Table 1 and Figure 1).
Applications and Disposals
Table 2 shows the number of applications lodged and disposed of in all court
tiers for 2002/2003. Applications lodged outnumbered disposals causing an
increasing number of outstanding applications. Figure 2 shows the number
of applications lodged and disposed of each year since 1997.
During 2002/2003, 14% of applications lodged concerned Public Law and
86% concerned Private Law. This was mirrored in the ratio of disposals (See
Figure 3).
Care orders accounted for the majority of public law disposals (see Figure 4)
where the percentage rose from 49% in 2001/02 to 60% in 2002/03. The
most common types of order made in private law cases were Contact (50%)
and Residence (34%) (See Figure 6).
Transfers
Table 3 shows the number of cases transferred and the reasons for transfer
quoted. More than one reason may be given for each application. The most
page 49
Appendix 2: Statistics
frequent reason given for transfer to the Family Care Centres was
complexity (61% in 2001/02 and 58% in 2002/03), while for transfers to the
High Court the main reason was consolidation (46% in 2001/02 and 48% in
2002/03). During 2002/03 transfers from the Family Proceeding Courts and
Magistrates Courts to the Family Care Centres made up around 1% of all
applications entered. (In 2001/02, such transfers accounted for 2% of all
applications entered).
Disposal Times
Table 4 and Figure 5 shows the relative disposal times for both public and
private law cases in each court tier for 2002/03. In the Family Proceedings
Courts, average disposal times were 23.0 weeks for public law and 21.6
weeks for private law cases. In the Care Centres, they were 31.6 weeks for
public law cases and 38.8 weeks for private law cases. public law cases in
the High Court took 40.1 weeks and private law cases took 47.7 weeks.
Lodgement to disposal times have increased between 2001/02 and 2002/03
in all court tiers, except for the Care Centres which have declined
significantly, (i.e. from 42.9 weeks to 31.6 weeks for public law cases, and
from 56.6 weeks to 38.8 weeks for private law cases). However, it should be
noted that because of the small numbers at this tier, comparatively few long
cases can substantially affect the average time taken to dispose of cases.
Disposal Types
Table 5 shows the distribution of the different types of disposal made for
each year. Orders made accounted for 68% of all disposals in 2002/03 (71 %
in 2001/02). Nine percent resulted in an Order of No Order in 2002/03 as
compared with 8% in 2001/02 while 18% of the applications were
withdrawn (15% in 2001/02) and 5% were refused (as in 2001/02).
6,290 interim orders were made during 2001/02, a number which increased
by 50% to 9,444 in 2002/03. These were made up primarily of Contact,
Residence and Care Orders.
Applicants and Respondents
Figure 7 shows the proportions of applicant and respondent types involved
in disposed cases for the period. The mother was the applicant in 64% of
cases (father 29%, grandparents 0.5%). Health & Social Services Trusts
accounted for 2% of applicants, and others for 1%. The father was the
respondent in 50% of cases, the mother in 30% and grandparents and other
family accounted for 6%. Health & Social Services Trusts accounted for
13% of respondents while Education & Library Boards and others accounted
for 1% each.
page 50
Appendix 2: Statistics
Age of Children
Table 6 shows the distribution of children's ages. Just over one third of
children involved in the cases were within the 0-4 years old category
(Figure 8).
Annual Comparisons
To provide a broad picture of yearly trends since the commencement of the
Children Order, Figures 9.1, 9.2 and 9.3 illustrate the number of applications
lodged and disposed in each of the court tiers. Between 2001/02 and 2002/03
the number of applications lodged increased by 13% and there was also an
11% increase in the number of disposals.
Figure 10 presents the number of orders and disposals for 1997 to 2002/03.
Parental responsibility disposals increased by 40% between 1997 and
2002/03. Contact (Permission) increased by 31% between 1997 and
2001/02, but has decreased by 21% between 2001/02 and 2002/03. The
number of applications for Residence Orders disposed of also decreased by
15% between 1997 and 2002/03. However, the number of care applications
disposed of increased by 44% between 1997 and 2002/03.
Table 1
Wardship Actions
Wardship
Actions
1995 1996 1997 1998 1999 2000 00/01 01/02 02/03
Non 140
135
7
3
1
0
0
4
9
Emergency
Immediate 182
126
1
1
3
0
8
7
13
Provision
Jurisdiction
85
51
0
6
14
0
16
8
1
page 51
Appendix 2: Statistics
Table 2
Applications and Disposals
01/04/02 - 31/03/03
Applications
High County
Magistrates'
Total
Court
Court
Court
OCP
Matrimonial Care Centre
Other
FPC
Other
Public Law
98
0
54
0
726
17
895
Private Law
71
131
143
2
5,352
37
5,734
Total
169
131
197
2
6,078
54
6,629
Disposals
High County
Magistrates'
Total
Court
Court
Court
OCP
Matrimonial Care Centre
Other
FPC
Other
Public Law
176
0
92
0
595
10
873
Private Law
86
106
236
2
4,767
48
5,245
Total
262
106
328
2
5,362
58
6,118
page 52
Appendix 2: Statistics
Table 3
Transfer of Business (Reasons)
01/04/02 - 31/03/03
To
Convien-
Urgency Gravity
Complex- Consolid- Import-
Other
Total
Number of
ience
ity
ation
ance
Reasons
Cases[1]
Transferred
High Court
0
0
1
28
30
0
3
62
60
County Ct.
Belfast
0
1
1
44
14
2
8
70
65
Londonderry
0
0
0
1
1
0
0
2
2
Craigavon
0
0
0
4
0
0
0
4
4
Magistrates Ct.
Belfast
0
0
0
12
3
0
1
16
16
Londonderry
0
0
0
0
0
0
1
1
1
Ballymena
0
0
0
0
1
0
1
2
2
Omagh
0
0
0
0
0
0
0
0
0
Newry
0
0
0
0
0
0
0
0
0
Ards
0
0
0
0
0
0
0
0
0
Craigavon
0
0
0
0
0
0
1
1
1
[1] Cases may have more than one application
Table 4
Disposal Times
01/04/02 - 31/03/03
Lodged to final hearing times (in weeks) for cases entered in the designated
courts [1]
High Court
Care Centre
Family Proceedings Court
Total
Public Law
40.13
31.63
22.98
26.39
Private Law
47.67
38.84
21.59
23.13
[1] All cases include time taken at first court tier if transferred
page 53
Appendix 2: Statistics
Table 5
Orders and Disposals
01/04/02 - 31/03/03
Business Order
No
Refused
Withdrawn
Total
Interim
Made
Order
Order[1]
Parental 250
38
42
69
399
98
Responsibility
Contact: Permission
1.656
212
122
374
2,364 2,912
Contact: Refusal
41
10
11
7
69
52
Residence
1,176
128
44
285
1,633 1,360
Prohibited Steps
88
9
21
69
187
104
Specific Issues
84
15
18
39
156
20
Care
318
37
19
124
459
4,116
Supervision
36
13
4
12
65
162
Education Supervision
18
3
0
6
27
7
Child Assessment
0
0
0
0
0
0
Emergency 12
0
0
1
13
13
Protection
Extension of EPO
7
0
0
0
7
4
Appointment of
97
6
0
9
112
5
Guardian
Contribution &
14
0
1
10
25
2
Other Financial
Secure 17
5
0
7
29
75
Accommodation
Article 53 Contact
54
31
10
24
119
361
Family Assistance
11
0
0
0
11
5
Recovery
8
0
0
0
8
81
Non-molestation
6
2
2
1
11
42
Other Orders,
41
0
3
18
62
7
Applications
Occupation Articles
1
2
2
0
5
7
Article 56
2
0
0
0
2
10
Exclusion 0
1
0
1
2
1
Requirement
Total
3,937
512
299
1,017 5,765 9,444
[1] Interim Orders are taken from court sittings returns, application disposals are taken from
final disposal forms. The figures do not necessarily refer to the number of cases.
page 54
Appendix 2: Statistics
Table 6
Children Subject to Applications
Age and Gender of children involved[1] 1st Jan. 98 - 31st Mar. 03
Age Range (%)
Number of children in respect of
Sex
0-4
5-8
9-12
13-16
whom orders have been made
Male
36.3
28.2
21.9
13.6
2,052
Female
35.2
28.5
22.6
13.7
1,871
Total[2]
35.8
28.4
22.2
13.6
4,071
[1] Includes children not subject to an application disposed of.
[2] Includes children whose gender is unrecorded
Table 7
Business Volume - Care Centres and Related Courts
Applications - 01/04/02 - 31/03/03
Public
Private
Total
Belfast
Care Centre
20
58
78
County Courts
0
0
0
Family Proceedings Courts
416
3,091
3,507
Magistrates' Court
0
1
1
Total
436
3,150
3,586
Londonderry
Care Centre
23
59
82
County Courts
0
0
0
Family Proceedings Courts
133
890
1,023
Magistrates' Court
69
33
39
Total
162
982
1,144
Craigavon
Care Centre
11
26
37
County Courts
0
2
2
Family Proceedings Courts
177
1,371
1,548
Magistrates' Court
11
3
14
Total
199
1,402
1,601
page 55
Appendix 2: Statistics
Table 8
Business Volume - Care Centres and Related Courts
Disposals - 01/04/02 - 31/03/03
Public
Private
Total
Belfast
Care Centre
57
120
177
County Courts
0
0
0
Family Proceedings Courts
312
2,609
2,921
Magistrates' Court
0
1
1
Total
369
2,730
3,099
Londonderry
Care Centre
22
83
105
County Courts
0
0
0
Family Proceedings Courts
118
976
1.094
Magistrates' Court
4
44
48
Total
144
1,103
1,247
Craigavon
Care Centre
13
33
46
County Courts
0
2
2
Family Proceedings Courts
165
1,182
1,347
Magistrates' Court
6
3
9
Total
184
1,220
1,404
page 56
Appendix 2: Statistics
Figure 1
Wardship Actions (Jan 1997/Mar 2003)
200
180
160
140
Actions
120
ardship 100
W
80
60
Number of
40
20
0
1995
1996
1997
1998
1999
2000/01 2001/02 2002/03
Year
Non Emergency
Immediate Provision
Jurisdiction
Figure 2
Applications Lodged and Disposed (Jan 1997/Mar 2003)
8000
7000
6000
5000
Applications
4000
3000
Number of
2000
1000
0
1997
1998
1999
2000/01
2001/02
2002/03
Year
Lodged
Disposed
page 57
Appendix 2: Statistics
Figure 3 (a)
Applications Lodged (2002/2003)
Public Law
14%
Public Law
Private Law
Private Law
86%
Figure 3 (b)
Applications Disposed (2002/2003)
Public Law
14%
Public Law
Private Law
Private Law
86%
page 58
Appendix 2: Statistics
Figure 4
Children Order Public LawApplications and Disposed
(Jan 1997/Mar 2003)
600
500
Actions 400
ardship 300
W
200
Number of 100
0
2002/03 Disposed
2002/03 Lodged
2001/02 Disposed
2001/02 Lodged
2000/01 Disposed
2000/01 Lodged
1999 Disposed
1999 Lodged
1998 Disposed
1998 Lodged
1997 Disposed
1997 Lodged
Supervision
Care
Emergency Protection
Figure 5
Disposal Time in Weeks (Apr 2002/Mar 2003)
60
50
40
ime (weeks)
T
30
20
verage Disposal
A
10
0
All Court
Family Proceedings
Care
High
Types
Court
Centre
Court
Court Type
2002/03 Private
2002/03 Public
page 59
Appendix 2: Statistics
Figure 6 (a)
Public Law Orders Made (2002/2003)
Other Orders, Applications
7%
Recovery
1.3%
Article 53 Contact
14.3%
Secure Accommodation
3.7%
Emergency Protection
2%
Child Assessment
0%
Education Supervision
3.5%
Supervision
Care
8.3%
60%
Figure 6 (b)
Private Law Orders Made (2002/2003)
Specific Issues
Other Orders, Applications
2.6%
0%
Prohibited Steps
Appointment of Guardian
2.5%
2.7%
Parental Responsibility
7.5%
Residence
33.8%
Contact: Premission
48.4%
Contact: Refusal
1.3%
page 60
Appendix 2: Statistics
Figure 7 (a)
Applicants (Apr 2002/Mar 2003)
HSS Trusts
CSA
2.1%
0%
Other Family
Ed & Library Boards
4.1%
0%
Other
Grandparents
0%
0.5%
Father
29.2%
Mother
64.1%
Figure 7 (b)
Respondents (Apr 2002/Mar 2003)
CSA
0.1%
HSS Trusts
Ed & Library Boards
12.7%
0.6%
Other
Other Family
1%
1.2%
Mother
Grandparents
29.7%
4.4%
Father
50.3%
page 61
Appendix 2: Statistics
Figure 8
Age and Gender of Children Involved
800
700
600
500
400
300
Number of Children 200
100
0
0 to 4
5 to 8
9 to 12
13 to 16
Age (Years)
Male
Female
Figure 9.1
Applications Entered & Disposed of in Family
Proceedings Courts
7000
6000
5000
4000
Applications
3000
2000
Number of
1000
0
1997
1998
1999
2000/01
2001/02
2002/03
Year
Entered
Disposed
page 62
Appendix 2: Statistics
Figure 9.2
Applications Entered & Disposed of in Family Care Centre
350
300
250
200
Applications
150
Number of 100
50
0
1997
1998
1999
2000/01
2001/02
2002/03
Year
Entered
Disposed
Figure 9.3
Applications Entered & Disposed of in the High Court
500
450
400
350
300
Applications 250
200
Number of 150
100
50
0
1997
1998
1999
2000/01
2001/02
2002/03
Year
Entered
Disposed
page 63
Appendix 2: Statistics
Figure 10
Orders & Disposals
3500
3000
2500
2000
Applications
1500
Number of 1000
500
0
1997
1998
1999
2000/01
2001/02
2002/03
Year
Parental Responsibility
Contact: Premission
Residence
Care
page 64
Notes
page 65
Notes
page 66