The Children Order
Advisory Committee
Fifth 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 www.courtsni.gov.uk
October 2004
Ref: 179/2004
The Children
Order Advisory
Committee
Fifth Report
September 2004
CONTENTS
Foreword
Chapter 1
The Children Order, The Courts and The Committee ....................1
Chapter 2
Work of Sub-Committees during 2003/04
Adoption .......................................................................................................5
Best Practice .................................................................................................5
Court Welfare Officers .................................................................................7
Delay .............................................................................................................9
Domestic Violence ......................................................................................10
Mediation ....................................................................................................13
Multi-disciplinary Literature ......................................................................14
Rule 21........................................................................................................14
Secure Accommodation ..............................................................................16
Separate Representation..............................................................................21
Chapter 3
Work of Family Court Business Committees during 2003/04
Belfast .........................................................................................................23
Londonderry ...............................................................................................24
Craigavon ....................................................................................................25
Chapter 4
Issues Considered/Addressed by the Committee during 2003/04
Lateral Transfer...........................................................................................29
Concurrent Proceedings..............................................................................30
Child Protection and Confidentiality..........................................................33
Legal Aid as a Delaying Element ...............................................................34
Chapter 5
Other Issues of Concern to the Committee
Multi-disciplinary Training.........................................................................37
NIGALA Waiting List ................................................................................38
The Protocol for Judicial Management in Public Law
Children Act Cases in England & Wales....................................................40
Additional Family Care Centres:
Dungannon Family Care Centre .................................................................41
Ministerial Meeting with Lord Filkin.........................................................42
Chapter 6
The Future...................................................................................................45
Appendix 1
The Membership of the Committee
(1st April 2003 to 31st March 2004) ..........................................................47
Appendix 2
Statistics ......................................................................................................49
FOREWORD
The Fifth Report of the Children Order Advisory Committee (COAC) covers
the period 1 April 2003 to 31 March 2004. This year has seen the culmination
of two very substantial pieces of work that have commanded the attention of
the Committee for over two years. In the first place, we have now published
COAC Best Practice Guidance. This purports to provide a definitive
statement of the most up-to-date and appropriate practice on all major
aspects of Children Order proceedings and is now regularly in use
throughout the court system. In addition Committee members have engaged
in a series of seminars to proselytise its use and to generate an all-inclusive
interest in its future refinement. It remains to be seen what affect the advent
of these guidelines will have on overall delay in the system but the reaction
so far provides cause for optimism.
Our second major enterprise has been the publication and distribution of the
report on delay. This report is also featured on the departmental web sites at
www.courtsni.gov.uk and
www.dhsspsni.gov.uk. We are now in the period
of consultation and next year’s report should be in a position to set out the
responses to that paper. The platform has now been set for some constructive
input throughout the childcare system on a multi-disciplinary basis dealing
with specific problems of delay that have surfaced.
This year has also seen the Committee tackling head on a number of specific
old chestnuts which have in the past proved intractable to movement and
which arguably are causes of delay within the system. Hence our sub-
committees are in the process of investigating the need for court welfare
officers, lateral transfers within the court system, the provision of additional
contact centres in Northern Ireland so that we can at least approach parity
with England & Wales, practical problems of court hearings where secure
accommodation issues arise in order to better and efficiently use court time,
and contact and domestic violence as issues which are recurrent themes in all
too many cases.
Our standing committees on multi-disciplinary literature, adoption, best
practice and separate representation are all still in being, ready to respond to
developments that occur in these fields. This Committee therefore has not
only been proactive in examining these problems, but by virtue of the
standing committees we have, we are in a position to swiftly respond to
developments in the areas outlined.
We continue to have the benefit of addresses on topics of concern to the
Committee including a regular report from the Northern Ireland Guardian ad
Litem Agency (NIGALA) as to the delays engendered by lack of funds and
personnel within the Agency, the Legal Aid Department (LAD) as a possible
cause of delay and from the Ulster Community and Hospitals Trust a
presentation concerning Lakewood and the use of television live-links.
The Committee at each meeting has regularly considered the work of the
Family Court Business Committees. On each occasion we receive a report
from the three Family Care Centres and a detailed discussion is given over to
their work. It has been gratifying to observe how the work of these business
committees is parallel to and in many respects giving the lead to this
Committee in considering appropriate practices, procedures and progress of
cases.
Once again we have lost some distinguished servants to this Committee.
Robert Alcorn, Leslie Frew, Eric Strain and Eileen Magee have all been
obliged to step down from the Committee due to other commitments. I am
indebted to the time, energy and contribution that each of them has given.
Their successors are equally welcome and, relying on past experience, I am
confident that their arrival will engender further vigour into the tasks to be
carried out.
The nature of our work is time consuming and exacting. We now meet more
often than ever before, and even a cursory glance at our agenda reveals the
growing test of the subjects with which we deal. This work could not be
carried out without the assistance of the Northern Ireland Court Service and
the Department of Health, Social Services and Public Safety (DHSSPS) to
the secretariat of the Committee throughout this period. That secretariat has
played an invaluable role in our work.
The work of this Committee has therefore been extensive. We are anxious
that the multi-disciplinary approach that forms our backbone should be
reflected in a vigorous and constructive approach to the tasks that confront
us. Each year presents new challenges and fresh issues. This report is an
outline of our response.
The Honourable Mr Justice Gillen
Chairman of the Children Order Advisory Committee
The Children Order, The Courts and The
Committee
1
The Order
The Children (Northern Ireland) Order 1995 came into operation on 4
November 1996. Widely recognised as the most comprehensive legislation
relating to children ever introduced in Northern Ireland, it enshrines a
number of key principles:
• The child’s welfare shall be the paramount consideration in court
proceedings,
• 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,
• Where possible, children should be brought up and cared for with their
own families,
• Children should be safe and protected by effective intervention, but such
intervention should be open to challenge,
• Children should be kept informed about what happens to them and should
ordinarily participate (subject to age and understanding) when decisions
are made about their future; and
• Parents continue to have parental responsibility even when their children
are no longer living with them. They should be kept informed about their
child and participate when decisions are made about their child’s future.
Court proceedings under the Children (Northern Ireland) Order 1995 are
known as “family proceedings”. The 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; and
• The Family Homes and Domestic Violence (Northern Ireland) Order
1998.
The main court orders available under the Children (Northern Ireland) Order
1995 are set out below under the broad headings of Private and Public Law.
Orders concerning financial matters are not included:
page 1
The Children Order, The Courts and The Committee
PRIVATE LAW
1 • Parental Responsibility Orders (Article 7)
• Residence, Contact, Prohibited Steps and Specific Issues Orders
(Article 8)
PUBLIC LAW
• Care and Supervision Orders (Article 50)
• Child Assessment Orders (Article 62)
• Education Supervision Orders (Article 55)
• Emergency Protection Orders and Extension of Emergency
Protection Orders (Article 63)
• Parental Contact with Children in Care Orders (Article 53)
• Secure Accommodation Orders (Article 44)
In any family proceedings in which a question with respect to the welfare of
a child arises, the court may make an Article 8 order. This can occur either
where a person entitled to do so makes an application, or where the court
gives that person leave, or if the court itself considers that such an order is
necessary. There are four types of Article 8 orders. These may determine with
whom a child is to
reside or have
contact, may
prohibit particular steps
being taken concerning the child without the consent of the court or any
other 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 all 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.
The Courts
The Children (Northern Ireland) Order 1995 confers concurrent jurisdiction
on the High Court, 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.
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The Children Order, The Courts and The Committee
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
1
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 and that
proceedings regarding the same child are heard in the same 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
when specific criteria have been established. These criteria can include
where the matter is exceptionally grave, complex or important, or to
consolidate with other family proceedings.
The general rule is that all Public Law proceedings are to be commenced in
the family proceedings court. This is also the case with freestanding Private
Law applications, i.e. those applications made when there are no other
ongoing family proceedings. As regards connected Private Law applications,
e.g. where there are divorce proceedings pending in 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 (Northern Ireland) Order
1995 to children and their families, COAC 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.
COAC 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 children, both in the
courts and in other spheres. The membership of the Committee during the
currency of the report is set out at Appendix 1.
page 3
page 4
Work of Sub-Committees during 2003/04
2
ADOPTION SUB-COMMITTEE
As noted in the previous annual report the adoption sub-committee was
suspended pending a review of adoption legislation in Northern Ireland. In
its report entitled “Adopting Best Care” the Social Services Inspectorate
(SSI) identified the need for a radical change to adoption legislation in
Northern Ireland to achieve alignment of adoption law with the requirements
of the Children (Northern Ireland) Order 1995.
The report noted that adoption services in Northern Ireland were being
negatively impacted by the absence of a departmental policy or strategic
framework. The report identified a lack of consistent principles, standards
and expectations in relation to adoption services. Trusts in their role as
adoption agencies were developing their own responses to adoption issues.
The report concluded that a regional strategy would offer a more effective
and efficient response to such core issues.
DHSSPS has now commissioned the Children’s Social Services Strategy.
Adoption was one of the central issues considered in the production of the
strategy and it is envisaged that a dedicated regional adoption service will
follow on the implementation of this programme.
COAC will address the impact of the proposed changes on the operation of
the Children (Northern Ireland) Order 1995 through its adoption sub-
committee when the strategy is circulated for consultation.
BEST PRACTICE SUB-COMMITTEE
COAC has drawn up a Best Practice Guidance for use throughout the family
justice system. These guidelines do not carry the weight of a legal
pronouncement but they do enjoy the imprimatur of the wide-ranging
membership of the Committee, having been drawn up after much travail in
consultation with representatives from the judiciary, the Bar, the Law
Society, the Trusts and NIGALA. The guidelines are not prescriptive rules
but rather are to be seen as valuable guidelines that may require to be tailored
to individual circumstances and particular cases. They purport to provide a
definitive statement of good practice on major aspects of proceedings under
the Children (Northern Ireland) Order 1995 and the Hague Convention.
Since their introduction in January 2004, they have become a much-visited
friend throughout the court system. They are referred to virtually every day
in direction hearings and are frequently relied on in skeleton arguments
page 5
Work of Sub-Committees during 2003/04
presented in court. They appear to be becoming ingrained in the legal lexicon
and are clearly part of the family law fabric. It is the aim that every
practitioner and family law professional should not only have a copy of them
2 but should be making frequent reference to the contents before applications
are made to court to ensure compliance wherever possible.
Their aim is to provide a salutary corrective to certain unacceptable practices
that have grown up and to promote those that have achieved proven success.
A new start should not be burdened with a sombre legacy. Accordingly we
have tried to imaginatively combine principle and pragmatism avoiding
merely restating the questions that have hitherto bedevilled us. We must be
conscious of the danger of being trapped by things that once worked but are
now relics of the past. These guidelines are prophylactic in nature, intended
to prevent problems arising. The focus is on early identification of issues and
the principle of getting it right from the beginning. By defining issues at an
early stage, it means that no one need continue to devote resources to those
issues that are not central to the case. If lawyers and the judge can identify
the key management issues at an early stage with appropriate early case
management directions, then thereafter the lamp will be lit on the path to be
followed. Hopefully, the need to come back to court for constant direction is
eliminated and delay and wasteful expense reduced.
The guidelines are essentially to be regarded like the European Convention
on Human Rights (ECHR) as a living instrument which should be revised
and revisited in light of experience probably on an annual basis or at least on
a two yearly basis. Accordingly the Committee has set up a standing
committee that will continue to monitor developments and receive
complaints, advices, suggestions and admonitions as to the future. Already
that committee has received informed and helpful proposals for refinement
and addition to the guidelines. Family law is almost uniquely a multi-
disciplinary area of law and accordingly input to these guidelines is now
being afforded on the departmental websites1 to all engaged in the childcare
system and contributions are invited right across the family law board.
These guidelines had been issued virtually at the same time that the
Committee issued a report into the causes of delay in the system. The causes
for delay that have surfaced in the course of that report have been to some
extent broadly addressed in general terms in the Best Practice Guidance and
these guidelines are therefore part of a general development of the family law
system. There have been several seminars held in Belfast and Londonderry
to proselytise the whole concept of these guidelines to the profession in
general. It is proposed that these developments will continue. Already there
is strong demand for copies of the guidelines and we have had to increase the
volume originally printed.
1www.courtsni.gov.uk and www.dhsspsni.gov.uk
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Work of Sub-Committees during 2003/04
COURT WELFARE OFFICERS SUB-
COMMITTEE
2
The sub-committee on court welfare officers was established at the request
of COAC at its June 2003 meeting. It had its inaugural meeting in October
2003 and has met on four occasions between then and the end of April 2004.
The need for the establishment of the sub-committee arose from the Family
Court Business Committees where the varying approaches, which different
Trusts had employed to provide Article 4 reports to the courts, had been
noted. The Committee, therefore, decided to establish a sub-committee to
compile a report on the issue.
The terms of reference are:
• To establish the legal basis for courts requesting court welfare reports in
Private Law cases, highlighting where appropriate any operational
difficulties experienced by the courts and Trusts,
• To establish the current level of demand for court welfare reports in
Private Law proceedings and the timescale for the provision of such
reports, noting any variation across Northern Ireland. Also to consider the
historical and legislative context of the provision in Private Law cases,
• To consider existing arrangements within Trusts for providing courts with
reports in Private Law proceedings and to consider the structure of
information provided to the courts and the current and future role of court
welfare officers; and
• To report to the Committee on its findings, including making
recommendations on how to structure services efficiently to ensure a
timely response to courts’ requests for such reports while taking into
account the priorities, the staffing and financial resources available within
Trusts.
The Committee approved the terms of reference and the proposed work plan
of the sub-committee at its November 2003 meeting.
The sub-committee has undertaken the following work to date:
• Acquisition from the Northern Ireland Court Service of information on
the number of Private Law cases coming before the courts over the past
three years,
• Meetings with court welfare officers to develop a survey tool to collate
information on the number of referrals and the nature of their input to
these over a three month period,
• Meetings with the judiciary to ascertain their expectations as to the role
of a court welfare officer; and
• Meetings with Trusts to ascertain how they were currently providing a
service to courts in respect of Private Law cases, how their arrangements
met both the needs of the courts and the Trust, and to consider future
structures for delivering this service to the courts.
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Work of Sub-Committees during 2003/04
Initial findings indicate:
• There is a wide variation in the way Trusts have made arrangements to
2 provide Article 4 reports to the courts, resulting in a lack of consistency
• A number of Trusts have to cover more than one court area, this means
that collaborative, and at times consortia arrangements have been
developed between Trusts to share a court welfare officer,
• Where Trusts have a court welfare officer in place, this has reduced the
number of requests for full reports from the courts and has also reduced
the level of demand for Article 4 reports received by family and childcare
teams,
• Where a court welfare officer is in place, good working relationships have
been reported and a better understanding has developed regarding the
respective roles and expectations of the courts and the Trusts,
• Where a court welfare officer is in place, the court tends to be more
specific about what work it wishes carried out in a particular case,
• Court welfare officers’ role in some Trusts’ areas is developing to include
membership of Domestic Violence Forums, or providing training in anger
management courses; Trusts are keen to enhance their role to ensure the
role continues to attract and retain high quality staff,
• Court welfare officers generally ensure that reports are available to the
courts in a timely fashion. They also see their role as ascertaining the
wishes and feelings of children,
• Trusts and the courts are reporting general satisfaction with court welfare
officer arrangements,
• Trusts are in the main keen to continue to manage court welfare officer
services but note that existing arrangements are generally funded by the
Trust diverting monies from its family and childcare programme of care.
This means that the development of a court welfare service has occurred
as funding has permitted rather than in a strategic manner,
• Resident magistrates use court welfare officers differently and have
different expectations of them. For example, some wish the court welfare
officer to be present in court during hearings, while others request their
presence in court for particular cases only. There is, therefore, a lack of
consistency about the court welfare officer’s role; and
• There are issues relating to the availability of facilities within courts for
court welfare officers to enable them to undertake the interview of parents
to resolve disputes.
The survey of court welfare officers’ work commenced in March 2004 and it
is intended that this time-limited information will provide a more
comprehensive assessment of their work which can then complement the
statistics provided by the Northern Ireland Court Service.
Initial findings suggest that both the courts and Trusts are committed to
developing the court welfare officer’s role with a view to meeting in an
effective way the needs of children and families in Private Law matters. It is
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Work of Sub-Committees during 2003/04
anticipated that the final report of the sub-committee will be available for
presentation to the Committee in Autumn 2004.
DELAY SUB-COMMITTEE
2
COAC has now completed its study into the investigation of and
recommendations for delay in the court process in cases heard pursuant to
the Children (Northern Ireland) Order 1995. In essence this has been a
consultation paper that hopefully will promote discussion on and provoke
reaction to the topic of delay leading to more detailed consideration of the
issues involved. It is part of the overall approach feeding into the review of
best practice which already has been carried out and which is now regularly
in operation.
The terms of reference of the delay sub-committee were to identify possible
causes for delay, to consider if those causes were purposeful and to assess the
steps necessary to reduce delay in the child’s best interests in the future. The
advent of the Human Rights Act 1998 has served to incorporate the majority
of ECHR into the domestic law. These underline the concept of a right to a
hearing within a reasonable time and thus underline the need to prevent
procedural delays. We have recognised that delay can have a traumatic
impact on the welfare of children, engendering alarm and trepidation causing
long-term effects. We consider it imperative therefore that the search for
procedural improvement, coupled with creative initiatives to ameliorate the
problem of delay, is an ongoing process in which we must play an important
part. Needless to say we are conscious of the need to address the increasing
time now spent on disposing of cases throughout the entire court system
whilst at the same time recognising that delay is often purposeful and an
integral part of case resolution.
We have now published our report and hard copies have been distributed
widely throughout the system. We have also set up a website and it is
gratifying to note that a very considerable number of visits to that website
have already been initiated. The hard copy has been attractively presented;
reaction to date has been both welcome and favourable.
We have established a consultation period for this document fixed at the end
of May 2004. COAC regards the consultation period as an important part of
the process allowing criticisms and suggestions to surface arising out of the
issues we have raised. Following our multi-disciplinary ethos we are seeking
this comment from as wide a range of participants in the family justice
system as possible. To date it has been gratifying to note that criticism of our
conclusions and proposals has been muted but perhaps it is early days.
Thereafter, it is the intention of the sub-committee to consider any responses
and if necessary supplement our existing report with the benefit of that
consultation. This sub-committee is absolutely certain that the wider we
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Work of Sub-Committees during 2003/04
consult, the more beneficial we will be to the process as a whole. It is hoped
that this report will be the starting pistol for a well-informed broadly based
assault on the whole issue of delay throughout the court process in Northern
2 Ireland.
DOMESTIC VIOLENCE SUB-COMMITTEE
This reformed sub-committee has met five times during the course of the last
year to consider issues relating to the impact of domestic violence upon
children and young people. The sub-committee recognises the importance of
interagency co-operation with groups and organisations involved, indeed
some exclusively, with domestic violence issues, inter alia:
• The Northern Ireland Regional Forum on Domestic Violence and its
three subgroups – Domestic Violence and Law, Information and
Children’s Issues,
• Raising The Standards (Intergovernmental Departments),
• Victims and Vulnerable and Intimidated Witnesses Steering Group,
• Special Measures Group,
• Women’s Aid,
• Barnardo’s,
• Police Service for Northern Ireland (PSNI),
• Probation Board for NI (PBNI); and
• Public Prosecution Services (PPS).
Issues that the sub-committee has discussed include:
• Barnardo’s ‘Domestic Violence Risk Assessment Model’ pilot scheme,
• PBNI: Men Overcoming Domestic Violence,
• Protocol for applications for exclusion requirements in interim
care orders,
• Court direction for confidential statements,
• Multi-disciplinary training needs,
• Effectiveness of Re L Hearings,
• Impact upon children who witness domestic violence; and
• Domestic Violence, Crime and Victims Bill.
The sub-committee has also considered:
• Tackling Violence at Home (October 2003),
• Summary of Responses to that Consultation Paper (March 2004),
• Review of The Family Homes and Domestic Violence (NI) Order 1998
(October 2003),
• PSNI Domestic Violence Strategy (November 2003),
• COAC Best Practice Guidance - case management and domestic violence;
and
• Co-operating to Safeguard Children (May 2003).
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Work of Sub-Committees during 2003/04
Article 57A Occupation Order: Protocol for
applications for exclusion requirements in interim
care orders
2
PSNI note the court’s expectation for police to serve non-molestation orders
and occupation orders including Article 57A orders on alleged perpetrators,
although the Family Homes and Domestic Violence (NI) Order 1998 did not
stipulate this.
PSNI do not always have access to the applicant’s statement of concern. It
would be helpful if the applicant would consent to the police receiving a copy
of this document at the time of service. This would inform PSNI of any
security issues, such as the presence of firearms in the home and enable the
police to make safe arrangements for staff during service. Disclosure of this
document to them would help inform the police of possible crimes and aid
the investigation process.
If the applicant refuses to disclose this statement to the police, then a court
direction for disclosure to the police may alleviate Data Protection Act
concerns but may raise human rights and confidentiality issues.
Re L Hearings
Sub-committee members raised concerns that Re L Hearings are not always
taking place in domestic violence cases. Women’s Aid felt that, if this is so,
victims will be left feeling very vulnerable and arguably put children at a
greater risk. Family Court Business Committees and court user groups must
monitor the use and effectiveness of Re L Hearings in Private Law
proceedings and early determination of threshold criteria facts in Public Law
cases. Schedules of Incidents of alleged domestic violence should be
directed in all domestic violence cases so that disputed facts can be
determined by the court and a finding made.
Review of the Family Homes and Domestic Violence
(NI) Order 1998
The sub-committee would welcome reform to enable Trusts to make ‘stand
alone’ occupation order applications, other than by virtue of Article 57A and
Article 63A of the Children (NI) Order 1995. In addition, Trusts would
welcome the introduction of occupation orders in full care orders, interim
and full supervision orders.
The sub-committee would welcome information on the effectiveness of
occupation orders in protecting children from harm, especially those
associated with domestic violence. Comment as to the effectiveness of police
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Work of Sub-Committees during 2003/04
arrest and conviction for breach of orders, particularly if the alleged victim
will not make a statement to the police, would also be welcomed.
2 The sub-committee also believes that the service of orders requires
clarification.
Tackling Violence at Home
This initiative was welcomed by the sub-committee who noted there is no
legislative proposal to introduce a new offence of ‘domestic abuse’ into
Northern Ireland at this time. Currently the range of criminal offences
includes:
• Common assault, assault with intent,
• Harassment, and putting people in fear of violence; and
• Breach of non-molestation orders and occupation orders.
The response to the consultation paper is impressive and encapsulates many
of the issues relating to domestic violence, such as:
• The definition of domestic violence,
• Prevention measures including raising awareness,
• Improving the prosecution of domestic violence cases ensuring that
sentences reflect the crime,
• Protection for vulnerable witnesses; and
• Safe arrangements for child contact in domestic violence cases.
It is noted that the responses will be considered in greater detail at a series
of workshops with voluntary and statutory agencies. The Office of Law
Reform (OLR) will also monitor the proposed strategy developed from the
Tackling Violence at Home consultation.
PSNI Domestic Violence Strategy
The sub-committee welcomed this initiative. The changing role of domestic
violence officers – away from victim support, towards an investigative role
did cause concern, though initiatives to support victims and vulnerable
witnesses are commended.
Information Sharing
The sub-committee was anxious to ensure that child protection was not
inhibited through wariness or lack of understanding in relation to the Data
Protection Act 1998 and the Human Rights Act 1998 and will welcome the
PSNI’s response to disclosures following the
Huntley prosecution. It is noted
that the Assistant Information Commissioner has agreed to attend a
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Work of Sub-Committees during 2003/04
forthcoming meeting to address child protection information sharing and
confidentiality issues. Guidance issued as a result of this meeting will be
published in the next Annual Report.
2
Multi-disciplinary training needs
There is a high demand for training for all professional disciplines involved
in domestic violence. Multi-disciplinary training may be useful. The sub-
committee is to explore what training initiatives have been arranged on
domestic violence issues and this will be considered at forthcoming
meetings.
The sub-committee will also be monitoring developments of the Domestic
Violence, Crime and Victims Bill as it progresses through Parliament.
The sub-committee has had a busy year and will continue to monitor regional
multi-disciplinary initiatives in respect of domestic violence.
MEDIATION SUB-COMMITTEE
As previously reported a pilot mediation project is now in place in two family
proceedings courts with Relate NI as the service provider and sponsored by
the Northern Ireland Court Service and a number of the HSS Trusts. This
project had originally an implementation period of eighteen months but we
are given to understand (although we have not been officially informed) that
an extension of six months has now been agreed between the relevant parties
to it.
During our deliberations we have considered the Recommendation of the
Committee of Ministers to Member States on Family Mediation of and
adopted on the 21 January 1998 as well as looking at the use of mediation
processes in other jurisdictions. At our last meeting a presentation on behalf
of Family Mediation (an independent service for separating and divorcing
families) was made to members. This was both interesting and informative.
Whilst mediation in the form used under the pilot project has an undoubted
place within the resolution of disputes concerning children we also recognise
that the pre-court mediation scheme presently in place in the Republic of
Ireland and some other jurisdictions has considerable merit.
It is the view of the sub-committee that there is nothing we can do at this
stage to progress this matter further as the pilot scheme will not be
completed until early in 2005 when an independent evaluation of it will be
produced by OLR.
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Work of Sub-Committees during 2003/04
MULTI-DISCIPLINARY LITERATURE
SUB-COMMITTEE
2 At the inaugural meeting of the sub-committee it was agreed that it would
meet on an ad-hoc basis as dictated by the volume of academic literature and
other relevant publications to be considered by the various disciplines
represented i.e. the judiciary and legal profession, health and social services,
medicine and social work.
The first list of articles was complied on schedule and circulated to
members. Since November 2003 a portal has been operational on the
Northern Ireland Court Service website at
www.courtsni.gov.uk to facilitate
access to a selection of summaries of articles, books and literature within the
variety of disciplines in family justice and childcare and to raise awareness
of this literature on an interdisciplinary basis. The portal will be updated
regularly in the form of a newsletter containing the titles and summaries of
articles and literature submitted by the members of the sub-committee.
A review is currently being undertaken as to the way in which material is
presented on the portal. This is to encourage visitors to the site to avail of the
free subscription facility whereby when articles are regularly added to or
amended on it, an email will automatically be sent to registered subscribers
to alert them to the addition of the new material. To use this website
subscription service, the link “Login/Register” on the Court Service Home
Page should be followed in the first instance to “Create a New Account” and
thereafter through the various links to the selection of “Subscription
Services” where currently “Family Law & Childcare Literature” should
be chosen.
Since the portal was established there have been some 1,895 “hits” or visits
to the site, which is accessible via the website, following the links to
“Publications” and “Family Law & Childcare Literature”.
RULE 21 SUB-COMMITTEE
A sub-committee, whose membership included resident magistrates,
academics and solicitors was set up with the specific task of examining Rule
21 of the Magistrates Courts (Children (Northern Ireland) Order 1995) Rules
(Northern Ireland) 1996 and to suggest amendments to the current wording.
The Rule, broadly, deals with the hearing of a case in the family proceedings
courts in Northern Ireland and with, pertinently, the making of decisions in
such cases, the recording in writing of such decisions and any findings of
fact, and the ultimate dissemination of such decisions. The principal points
of contention, to our understanding, related mainly to the requirement to give
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Work of Sub-Committees during 2003/04
written reasons in all cases. The main reasons advanced as to why the Rule
may need to be changed with regard to written reasons and findings of fact
were:
2
• That parties and children affected by proceedings must always be made
aware, as clearly and as promptly as possible, of the reasons for any
decision of the court; and
• On appeal, it would be important that the appellate court be made aware
of the findings of fact and reasons for the decision of the lower court. It
would also enable appeals to be handled consistently across the court tiers
having the beneficial effect of speeding up the process and ultimately
resulting in less delay for the children involved.
After a wide-ranging discussion, it was concluded that:
• Article 6 (ECHR) considerations make it important that the parties – and
children – are fully and clearly informed of the factual basis for decisions
made in their cases and they should be able to have access to fully
reasoned decisions; and
• As the legislation in relation to appeals stands at present from family
proceedings courts to family care centres - these are dealt with by way of
de novo hearings. There is therefore no discernable basis for this to be
used as a justification for the recording of facts or of reasons in the family
proceedings courts.
After due consideration the following re-draft of Rule 21 (with suggested
amendments in bold type) was proposed:
‘Hearing
21
(1)
Before the hearing the resident magistrate and any members of
the
juvenile court panel who will be dealing with the case shall
read any documents, which have been filed under Rule 18.
(2)
Unless the court otherwise directs at the hearing of, or directions
appointment in, relevant proceedings the parties and the
Guardian ad Litem shall adduce their evidence in the following
order –
(a)
the applicant,
(b)
any party with parental responsibility for the child,
(c)
other respondents,
(d)
the Guardian ad Litem,
(e)
the child if he is a party to the proceedings and there is no
Guardian ad Litem.
(3)
After the final hearing of relevant proceedings, the court shall
make its decision as soon as practicable.
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Work of Sub-Committees during 2003/04
(4)
Before the court makes an order or refuses an application
after
a contested hearing, whether interim or final, the resident
magistrate shall record –
2 (a) the names of any members of the
juvenilepanel who heard
the case with him;
(b)
the reasons for the court’s decision and any findings of
fact.
Such record shall, at the choice of the presiding
resident magistrate, be made either in writing or orally
through a sound-recording device.
(5)
When making an order or when refusing an application the
resident magistrate shall –
(a)
where the court has made a finding of fact state such
finding and complete Form C19; and –
(b)
state the reasons for the court’s decision.
(6)
After the court announces its decision, the clerk of petty sessions
shall, subject to Rule 5 (2) (b), as soon as practicable serve a
copy of the order in the prescribed form in Schedule 1 to these
rules on the parties to the proceedings and or any person with
whom the child is living
and shall, upon request, furnish to the
parties and their legal advisors a transcription of the reasons
for the court’s decision and any findings of fact.’
It was also felt, as a consequence of this proposed re-drafting of the Rule:
• That if sound-recording devices were introduced for the purpose of
recording these matters as an alternative to written decisions, it will be
necessary to train court clerks and magistrates in their use; and
• Consideration will have to be given to a study of the effect on court
clerks’ and transcript services in transcribing such factual bases and
reasons for decisions where these are requested.
SECURE ACCOMMODATION SUB-COMMITTEE
Live Link Facility
During the last 12 months the sub-committee has explored the viability of a
television live link facility between the Secure Unit at Lakewood and the
family courts, primarily the family proceedings courts. This would enable a
child whose liberty is restricted pursuant to Article 44 of the Children (NI)
Order 1995 to participate in court appearances via live link, from the safety
of the Secure Unit, thus alleviating the concerns regarding safe
transportation of children placed in secure accommodation to and from
court. It must be stressed that the child’s fundamental right to be in
attendance at court in person, as enshrined in the Children (NI) Order 1995
and Article 6 of the European Convention of Human Rights is always
presumed to be the preferred option. Strong grounds must be presented to the
court to seek its permission to use live link as a substitute for the child’s
page 16
Work of Sub-Committees during 2003/04
actual attendance at court. The sub-committee’s task has therefore
been twofold:
2
• To consider the rights of the child, and ensure there is a robust procedure
in place to scrutinise any application for the use of live link as a substitute
for the preferred option – the child’s actual attendance at court; and
• To explore how best to provide a live link facility.
The sub-committee completed a study during 2002/03 and concluded that
legislative change will be required in order to introduce live link procedures.
A number of organisations were written to, to elicit their views in regard to
the use of live link as an alternative to the child attending court. The
responses raised a number of issues including:
• When is it in a child’s
best interests for live link to be used rather than the
child’s attendance at court. This is particularly pertinent when the child
expresses a wish to attend at court,
• Who carries out the
risk assessment in relation to absconding/self harm
during transportation,
• What will be the procedure to enable the court to scrutinise this risk
assessment and to make a decision regarding the child’s attendance or use
of live link,
• If live link is used, should the Guardian ad Litem and the child’s solicitor
be with the child or in court?
The responses and issues relating to a live link facility, including a
protocol
for the procedure, were discussed at a full COAC meeting in September
2003, and at subsequent sub-committee meetings. The following issues were
identified:
• The child has a right to attend court in person. The need for further
consultation on this fundamental issue was recognised,
• Cost – The NI Court Service already has live link facilities for remand
hearings in youth and magistrates courts. These were installed by the NI
Prison Service. The scheduling of live link applications will require
prompt liaison with court administrators to ensure appropriate courtroom
availability. The cost of introducing and managing the system in the
Secure Unit, including call charges and recurring maintenance charges
would have to be addressed,
• Family courts should strive to be user friendly especially for children and
their families,
• Availability of a live link facility within the present Secure Unit at
Lakewood, rather than the child having to be escorted to the adjoining
youth justice unit on the Rathgael site,
• Explore arrangements in England both for transportation of children from
secure accommodation to court and use of live link; and
• It was noted that PSNI no longer transport children to youth courts and
this is now contracted out to Maybin. It may be that in the future the police
page 17
Work of Sub-Committees during 2003/04
will be less able or willing to assist Social Services with transportation of
children from the Secure Unit to court, even in cases where risk of
absconding and associated significant harm is perceived to be high.
2 In February 2004 the Director of Family and Child Care, Ulster Community
& Hospitals Trust attended a full COAC meeting and confirmed the Trust’s
commitment to make provision for live link, both in the existing secure
facility and in the new Regional Care Facility which is due to open in
October 2005.
In March 2003 a draft
Live Link: Risk Assessment Criteria was prepared
by the General Manager of the Lakewood Centre. This was circulated for
consultation. The responses were considered at a subsequent sub-committee
meeting. Issues raised in the responses included:
• Implications of Article 44 (7) of the Children (NI) Order 1995, and the
child’s right to attend at court,
• Live link should only be used with the child’s consent. In the absence of
consent the child should be permitted to exercise his/her right to appear in
court,
• Arrangements for the child’s legal representative so as not to prejudice a
child who opts to use live link,
• Consultation with children or young persons who have had the experience
of a secure accommodation placement regarding the use of live link, or
other alternatives, such as a special court convened in the Lakewood
Centre; and
• Additional resources to provide for safe transportation of children from
secure accommodation to court.
All responses have been considered in detail and the following
recommendations made:
• Draft ‘Live Link: Risk Assessment Criteria’ appears to be fair, though it
may be difficult to complete this assessment during the 72 hours prior to
the first court appearance,
• Use of live link in appropriate Article 44 hearings is a way of overcoming
the problem of safe transportation of children at risk of absconding to and
from court,
• Any legislative change must be sensitive to a child’s right to a fair trail,
balanced with what is deemed to be a child’s best interests,
• Consider protocol and procedures for use of live link in youth courts and
in adult bail applications, if any,
• Consider provision for live link in family proceedings in other
jurisdictions; and
• The need for a
consultation process to further consider when live link
will be used; review the draft risk assessment and proposed protocol. This
consultation process must be representative of all relevant
interest groups.
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Work of Sub-Committees during 2003/04
New Initiative
The sub-committee noted the initiative in at least one Community Trust to
2
provide a small specialist residential unit as a ‘half way house’ between a
children’s home and secure accommodation. Consequently, it would
welcome any evaluation regarding the success of this unit in terms of
providing a successful ‘step up’ and/or ‘step down’ facility for children as an
alternative to a secure accommodation placement.
Review
In addition to its commitment to the introduction of live link with proper
legislative amendment, the sub-committee will continue to monitor and
review the following:
• Alternatives to secure accommodation,
• The work of the Children Matter Task Force in terms of secure
accommodation provision,
• The opening of the new Regional Secure Care Facility at Rathgael,
scheduled for October 2005,
• Adherence to COAC Best Practice Guidance; Secure Accommodation
3.1.27 page 22-24,
• Proposal for a court report template for Article 44 applications; and
• Interim arrangements for transportation of children to/from secure
accommodation, especially when first placed.
Conclusion
Concerns in respect of safe transportation of children continue and the extent
of social services’ responsibilities is likely to give rise to a legal challenge at
some stage.
Draft TV Live Link Risk Assessment Criteria
Introduction
The management team at Lakewood Centre welcome the consideration of the
use of ‘live TV links’ between secure accommodation and the courts in
specific circumstances.
It is of utmost importance that the process for identifying when the TV Link
should be used is carefully considered and debated and we offer the
following proposals as a contribution to the COAC’s deliberations.
It is our view that the decision to use a TV link rather than facilitate a young
person’s attendance at the court should be carefully considered in each
instance and should be based on the following principles.
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Work of Sub-Committees during 2003/04
Principles
•
The young person should attend the court in person unless there is
2 sufficient reason indicating it would be unsafe for the young person to do
so,
•
The welfare of the young person is the paramount consideration and the
use of TV link should only be considered if there is an assessed risk to the
welfare of the young person in question; and
•
Each situation should be individually considered and a formal risk
assessment undertaken for each court appearance.
Risk Assessment
The following factors should be considered:
•
Risk behaviours prior to admission to secure accommodation (level of
absconding, degree of harm to self or others),
•
Specific risks to the young person, staff accompanying the young person
and to the public,
•
Young person’s behaviour, attitude and degree of cooperation since
admission to secure accommodation,
•
Length of time since admission,
•
Level of cooperation and agreement with care plan (to include young
person and their family),
•
Environmental factors i.e. any specific risks in returning the young person
to a geographical area/community where risks were previously evident;
and
•
Risk management strategy – can the risks be managed sufficiently to
facilitate attendance at court?
Decision Making Process
The risk assessment should be undertaken by the Applicant Trust, in
conjunction with Lakewood staff and in consultation with the young person,
their parents, legal representative and Guardian ad Litem.
A recommendation, supported by the risk assessment, should be made to the
court prior to the hearing. The resident magistrate can then decide if the use
of the TV link is appropriate.
For initial hearings, within the 72 hour period, there may not be sufficient
time to consult with the court beforehand. In these circumstances it may be
necessary to proceed with arrangements for use of the TV link, if
recommended, with the contingency in place to have the young person
presented to the court if directed.
page 20
Work of Sub-Committees during 2003/04
SEPARATE REPRESENTATION
SUB-COMMITTEE
2
As recorded in our previous annual report, COAC established a sub-
committee to review the provision of separate representation for children in
Private Law proceedings. The report reviewed the existing mechanisms
whereby children can avail of separate representation and considered various
models for the provision of such representation. The most common models
were identified as:
• The lawyer as advocate for the child,
• The social worker as advocate for the child; and
• The tandem model combining the services of both lawyer and social
worker.
The tandem model of representation will be familiar to all those involved in
Public Law applications under the Children Order. In such cases children
enjoy the benefit of representation by a solicitor and a Guardian ad Litem.
There was an established view among those surveyed during the preparation
of the report that there should be a similar model available to children
involved in Private Law proceedings.
The sub-committee noted the widespread consensus in support of the view
that in contrast with Public Law proceedings it was not necessary to provide
separate representation for children in all Private Law cases. The report then
considered the scope and nature of appropriate criteria to be applied by
courts when confronted with an application for separate representation and
identified a helpful template generated by the High Court of Australia.
The draft report was presented to the Committee and was the subject of
substantive and insightful comment and review by DHSSPS and SSI. The
report was then circulated beyond the Committee to a shortlist of persons and
organizations involved in Private Law cases.
The final chapter of the report was revised in light of the comments by
consultees. The sub-committee did not resile from its recommendation
regarding the establishment of a Family Advocate system in Northern Ireland
similar to the model operative in South Africa. The sub-committee was very
conscious however of the lack of research in Northern Ireland on the
operation of the court welfare system and the experience of children and
parents in families engaged in divorce proceedings before the courts.
COAC has identified discrete issues arising from the report such as the role
and function of the court welfare officer and the need for empirical data to
be generated to allow realistic costing of the provision of representation.
page 21
Work of Sub-Committees during 2003/04
These issues have been assigned to working groups for time-limited
investigation and report to the Committee.
2 The provision of representation for children has strategic, operational and
financial implications for courts, the legal profession and social services.
The provision of such representation does not lie within the gift of COAC but
the Committee will continue to promote and inform this debate through this
report and the working groups.
page 22
Work of Family Court Business Committees
during 2003/04
3
BELFAST
At the four meetings held between 10 June 2003 and 9 March 2004 there
were a number of recurring topics, namely:
• Secure Accommodation,
• The Guardian ad Litem waiting list,
• The time scale for Article 4 Reports; and
• The Mediation Project
Also discussed were costs in care cases, the shortage of social workers and
waiting times at court. The minutes of these discussions were forwarded
to COAC.
Secure Accommodation
This has been a recurring theme and problem since the inception of the
committee. Despite some increase in staff and resources, the need cannot
always be met promptly when it becomes manifest. At times there is still
a queuing system for a candidate in a very vulnerable state with no place
available.
The conduct of hearings on television live link was favoured by most
members. However, Human Rights concerns were raised as to the child’s
right to appear in court. The committee was informed that the Association of
Family Solicitors were to consult with the Children’s Commissioner on
the matter.
Delay in appointing Guardians ad Litem
In December 2003, it was reported that two additional guardians were being
appointed and it was hoped that this would address the shortage of guardians
and consequent delay in proceedings experienced at the family proceedings
court.
Article 4 Reports
Article 4 welfare reports were being provided in Belfast within ten weeks
and it was hoped that this could be reduced to eight weeks. However it was
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Work of Family Court Business Committees during 2003/04
noted that difficulties in the recruitment and retention of social workers for
child protection work would impact on this.
3 Reports illustrated a 17% turnover of social workers with only one team
being fully staffed. A recruitment drive was ongoing but social workers
appeared to be looking for opportunities other than fieldwork and successful
applicants would be liable to rigorous vetting. An example of this was that a
position for a hospital social worker attracted twenty applicants but only five
applied for fieldwork positions.
Other Trusts were reportedly having similar problems in the retention of
experienced staff. The committee was informed that members of the NI
Youth and Family Court Association (NIYFCA) had, during a visit to a
children’s home met social workers who while not yet fully qualified were
receiving job-specific training. A representative of one of the Trusts on the
committee also confirmed that newly qualified social workers were
responsible for cases that they should not be taking because of their
complexity. It was also stated that appearing in court had an effect on social
workers. The Chairman agreed that this could be a difficult experience, but
he would be pleased to speak to trainee social workers. However, he felt that
there was no substitute for attending court. Newly qualified social workers
should attend court to observe, as long as the Bench was notified beforehand
and the parties involved in a case consented. It was confirmed by the resident
magistrates’ representative that this was happening in the family proceedings
court. An invitation was also extended by NIYFCA to meet with social
workers and discuss any problems they might have. The ‘mock court’ held in
Londonderry was also considered as a possible way to alleviate the fear
factor of appearing in court.
Mediation Project
There appeared to be difficulty in finding suitable cases to refer to the
project and it was felt that by the time a case reached court, it was often too
late for mediation to work.
LONDONDERRY
In the last year Londonderry Family Court Business Committee continued its
interdisciplinary approach to improving both legal and social work practice
and information in relation to evidencing facts at issue.
A joint seminar was held at Altnagelvin Hospital organised by the Bar
Council of Northern Ireland and NIGALA under the auspices of the Family
Courts Business Committee. The seminar focused on what was required to
establish neglect and addressed how long social workers should wait before
considering significant intervention as opposed to giving continued
assistance to act as a safety net to ensure children retain minimum care. After
page 24
Work of Family Court Business Committees during 2003/04
an initial address from a practicing barrister and a member of NIGALA,
those attending broke up into six interdisciplinary groups including
representatives from the Education Board, health visitors, doctors as well as
3
lawyers and social workers. The rapporteur for each syndicate was a social
work student from Magee Campus, University of Ulster.
The committee continued to consider how cases could be listed in order to
best utilise the available court time. This year, an increase in the number of
family trial dates being vacated because expert reports were not provided in
time was also noted.
The thorny problem of when experts are really required was again discussed.
In March 2004 Mr Justice Gillen came to Magee Campus to launch the
COAC Best Practice Guidance. This included a question and answer session
involving members of the interdisciplinary audience.
The committee provided loose leaf copies of the Guidance made up for the
local solicitors practising in the family proceedings court and care centre.
Specimen copies were also provided for the local HSS Trusts so that they
could disseminate copies to their social workers.
The Chair would like to thank committee members and court staff who play
an invaluable role in the organisation of committee events and also
Altnagelvin Hospital and Magee Campus for making their premises
available for events.
CRAIGAVON
This committee met eight times during the period 1 April 2003 to 31 March
2004. The deputy Chair of the committee changed in September 2003 when
the outgoing resident magistrate was transferred to Belfast.
The committee itself had a busy year organising three major training events.
The first event was an open forum at Craigavon Courthouse in May 2003,
entitled “Putting Children at the centre of Family Proceedings Courts”. This
involved presentations by the local Trust and NIGALA on the work of their
respective organisations. The resident magistrate also spoke on the aims of
family proceedings courts in general and the purpose of directions hearings
in particular.
The success of this event prompted a similar event at Newry Courthouse that
took place in September 2003 entitled “Putting Children First”. On this
occasion presentations were made by representatives from the same
disciplines. A large attendance was recorded at both of the events.
page 25
Work of Family Court Business Committees during 2003/04
A seminar entitled “Recognising and Evidencing Emotional Abuse and
Neglect” was held in March 2004 at the Upper Bann Institute in Portadown.
Over 70 delegates attended from a wide range of disciplines involved in the
3 child protection, education, legal and medical professions. The main speaker
was a consultant child and adolescent psychiatrist who spoke on the
diagnosis and the effects of emotional abuse. It also included a series of
workshops in which participants were invited to consider three case studies.
The event was also used as an opportunity to introduce those attending to the
COAC Best Practice Guidance. Feedback from these events revealed that not
only were obvious benefits gained from the content of each programme but
they also gave local professionals an opportunity to meet and discuss
problems of mutual interest. It is hoped that similar events will be organised
in the forthcoming year.
At the February 2004 meeting a short presentation was given by Barnardo’s
on a Domestic Violence Risk Assessment model, which is presently being
piloted in the Southern Health and Social Services Board area.
Perhaps amongst the most important issues regularly considered by the
committee has been the provision of a full time court welfare officer at
Craigavon family proceedings court. Both local resident magistrates have
emphasised the benefits gained from the attendance of an experienced social
worker in that role at Lisburn family proceedings court. This was particularly
noticeable in the number of cases resolved without the need for a full social
welfare report. In Craigavon, where there is no such provision, more reports
are required and because of a shortage of social workers in that area, take
longer to obtain. The representative of Craigavon and Banbridge HSS Trust
on the committee has agreed to seek funding from his Trust for such a post.
Continuing consideration was given to the problem identified in last year’s
report, as to the frequency of court sittings in Lisburn and Craigavon. This
regularly led to interim care orders having to be made for two weeks rather
than four and on occasions, having to be adjourned from one of the venues
to the other. While additional court sittings have been arranged from time to
time, the answer at least in Craigavon, may be the re-scheduling of the court
calendar. The problem is not so easily resolved in Lisburn, but further
consideration will be given to the problem during the forthcoming year.
Children Order statistics and the reports of the other Family Court Business
Committees are standing items on the committee’s agenda. It is believed that
the statistics reveal that work in the family proceedings courts in the area is
being conducted efficiently. However, it has been noted that recent family
proceedings courts have been large, and we wait to see if this is evidence of
an increase in business. Further, the difficulties with social workers in the
Craigavon area may have led to some delay in obtaining reports and in the
disposal of cases.
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Work of Family Court Business Committees during 2003/04
Finally, the committee would wish to acknowledge the support of all its
members who gave of their time so generously in attending its meetings and
in particular, in organising and participating in the training events described.
3
page 27
page 28
Issues Considered/Addressed by the Committee
during 2003/04
4
LATERAL TRANSFER
This report was commissioned by the Committee in response to a query
raised by a resident magistrate who highlighted concern at the absence of any
power to affect the lateral transfer of Children Order cases between family
proceedings courts. The lack of such a power had caused difficulties in cases
where the parties had relocated to another part of Northern Ireland outside
the territorial jurisdiction of the family proceedings court in which the
original application was issued.
The difficulties included inconvenience to the parties who were required to
travel to the original court and to social services in the conduct of
assessments and the preparation of reports. Such difficulties could prove a
source of delay in the resolution of cases. Although comparatively rare the
situation did recur and COAC was asked to address the issue of lateral
transfer between family proceedings courts.
The report reviewed the provision for lateral transfer in England & Wales and
the transfer mechanisms implemented by the Children (Scotland) Act 1995.
The level of use of the lateral transfer systems in these jurisdictions was also
considered.
The English provisions allowed lateral transfers between family proceedings
courts when such transfer is deemed to be in the best interests of the child.
The court must have regard first to the principle of avoiding delay. Transfer
is in the best interests of the child when it will accelerate the determination
of proceedings or will enable the matter to be heard with other family
proceedings or for some other reason.
The Children Act Advisory Committee (CAAC) scrutinized the transfer
mechanisms provided in the legislation until that Committee was dissolved.
In its report for 1992/93 the Committee highlighted lateral transfer as an area
of concern. The particular concern was the limited use being made of the
facility to transfer cases laterally. The Committee’s survey revealed that
lateral transfer between family proceedings courts was generally confined to
the need to consolidate proceedings or because one or more of the parties
was resident within the receiving court’s jurisdiction. The Committee’s
subsequent reports for the years 1993 to 1995 revealed that the numbers of
lateral transfers remained minimal.
For the purposes of this report the most significant provision of the Children
(Scotland) Act 1995 is found in Section 48 which allows a children’s hearing
page 29
Issues Considered/Addressed by the Committee during 2003/04
(the Scottish equivalent of the family proceedings court) to transfer a case to
another children’s hearing which is better placed to consider the matter.
4 The Scottish approach of vesting full discretion in the particular children’s
hearing to determine whether to effect a lateral transfer of a case to a
different area was contrasted with the power conferred on the Lord
Chancellor by Paragraph 2 of Schedule 7 of the Children (Northern Ireland)
Order 1995 to make an order governing the transfer of proceedings within
the concurrent jurisdiction. This power was given effect in the Children
(Allocation of Proceedings) Order (Northern Ireland) 1996. It is not clear
whether the absence of any mechanism within the rules for lateral transfer of
cases between family proceedings courts was a deliberate omission or an
accidental oversight.
Such evidence as is available from England & Wales and Scotland indicates
that the incidence of lateral transfers at family proceedings court level is very
low. This fact is not sufficient to justify the current lack of a lateral transfer
mechanism between family proceedings courts in Northern Ireland.
Conclusions
• There should be a mechanism for lateral transfer between family
proceedings courts in Northern Ireland,
• Such a mechanism should be implemented by way of amendment to the
Children (Allocation of Proceedings) Order (Northern Ireland) 1996; and
• The form of such an amendment, subject to the advice of the legislative
draftsman should be modelled on Article 6(1) of the Children (Allocation
of Proceedings) Order 1991.
COAC is now liasing with the Northern Ireland Court Service to devise an
appropriate amendment to the Rules.
CONCURRENT PROCEEDINGS
In nearly every case in Northern Ireland where a care order has been made
and the care plan is for adoption, the application to have a child freed for
adoption is made to the High Court.
This is not the practice in England & Wales where if the family care centre
makes the care order, the freeing application is usually made in the same
court.
Any county court judge can hear an application to free a child for adoption
and ultimately make the adoption order. However, the Trusts almost
inevitably, after the care order is made, issue their freeing applications in the
page 30
Issues Considered/Addressed by the Committee during 2003/04
High Court. They in effect, choose the forum where the case is to be heard.
The fact that almost all freeing applications in care proceedings are heard in
the High Court is neither necessary nor desirable.
4
The reasons given for the freeing decisions to be taken by the High Court are
as follows:
•
Different considerations of law apply. That is correct but care centre
judges apply these considerations to family adoption cases where on
occasions the issues are not as clear or well defined as they are in Public
Law cases,
•
The importance of the decision breaking all links with the birth
parents. The real decision that leads to the severing of the link with the
birth parent is in reality nearly always taken once the care order is made,
as 94% of freeing applications are successful. The judge who has heard
direct evidence of the attachment issues concerning the birth parents’ link
with the child is arguably best placed to deal with those issues when a
birth parent is arguing they are not unreasonably withholding their
consent,
• It has been argued as a reason for transferring freeing proceedings to the
High Court that
it is not desirable to have the same judge who hears the
care case hear the freeing application. This reasoning does not seem to
be applied to the High Court,
•
The question of appeals from the care centres if freeing orders were
granted at the care centre level. While there may be an issue about the
number of appeals initially, provided care centre judges apply the correct
criteria in reaching their decisions this should not be a problem. It should
also be noted that there is not a huge number of appeals from the care
centre judges when they grant a care order where the care plan is
adoption. In any event it should be possible to list appeal hearings on the
papers more expeditiously than it is to hear the original applications; and
• It has also been argued that
care centre office support could not deal
with freeing applications. Surely this is simply a matter of putting
whatever additional procedures that are necessary in place, particularly
since the county court offices deal with family adoptions.
The advantages of having freeing applications heard before the care centre
are as follows:
• Any transfer from one court jurisdiction to another has the potential
for delay,
• It would allow the care centre judge to timetable the freeing application
immediately after the care order is made and thus avoid delay,
• Often courts are assured that adoptive parents are available and it later
transpires that they are not. Contact with the natural parent is often
drastically reduced or stopped and if the child cannot be adopted this may
not be in its best interest. It may help the Trust examine how realistic the
care plan is – see
Re McD. Londonderry Care Centre April 2002; and
page 31
Issues Considered/Addressed by the Committee during 2003/04
• The demands on the High Court even with an additional judge are ever
increasing and therefore freeing applications may not, in all cases, be
dealt with as quickly as they would if the care centre judge dealt with the
4 appropriate freeing applications.
The rules allow for care centre judges to hear these applications. It would
appear to have become a matter of practice that they are nearly always
transferred to the High Court.
It seems that those representing the Trusts would be more inclined to have
freeing applications heard in the High Court than those representing the
prospective adoptive parents. However it is not appropriate that one of the
parties to the proceedings should have the right to select the venue.
It would be helpful to see:
• How long it takes freeing applications to be lodged after the care centre
judge has made a care order,
• How many cases there are where the court has been told a freeing
application will be made, where it is not ultimately done,
• How long in total it takes for a child to be adopted; and
• The number of cases where a freeing order is made and no adoption takes
place because adoptive parents are not available.
Conclusion
Depending on the objective findings it may well be that cases where the
ultimate care plan is adoption, which have been heard in the care centre,
should also have the freeing application heard in the same jurisdiction. The
advantage of such a course would lead to:
• More effective planning with all the difficulties surrounding freeing being
fully addressed at the care plan stage,
• The avoidance of delay by ensuring that the issue of a freeing application
is timetabled by the care centre judge; and
• Reduction of the workload of the High Court, when the care centres are
capable of dealing with the issues.
This would result in the High Court hearing freeing applications in their own
care cases. There should also be the power for care centre judges to transfer
freeing applications to the High Court if they consider the case requires the
attention of the High Court for legal reasons or because there are complex
factual issues.
page 32
Issues Considered/Addressed by the Committee during 2003/04
CHILD PROTECTION AND CONFIDENTIALITY
The representative of Children in NI raised the issue of the need for the
4
development of a child protection and confidentiality policy in respect of
solicitors who represent children and young people in Northern Ireland at a
meeting of COAC in June 2003.
Child protection procedures for most professionals working with children
and young people including the medical profession are now well documented
in the form of the recently revised “Co-operating To Protect Children”
(Volume 6 Children (Northern Ireland) Order 1995) entitled “Co-operating
to Safeguard Children” (DHSSPS May 2003) and in the detailed Area Child
Protection Procedure (ACPC) procedures which are available in respect of
each health board area in Northern Ireland.
The memorandum ”Joint Protocol Procedures and Achieving Best Evidence”
clearly set out the investigative procedures followed by police and social
services where an allegation of abuse of children has been made. However,
there is no specific guidance in Northern Ireland for solicitors and barristers
who meet with and represent children and young people under 18. It can be
a daunting experience for any solicitor to be in a situation where a child has
disclosed allegations of abuse directly to them or indeed where an adult has
made allegations of abuse in relation to a particular child. The representation
of children and young people includes not only accredited solicitors acting in
specified proceedings under the Children (Northern Ireland) Order 1995, but
also solicitors who represent children and young people in other areas such
as youth justice and education cases.
It was indicated that a sub group of the Family Law Committee of the Law
Society of NI has been established to research the case law and existing
precedents in other jurisdictions in this area, with a view to developing a
draft child protection and confidentiality policy for solicitors who represent
children, which could be circulated for consultation in Northern Ireland. The
sub group consists of a representative of the Family Law Committee, two
private practice solicitors who represent children, a recently nominated
representative from NIGALA and a representative from the Children’s
Law Centre.
A discussion paper outlining examples of existing child protection guidance
in other professions and providing a framework for the development of
policy guidelines in Northern Ireland has been circulated to members of this
sub group. In addition key cases in this area have been collated for
consideration.
page 33
Issues Considered/Addressed by the Committee during 2003/04
The representative of Children in NI has agreed to apprise COAC of further
developments with this work during the forthcoming year.
4 LEGAL AID AS A DELAYING ELEMENT
The granting of legal aid, particularly in cases involving the appointment of
medical experts, has in some instances proved to be a source of delay. It has
been the experience of those on the Bench that disputes about fees have often
been the key to the problem especially in the lower tiers of the court system.
With that in mind the Committee invited the Head of Operations Division
within the Legal Aid Department (‘the Department’) to address the
Committee in May 2003 and again in June 2003 to update it on
developments. She indicated that the Department’s administrative staff had
delegated authority within strict criteria to process claims from those lower
tiers. Where claims exceeded those boundaries and/or solicitors provided
scant detail, further information or referral to the Legal Aid Committee was
often required. However rates of payment were also identified as a
contentious issue.
It was drawn to the Divisional Head’s attention that a system was in operation
in the Family Division of the High Court whereby there was a direct point of
contact between the office in the Family Division and the Department that
had proved invaluable in resolving disputes expeditiously and efficiently. The
Divisional Head agreed to this system being replicated in the family care
centres. At the subsequent meeting in June she undertook to contact all the
family resident magistrates and judges to provide a name and telephone
number of the contact point within the Department to whom any queries with
reference to specific cases could be addressed. Only time will tell whether
this helpful development bears fruit but this Committee will revisit the issue
in the future.
A fundamental problem however still remains as to the appropriate rates to
be paid from the public fund to experts. A number of underlying problems lie
herein:
• Are too many experts being sought,
• Are the instructions to choose experts too vague and unclear,
• Are the time estimates by those experts unrealistic and insufficiently
sensitive to the cost involved; and
• Has the Department a realistic grip on the market value of these services?
In any event, too many cases are delayed by the problem remaining
unresolved. This is perhaps a task that requires consideration by the
Committee in order to assess the scale of the problem and the nature of a
mutually agreeable resolution. It is therefore an issue that will command our
attention in the forthcoming year. The Department has proved receptive to
communication with this Committee. Our Chairman has already met with
page 34
Issues Considered/Addressed by the Committee during 2003/04
Sir Anthony Holland, Chairman of the Northern Ireland Legal Services
Commission to discuss this problem amongst others and Sir Anthony is to
attend some hearings in the High Court to see at first hand the system
4
in operation.
page 35
page 36
Other Issues of Concern to the Committee
5
MULTI-DISCIPLINARY TRAINING
Lord Justice Thorpe, speaking of the need for a multi-disciplinary structure
within the family justice system recently said,
“The creation of an inter-disciplinary structure for the family justice system
has been high on my wish list for several years. The delivery of a high quality
service to all those who enter the family justice system, whether as applicants
or as respondents, must depend on informed collaboration. No one
contributor can contribute more than his own best effort. But that best effort
can be swiftly nullified by the shortcomings of any one of the many other
crucial contributors to outcome. Whilst this applies equally to all our system
of justice it is more acutely true of the family justice system where the judge
holds an inquisitorial duty and where the diversity of other professional
contributions is so extensive.”
This is a philosophy to which COAC is completely wedded. To that end we
have expended a great deal of time and energy considering a multi-
disciplinary approach to our remit and our tasks.
We have set up a multi-disciplinary sub-committee dealing with family law
and childcare literature. Our aim has been to facilitate access to a selection
of summaries of articles, books and literature within the various disciplines
of the family justice and childcare system and to raise awareness of this
literature on an interdisciplinary basis. We have established a portal that is
updated regularly with the titles and summaries of articles and literature
submitted.
Members of the Committee have participated in a scheme whereby a training
programme has been set up for medical trainees to spend some days in court
and with a family law judge. This should aim not only to encourage the
participation of such experts in the family justice system but also stimulate
an exchange of expertise and ideas between the various professions involved
therein.
In both Belfast and Londonderry this programme has been very successful
to date and this Committee is extremely grateful for the help that has been
given by a consultant psychiatrist in the child and adolescent field who has
been instrumental in setting up the programme. The Director of the Institute
of Professional Legal Studies has also made an invaluable contribution
towards the institution and success of this programme. The Lord Chief
Justice has approved of the scheme and appropriate precaution has been
taken to protect the confidentiality and privacy of such cases.
page 37
Other Issues of Concern to the Committee
It is the belief of the Committee that this experiment can be expanded to
include visits from trainee social workers accompanying both the Bar and
judges and perhaps reciprocal facilities being provided for members of the
5 legal profession to attend with social workers.
It is only by an exchange of views, a sharing of mutual experiences and a
realisation of the problems facing the disparate branches of the family justice
system that we can all benefit from our shared experience.
Herein lies one of the real values of COAC. We are one of the few bodies that
have representation right across the whole system and it is this multi-
disciplinary representation that allows our input to be so diverse and
hopefully so comprehensive. The question arises as to whether or not in
addition to this, the creation of a unified structure throughout the jurisdiction
is needed. This would have a much wider remit than that currently enjoyed
by COAC and might lend itself to rather more “blue skies” thinking, than the
detailed practical analysis which is so necessarily a part of our present
restricted remit.
NIGALA WAITING LIST
NIGALA was introduced in November 1996 to safeguard the interests of
children who are the subjects of specified Public Law proceedings and
adoption proceedings.
It has Special Agency status under the auspices of DHSSPS. It is generally
acknowledged that both health and social services have suffered from a
legacy of under funding in recent years and NIGALA has certainly not been
exempt from the financial stringency of the Health and Personal Social
Services. This has manifested itself in terms of a waiting list of appointments
of Guardians ad Litem by the courts that require allocation.
Demand in terms of new appointments of Guardians ad Litem from the
courts has outstretched the supply of guardians to undertake the work since
early 2001. The Guardian ad Litem staff worked strenuously to cope with the
workload during the financial year 2001/02, when new appointments rose by
21% over the previous year. However, the establishment of a waiting list for
new appointments was made inevitable in April 2002 when NIGALA learnt
that additional recurrent funding was not being made available for the
forthcoming financial year.
A waiting list has now been in place for over two years and is a major source
of concern for all involved in Public Law and adoption proceedings.
Arguably, in certain cases, it represents a breach of the child’s right to
representation and a fair hearing.
page 38
Other Issues of Concern to the Committee
The number of cases on the waiting list fluctuates daily depending on the
number of notifications of new appointments received and the number of
allocations being achieved. In December 2002 it reached a peak of 58 but fell
5
back during 2003 and into 2004 to 20+ at any one time (see Diagram 1). In
February 2004, the number actually fell below 20 on certain dates but surged
again in March with an influx of notifications of new appointments.
The lower figures achieved during 2003/04 reflect a 9% decrease in the
number of new appointments made in that period compared with the
previous year, combined with a determination on behalf of NIGALA to
return to a position where all children may expect the same level of service.
However, no additional resource had been made available to the Agency.
It should be noted that despite the deep sense of frustration expressed by all
members of the judiciary involved in family proceedings at the existence of
a NIGALA waiting list, there is widespread agreement that the service
delivered is of a high standard once a guardian is allocated a case (see
Diagram 2, taken from 2003 judicial survey).
page 39
Other Issues of Concern to the Committee
5
All involved in Public Law and adoption proceedings are agreed that the
guardian is pivotal to the process, hence the late allocation of a guardian to
a case creates immense problems for the courts, the parties, the child and not
least the Guardian ad Litem. It is hoped therefore that the eradication of the
NIGALA waiting list will become a reality in 2004/05.
THE PROTOCOL FOR JUDICIAL
MANAGEMENT IN PUBLIC LAW CHILDREN
ACT CASES IN ENGLAND & WALES
The Committee has considered the current and new English protocol that
essentially provides a step-by-step procedure through Public Law cases in
England & Wales. We considered the applicability of such an approach in our
jurisdiction and whilst we concluded that the procedure to be adopted in
England & Wales is a great advance on that previously operated, it may not
be appropriate for use in Northern Ireland for a number of reasons.
Firstly, it is clear that the delay in processing of cases in England & Wales is
much greater than in Northern Ireland. The aim of the new protocol is to
bring about a situation whereby cases are completed within 40 weeks. The
fact of the matter is that in Northern Ireland, in most courts, cases are
completed in considerably less than 40 weeks. The nature of the delay in the
system in Northern Ireland is therefore less than encountered in England
& Wales.
page 40
Other Issues of Concern to the Committee
Secondly, it was felt that the English system is too much of a time driven
process without the necessary built-in flexibility which perhaps cases
involving children demand and which we in Northern Ireland have
5
traditionally been wedded to. By focusing too much on time sequences rather
than on the overall process, there is a danger of ‘not seeing the wood for
the trees’.
Our focus is on early identification of issues and the principle of getting it
right from the very beginning. Effective case management depends not so
much on fixed periods for fixed steps, but rather an in-depth analysis of the
particular case in hand, consideration of an individualised timetable and a
close scrutiny of the particular circumstances in each case, without imposing
an objective timekeeping standard in every case that comes before the court.
In a smaller jurisdiction such as Northern Ireland, it is somewhat easier to
give more personal and individual attention to each case, whilst at the same
time strictly adhering to standards of early determination and rigorous
eradication of general delaying practices. Coincidently, the two separate
approaches are starting from a similar position and only time will tell
whether each jurisdiction can borrow from the other.
We welcomed the assistance given by the authors of the English protocol
who have willingly come to Northern Ireland in order to apprise us of its
inception. There has been a true measure of co-operation between the
jurisdictions in looking at the approaches. COAC is completely committed to
the notion of a shared approach throughout the jurisdictions in the United
Kingdom if we are all to mutually benefit from each other’s approach.
ADDITIONAL FAMILY CARE CENTRES:
DUNGANNON FAMILY CARE CENTRE
Initially when discussions took place as to how the Children Order was to be
implemented in Northern Ireland it was decided that there would be three
care centres: one in Belfast to cover cases originating in the divisions of
Belfast, Antrim and Ards; the second in Londonderry dealing with cases
from the county court divisions of Londonderry and Fermanagh & Tyrone.
The third care centre was based at Craigavon to deal with business
originating in Craigavon and Armagh & South Down.
The reason for having such centres was that they could be regarded as
Centres of Excellence with appropriate court accommodation and waiting
areas to deal with Public Law and Private Law children’s cases.
At the outset when it was decided that Londonderry Recorder’s Court would
be the site for Londonderry Family Care Centre, the legal practitioners in
Fermanagh & Tyrone did raise concerns about the travelling distance
page 41
Other Issues of Concern to the Committee
involved for members of the public and their legal representatives. More than
half of the Public Law cases in that care centre originated in Fermanagh
& Tyrone.
5 It was the view of the Londonderry Family Courts Business Committee
which included representatives from Foyle Trust and Sperrin & Lakeland
Trust that the amount of family cases coming from Fermanagh & Tyrone
warranted a care centre being set up for that division at Dungannon. A fourth
care centre based in that location would have a number of advantages. Firstly
it would reduce the workload of Londonderry Family Care Centre where it
was becoming increasingly difficult to deal expeditiously with the business
when care centre work had to compete with other work for court time. To
have an additional care centre in Dungannon would mean that both legal
practitioners and social workers could introduce the type of interdisciplinary
training that occurred in Londonderry, without always having to travel some
distance to the events.
Social workers would similarly benefit in reducing their travel times to and
from court. This would be an advantage in a jurisdiction where there was a
shortage of social workers and their time was of the essence.
All these issues were aired at the County Court Family Law Committee that
duly recommended a fourth family care centre in Dungannon. This was
supported by COAC who has drawn this issue to the attention of the Minister
in order to obtain the necessary legislative change to permit the
establishment of the family care centre, with effect from September 2004.
There is no doubt that this will be of benefit to the public, legal practitioners
and social workers involved in family proceedings. It should also reduce the
workload in Londonderry in the future and by default enable a more efficient
listing of business in that area.
MINISTERIAL MEETING WITH LORD FILKIN
Part of the remit of COAC 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. The Committee therefore
welcomes the opportunity to converse directly with Ministers who deal first
hand with the work of the Committee.
In February of this year the Chairman of COAC, in the company of other
judicial members of the Family Division, met with Lord Filkin,
Parliamentary Under-Secretary of State at the Department of Constitutional
Affairs. It was gratifying to note the interest in and knowledge of the
Committee that the Minister exhibited.
Views were exchanged about the role of COAC, and in particular the
publication of the Best Practice Guidance and the Committee’s report
on delay.
page 42
Other Issues of Concern to the Committee
It was clear that the multi-disciplinary approach to family law by COAC met
with full ministerial approval and reflected the current attitude of
Government to the important work we do. The discussion covered the remit
5
of COAC and in particular as to whether there is a necessity for an over-
arching Family Justice Council similar to that being contemplated in England
& Wales. The need for such a council in order to trigger “blue skies” thinking
in this area, given the existence of COAC, is obviously something that
requires further thought and consideration and the concept is to be reviewed
at a later date.
The concept of a new family justice system linking criminal and family law
in relation to children and young people and invoking joined up structures for
all matters involving the family was a further matter raised. The justification
for such an approach is the need for earlier intervention into dysfunctional
families and perhaps the creation of a one-stop court system. The potential
implications of such a new concept are obviously something that requires
further thought and consideration. The Minister certainly expressed an
interest in utilising current links more effectively to provide corridors
between the criminal and family law systems. Herein lies an area that
perhaps may be explored by COAC in the future.
page 43
page 44
The Future
6
This year saw the culmination of a great deal of work undertaken by this
Committee. In particular we have seen the launch of the Best Practice
Guidance, which is now firmly entrenched in the childcare system, and we
await the developing impact. Similarly we have published a report on delay
and this Committee looks forward to initiatives that will flow from this. With
further reports now having been completed on mediation, child contact
centres and transfers within the court system, the time has come when we
must now seek to address new and equally pressing issues. This year will see
the completion of our reports on separate representation, secure
accommodation and further contributions towards the issue of domestic
violence. We retain standing committees to monitor and revise the practice
guidelines and developments arising out of our delay report.
The multi-disciplinary ethos that underlines all of our work is gathering
momentum with each passing year and has been well illustrated in the work
of the Committee to date. A number of important strategies are unfolding
before us and will require our attention. There is pending a strategy
document dealing with adoption in Northern Ireland that will have an impact
on the effect of the Children Order. A sub-committee has already been set up
and awaits development in this area. The Government is developing a new
strategy towards children and young people with possible changes to
legislation. We shall closely observe and monitor this development and our
input will hopefully be comprehensive. Interdepartmental work on domestic
violence, which will include references to contact centres, is ongoing and
will be reviewed by the sub-committee on domestic violence within the
confines of our remit.
Old chestnuts require new solutions. Delays brought about by an over-use of
medical experts or the under-use of expertise available to us within the
system is something that surely requires scrutiny. The role of the Legal
Services Commission providing expeditious and comprehensive service to
appropriate cases, within the reasonable parameters of public expenditure
may also demand our attention insofar as assessments are a cause of delay
and concern within the system. Any contribution that this Committee can
make to speeding up the process would be an invaluable contribution to our
remit. Members of the legal profession have expressed concern about the
delay in remuneration emanating from the Legal Services Commission and
insofar as this may impact on the question of delay in our remit, it may also
attract our attention in the future. The continuing delay in the availability of
Guardians ad Litem commands a regular place at every COAC meeting and
will continue to do so until the difficulty is resolved.
page 45
The Future
On a wider plane, arguably the time has come now to consider more
conceptual “blue skies” thinking within the family justice system. The role
of COAC in such thinking, consonant with the parameters of our remit, is a
6 further matter that may merit informed reflection in the future year. We must
ask whether delays and special difficulties within the system can be reduced
and scarce resources better deployed by utilising current links to provide
more effective corridors between the criminal and family law system or
should there be a wider, more far reaching consideration of a broader family
justice system, drawing on established international and commonwealth
models. One of the benefits of a small jurisdiction is that it is not only
feasible to set up a small pilot scheme, but the overall implications for cost
and personnel can be moderated because of the size of the concept. Hence,
opportunities may lie in our jurisdiction to lead the way in family justice
rather than predicating a mindset that reacts belatedly to events that initially
happen elsewhere.
This Committee thus provides the opportunity for many minds throughout
the family justice system to pool their experience and their knowledge of the
process, in order to arrive at widely based and comprehensively appraised
solutions to the many problems that confront work on behalf of children in
this province. This is the one area of law where a multi-disciplinary ethos is
not only manifest, but is self-evidently pivotal in order that children can be
appropriately cared for and protected. This Committee will continue to play
its part in this endeavour in the forthcoming year.
page 46
Appendix 1
The Membership of the Committee (1st April 2003 to
31st March 2004)
Chairman
Mr Justice Gillen
High Court Judge (Family Division)
High Court of Justice in Northern
Ireland
Members
His Honour Judge Markey QC
County Court Judge and Family Judge
of the Belfast Family Care Centre
Her Honour Judge Philpott QC
Recorder of Londonderry and Family
Judge of the Londonderry Family Care
Centre
His Honour Judge McKay QC
County Court Judge and Family Judge
of the Craigavon Family Care Centre
Mr Robert Alcorn RM
Resident Magistrate
(Resigned wef 310304)
Mr Ronnie Williamson
Executive Director of the
Northern Ireland Guardian ad
Litem Agency
Mr Norman Humes
Chairman of the Northern Ireland
Youth and Family Courts Association
Mr Fergal Bradley
Head of Child Care Policy
(Mr Leslie Frew resigned
Directorate, DHSSPS
wef 121103)
Mr Paul Martin
Chief Inspector, Social Services
Inspectorate, DHSSPS
Mrs Catherine Dixon
Solicitor
Vacant
Representative of the Directors of
Health and Social Services Trusts
page 47
Appendix 1
Mr Hugh Connor
Director of Social Services, Eastern
(substituting for Professor
Health and Social Services Board
Dominic Burke)
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
Mrs Jacqui Durkin
Head of Business Support Group,
(Mr Eric Strain resigned
Northern Ireland Court Service
wef 040903)
Ms Tara Caul
Children in Northern Ireland
(formerly Childcare (NI))
Mr Michael Williamson
Secretariat, DHSSPS
(Mrs Eileen Magee
resigned wef 040903)
Mr Austin Harper
Secretariat, Northern Ireland Court
Service
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 2003/04. 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. Where Figures relate to 2000/01 and subsequent
years, the period covered extends from April to March whereas previous
years cover the period 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 2004 (See both Table 1 and Figure 1).
Applications and Disposals
Table 2 shows the number of applications lodged and disposed of in all court
tiers for 2003/04. 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 2003/04, 14% of applications lodged concerned Public Law and 86%
concerned Private Law. In terms of disposals, 13% of applications disposed
of concerned Public Law and 87% concerned Private Law (See Figure 3).
Care cases accounted for the majority of Public Law disposals (see Figure 4)
where the percentage rose from 60% in 2002/03 to 64% in 2003/04. The
most common types of order made in Private Law were contact (50%) and
residence (32%) (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 transfer in each case. The
most numerous reason given for transfers to the family care centres was
complexity (58% in 2002/03 and 57% in 2003/04), while for transfers to the
page 49
Appendix 2: Statistics
High Court the main reason was also complexity (54% in 2003/04). During
2003/04 transfers from the family proceeding courts and magistrates’ courts
to the family care centres made up 2% of all applications entered. In
2002/03, such transfers accounted for 1% of all applications entered.
Disposal Times
Table 4 and Figure 5 shows the relative disposal times for both Public Law
and Private Law cases in each court tier for 2003/04. In the family
proceedings courts, average disposal times were 23.1 weeks for Public Law
and 20.8 weeks for Private Law cases. In the care centres, they were 33.3
weeks for Public Law cases and 25.5 weeks for Private Law cases. Public
Law cases in the High Court took 43.0 weeks and Private Law cases took
47.0 weeks. Lodgement to disposal times for Public Law cases have
increased between 2002/03 and 2003/04 in all court tiers, whereas Private
Law cases have decreased on average across all court tiers. It should be noted
that because of the small numbers at the care centres, 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 67% of all disposals in 2003/04 (68 %
in 2002/03), 11% resulted in an order of ‘no order’ in 2003/04 as compared
with 9% in 2002/03 while 15% of the applications were withdrawn (18% in
2002/03) and 6% were refused (5% in 2002/03).
9,444 interim orders were made during 2002/03, a number that increased by
2% to 9,591 in 2003/04. These were made up primarily of contact, residence
and care orders. The number of interim care orders fell by 3% during
2003/04.
Applicants and Respondents
Figure 7 shows the proportions of applicant and respondent types involved in
disposed of cases for the period. The mother was the applicant in 30% of
cases (father 48%, grandparent 3%). Health Boards accounted for 13% of
applicants and others for 2%. The father was the respondent in 30% of cases,
the mother in 61% and other family accounted for 1%.
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).
page 50
Appendix 2: Statistics
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 2002/03 and 2003/04
the number of applications lodged decreased by 1%. There was less than a
1% increase in the number of disposals between 2002/03 and 2003/04.
Figure 10 presents the number of orders and disposals for 1998 to 2003/04.
Parental responsibility disposals increased by 41% between 1998 and
2003/04. Contact (permission) decreased by 17% between 1998 and
2003/04. The number of applications for residence orders disposed of
decreased by 28% between 1998 and 2003/04 and care cases disposed of
increased by 25% between 1998 and 2003/04.
Table 1
Wardship Actions
Wardship
Actions
1995 1996 1997 1998 1999 2000 00/01 01/02 02/03 03/04
Non
140
135
7
3
1
004
9
2
Emergency
Immediate
182
126
1
1
3
08
7
13
15
Provision
Jurisdiction
85
51
06
14
016
8
1
0
page 51
Appendix 2: Statistics
Table 2
Applications and Disposals
01/04/03 - 31/03/04
Applications
High
County
Magistrates'
Total
Court
Court
Court
OCP
Matrimonial Care Centre
Other
FPC
Other
Public Law
91
084
0754
1
930
Private Law
78
105
186
2
5,233
0
5,604
Total
169
105
270
2
5,987
1
6,534
Disposals
High
County
Magistrates'
Total
Court
Court
Court
OCP
Matrimonial Care Centre
Other
FPC
Other
Public Law
198
0 78
05305
811
Private Law
118
95
178
2
4,95005,343
Total
316
95
256
2
5,480
5
6,154
page 52
Appendix 2: Statistics
Table 3
Transfer of Business (Reasons)
01/04/03 - 31/03/04
To
Conven-
Urgency
Gravity
Complex-
Consolid-
Import-
Other
Total
Number of
ience
ity
ation
ance
Reasons
Cases[1]
Transferred
High Court
02
1
32
16
08
59
58
County Ct.
Belfast
1
01
47
9
08
66
65
Londonderry
04
2
12
1
3
5
27
24
Craigavon
002
15
2
06
25
24
Magistrates Ct.
Belfast
2
000002
4
4
Londonderry
00001
1
02
2
Ballymena
0000001
1
1
Omagh
0000001
1
1
Newry
0
0
0
0
0
0
0
0
0
Ards
00000000 0
Craigavon
0000001
1
1
[1] Cases may have more than one application
Table 4
Disposal Times
01/04/03 - 31/03/04
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
42.95
33.28
23.08
26.97
Private Law
46.95
25.54
20.81
21.95
[1] All cases include time taken at first court if transferred
page 53
Appendix 2: Statistics
Table 5
Orders and Disposals
01/04/03 - 31/03/04
Business
Order
No
Refused
Withdrawn
Total
Interim
Made
Order
Order[1]
Parental
22049
46
62
377
70
Responsibility
Contact: Permission
1,620264
123
275
2,282 3,423
Contact: Refusal
18
13
12
9
52
34
Residence
989
146
69
223
1,427 1,205
Prohibited Steps
53
13
18
63
147
201
Specific Issues
74
6
3
32
115
16
Care
297
73
2057
447
3,983
Supervision
27
4
2
6
39
142
Education Supervision
18
3
02
23
8
Child Assessment
00 0 001
Emergency
33
01
1
35
12
Protection
Extension of EPO
2
001
3
5
Appointment of
7011
1
3
85
8
Guardian
Contribution &
5
003
8
1
Other Financial
Secure
21
4
1
1036
89
Accommodation
Article 53 Contact
56
17
16
27
116
244
Family Assistance
1
0001
62
Recovery
3
0003
24
Non-molestation
6
1
1
08
30
Other Orders,
402
11
12
65
10
Applications
Occupation Articles
3
0003
4
Article 56
4
003
7
19
Exclusion
00 0 000
Requirement
Total
3,56060
6
324
789
5,279 9,591
[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
whom orders have been made
Sex
0-4
5-8
9-12
13-16
Male
34.3
29.5
22.3
13.7
1,883
Female
35.5
29.020
.1
15.4
1,784
Total[2]
36.7
28.4
20.4
14.1
3,781
[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 - 01/04/03 - 31/03/04
Public
Private
Total
Belfast
Care Centre
21
79
100
County Courts
0
0
0
Family Proceedings Courts
416
2,929
3,345
Magistrates' Court
0
0
0
Total
437
3,008
3,445
Londonderry
Care Centre
51
89
140
County Courts
0
0
0
Family Proceedings Courts
147
1,106
1,253
Magistrates' Court
0
0
0
Total
198
1,195
1,393
Craigavon
Care Centre
12
18
30
County Courts
0
2
2
Family Proceedings Courts
191
1,198
1,389
Magistrates' Court
1
0
1
Total
204
1,218
1,422
page 55
Appendix 2: Statistics
Table 8
Business Volume - Care Centres and Related Courts
Disposals - 01/04/03 - 31/03/04
Public
Private
Total
Belfast
Care Centre
43
102
145
County Courts
0
0
0
Family Proceedings Courts
312
3,095
3,407
Magistrates' Court
0
0
0
Total
355
3,197
3,552
Londonderry
Care Centre
19
51
70
County Courts
0
0
0
Family Proceedings Courts
116
922
1,038
Magistrates' Court
0
0
0
Total
135
973
1,108
Craigavon
Care Centre
16
25
41
County Courts
0
2
2
Family Proceedings Courts
102
933
1,035
Magistrates' Court
5
0
5
Total
123
9601,0
83
Note: Figures for applications to Family Proceedings Courts may include more than one venue
within a court division.
page 56
Appendix 2: Statistics
Figure 1
Wardship Actions (Jan 1997/Mar 2004)
18
16
14
Actions
12
10
a
rdship
W
8
6
Number of
4
2
0
1997
1998
1999
2000/01
2001/02
2002/03
2003/04
Year
Non Emergency
Immediate Provision
Jurisdiction
Figure 2
Applications Lodged and Disposed of (Jan 1997/Mar 2004)
8000
7000
6000
5000
Applications
4000
3000
Number of
2000
1000
0
1997
1998
1999
2000/01
2001/02
2002/03
2003/04
Year
Lodged
Disposed of
page 57
Appendix 2: Statistics
Figure 3 (a)
Applications Lodged (2003/04)
Public Law
14%
Public Law
Private Law
Private Law
86%
Figure 3 (b)
Applications Disposed of (2003/04)
Public Law
13%
Public Law
Private Law
Private Law
87%
page 58
Appendix 2: Statistics
Figure 4
Children Order Public Law Applications Lodged and Disposed of
(Jan 1998/Mar 2004)
600
500
400
Applications
300
Number of
200
100
0
2003/04 Disposed
2003/04 Lodged
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
Supervision
Care
Emergency Protection
Figure 5
Disposal Time in Weeks (Apr 2003/Mar 2004)
60
50
40
i
me (weeks)
T
30
20
verage Disposal
A
10
0
All Court
Family Proceedings
Care
High
Types
Court
Centre
Court
Court Type
Private
Public
page 59
Appendix 2: Statistics
Figure 6 (a)
Public Law Orders Made (2003/04)
Other Orders, Applications
9%
Recovery
0%
Article 53 Contact
15%
Secure Accommodation
5%
Emergency Protection
5%
Child Assessment
0%
Education Supervision
Care
3%
59%
Supervision
5%
Figure 6 (b)
Private Law Orders Made (2003/04)
Specific Issues
Other Orders, Applications
3%
3%
Prohibited Steps
3%
Parental Responsibility
8%
Residence
32%
Contact: Permission
50%
Contact: Refusal
1%
page 60
Appendix 2: Statistics
Figure 7 (a)
Applicants (April 2003-Mar 2004)
CSA
0%
Ed & Library Boards
HSS Trusts
1%
13%
Other
2%
Other Family
3%
Mother
Grandparents
30%
3%
Father
48%
Figure 7 (b)
Respondents (April 2003-Mar 2004)
CSA
HSS Trusts
0%
3%
Ed & Library Boards
Other Family
0%
1%
Other
Grandparents
5%
1%
Mother
61%
Father
30%
Note: Percentages may total to greater than 100 due to rounding.
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
1998
1999
2000/01
2001/02
2002/03
2003/04
Year
Entered
Disposed of
page 62
Appendix 2: Statistics
Figure 9.2
Applications Entered & Disposed of in Family Care Centres
350
300
250
200
Applications
150
Number of
100
50
0
1998
1999
2000/01
2001/02
2002/03
2003/04
Year
Entered
Disposed of
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
1998
1999
2000/01
2001/02
2002/03
2003/04
Year
Entered
Disposed of
page 63
Appendix 2: Statistics
Figure 10
Orders & Disposals
3500
3000
2500
2000
Applications
1500
Number of
1000
500
0
1998
1999
2000/01
2001/02
2002/03
2003/04
Year
Parental Responsibility
Contact: Permission
Residence
Care
page 64
Notes
page 65
Notes
page 66
The Children Order
Advisory Committee
Fifth 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 www.courtsni.gov.uk
October 2004
Ref: 179/2004
