The Children Order Advisory Committee
Ninth Report

Contents

Foreword

This, the 9th Annual Report of the Children Order Advisory Committee (COAC) relates to the period from 1 April 2007 to 31 March 2008. Ten years have elapsed since the enactment of the Children (Northern Ireland) Order 1995 but the continued existence of COAC remains nonetheless invaluable, not perhaps so much for the purpose of advising Ministers on the progress of Children Order cases through the court system as for the other main purpose for which it was created, that of promoting a commonality of practice across the three tiers of family courts and also much else besides.  Having come in January 2007 to the work of the High Court Family Division with no prior experience of the children’s aspect of its work either as Judge or before that as a Barrister, I can freely attest to the particular difficulties, the worries and indeed the loneliness of trying hard to get matters right for children and their families. The work is challenging and without any objectively ascertainable “right answers”, practical experience in the area inevitably counts for a great deal.

I have therefore been immensely grateful to be able to rely upon the willing support and guidance of my more experienced judicial colleagues in every tier and also upon the help provided by those from the many other disciplines and backgrounds (as may be seen from the list at Appendix 1 to this Report) represented on COAC whose breadth of knowledge and variety of experience have individually and collectively cast light for me in what were beforehand the darkest of corners.

Quite apart from those of the particular activities of COAC during the year under report that are described in the pages that follow, the opportunity for its members to exchange, whether within or outwith the framework of our  formal meetings, varying views and experiences from their differing perspectives is an invaluable resource not only to me in particular but also to its wider membership and I am in no doubt that our respective practices benefit greatly from the opportunities for “cross-fertilisation” that COAC provides.

Equally importantly, the many strategic contacts made under the aegis of COAC are invaluable in smoothing out quickly and by informal means the practical problems that sometimes arise between our various areas of work as and when they arise. For my own part, the willingness of COAC members to readily share their knowledge has so far, prevented my falling into too many of the concealed traps that children’s law and practice conspire to lay for the unwary and for that too I am grateful.

I conclude by commending this Report to you and by warmly thanking our joint secretaries Austin Harper of NI Court Service and Audrey Quigley of DHSSPS, for continuing with quiet industry to employ their encyclopaedic knowledge and unfailing efficiency in the interests of COAC. Everyone associated with COAC will agree that it would be much the poorer without them.

The Honourable Mr Justice Weir
Chair of the Children Order Advisory Committee

The Children Order, The Courts and The Committee

The Order

The Children (Northern Ireland) Order 1995 (‘the Order’) 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:

Court proceedings under the Order are known as ‘family proceedings’. The term also encompasses a range of proceedings under other legislation including:

The main court orders available under the Order are set out below under the broad headings of Private Law and Public Law. Orders concerning financial matters are not included:

Private Law


Public Law

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 four family care centres, situated in Belfast, Craigavon, Dungannon and Londonderry.

Family Proceedings Courts – these courts are constituted as juvenile courts presided over by a resident magistrate (with effect from 01 June 2008 this title changed to District Judge (Magistrates Court)) who sits with two lay magistrates. There are seven family proceedings courts – one for each county court division and they exercise jurisdiction throughout the division in which they are situated.

The concurrent jurisdiction referred to above is regulated to ensure that children’s cases are heard at the appropriate level of court 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 under the Children Order are to be commenced in the family proceedings court. This is also the case with free standing 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 at that court.

The Committee

In recognition of the importance of the Order to children and their families, COAC was established:

COAC is chaired by the Judge of the Family Division of the High Court of Justice in Northern Ireland and its membership reflects the 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.

Work of Sub-Committees during 2007/08

Best Practice

The aims and objectives of the COAC Best Practice Guidance (BPG) are:

It is essential to have the contents of the Guidance reviewed on an ongoing basis to ensure it accurately includes legislative reform, relevant case law and changes in policy and procedure.

A number of sections of the BPG have been revised or created.  The main alterations and insertions include:

These amendments or additions were highlighted to the professions by various means including five multidisciplinary workshops (organised by NIGALA), publication on NIGALA website and notification to The Law Society and The Family Bar.

In addition, an independent survey of the effectiveness of the current BPG was undertaken by the Institute of Child Care Research, Queen’s University, Belfast.  The findings, set out in a report produced in July 2008 are very informative and shall be of enormous assistance to the BPG review committee in the exercise of all future amendments to the Guidance.  The report’s recommendations also raise issues to be considered by all professions using the BPG, including awareness raising of the existence of the Guidance to enhance its effectiveness.  The Institute of Child Care Research recommendations include:

  1. Clarification of the aims and objectives of the Guidance
  2. Definitions for key concepts (e.g. ‘timely’; ‘no delay’)
  3. Promotion of an awareness of Guidance to all professional groups, in particular social workers
  4. Promotion of greater use e.g. by reviewing the format and language of the Guidance
  5. An ongoing programme of inter-disciplinary training
  6. (a) Specific suggestions for amendment/addition
    (b) Establishment of an Independent Multidisciplinary Review Group to regularly assess and monitor and to provide a systematic method for regular update

Changes within the practice of family law and child protection are significant and continue to grow.  There are many issues on the horizon to be considered by the Committee including the Public Law Outline in England & Wales, review of Child Protection Policies and Procedures, the role of child contact centres, mediation and court children’s officers within the family courts.  It is important that the arrangements for carrying out the ongoing review are robust, multidisciplinary and effective.  Such arrangements themselves are not above scrutiny and to that end, current arrangements for publication and training in respect of the Guidance are under review.

Much work has been done on the drafting of revisions to the BPG and consideration is now being given to whether the Guidance should continue to be provided in hard copy format or whether it might be more readily and regularly updated and also made more accessible to users by a change to an electronic format.

Multi-disciplinary literature

The sub-committee produced two editions of the Newsletter during the period covered by this report.  It is gratifying that the publication continues to receive such a positive reception.

The membership encompasses all the disciplines involved in work under the Children Order and all are well known in their fields. Currently, members produce all the material for the Newsletter but we are anxious that others have the opportunity to inform and comment.  However, we still see contributions by the sub-committee as being the core of the publication.

The sub-committee is content that a production rate of two or three editions a year is appropriate.  Any more frequent and it may be difficult to produce enough sufficiently strong material for each edition; any less frequent and the material may be stale by the time it is published.

The question of distribution is always at the forefront of deliberations and the sub-committee would be receptive to notification of any perceived gaps in this area.

The Newsletter can be accessed via the Northern Ireland Court Service website www.courtsni.gov.uk.  From the home page, select “Publications” and then from the list on the left side of the screen, select “Family Law and Childcare Literature”; the various editions of the Newsletter are displayed in date order.

Secure Accommodation

As reported in the 8th Annual COAC Report, the sub-committee’s deliberations in relation to the use of TV live link in applications for secure accommodation under Article 44 of the Children (Northern Ireland) Order 1995 (‘the Order’)  have all but been completed.

Whilst appreciating that such is the seriousness of the restriction of liberty on a child or young person imposed by a civil court, that an amendment to the primary legislation would be required to permit use of TV live link in secure accommodation applications under Article 44 of the Order, the committee nonetheless concluded that overall, the responses to its consultation were positive about the use of TV live link in cases where, after completion of a suitable assessment of risk it was deemed necessary to retain the young person in secure accommodation at that time.

It was recognised that the young person’s participation via TV live link rather than attending in person would only be permitted by the court in exceptional cases, where the risks necessitated and indeed justified such alternative arrangements having to be made.  The committee’s recommendation proposes that ultimately the court must grant leave for the young person’s attendance in person to be substituted by participation via TV live link.  All those consulted felt that TV live link was a better alternative in cases involving risk than family court sittings within secure accommodation premises.

Consequently, this may be a matter of interest to the Northern Ireland Law Commission for its First Programme of Law Reform and to DHSSPS, Child Care Policy Directorate.

Work of Family Court Business Committees during 2007/08

Belfast

This Committee met on five occasions during the year and continued to widen its membership to ensure that a broad range of interests are represented across the statutory and voluntary agencies.  A number of issues were considered by the Committee during the year including:

Referrals to Child Contact Centres

The co-ordinators of various child contact centres had expressed concern that parents, both those with residence and the absent parent, were attending at contact centres without the centres having advance indication of their attendance.  A referral form and Protocol were agreed with the Northern Ireland Network of Child Contact Centres and have been implemented throughout Northern Ireland.  Contact details of all Northern Ireland centres were circulated by the Committee to interested parties.

Allocation of Proceedings

The Committee discussed the issue of ensuring that cases were heard at the appropriate court level and that where the circumstances of a case necessitated transfer, such transfer should occur without delay.

Technology

The Committee oversaw the introduction of television live link technology to one courtroom in Belfast Family Care Centre.  The technology enables experts outside Northern Ireland to give evidence from their own locations.  This has increased the pool of available experts and hopefully will reduce costs.

Integrated Court Operating System

This Northern Ireland Court Service business system was bedded down throughout the family courts during the year.  The Committee were kept informed of developments in this area and any problems that arose were noted and dealt with as far as possible within the Committee’s remit.

Article 4 Welfare Reports

There has been a continuing problem where cases have to be adjourned because reports are not filed on time.  A log has now been established in both the family care centre and family proceedings court to identify failure to comply with time limits specified in court directions.  It is hoped that this will reduce the need for further adjournments due to this particular reason.

Agreement of Expert Fees with the NI Legal Services Commission

Another area of concern that had been expressed by the solicitors on the Committee was that there was often considerable delay in the approval of expert witness fees by the Legal Services Commission.  This in turn resulted in delay in the disposal of cases.  Two meetings were held with the Commission and a streamlined process was agreed.  It is hoped that this will address this issue and as such, the matter will be kept under review.

Two presentations were given to the Committee during the year.  The first was by a representative of Family Mediation NI who spoke to ‘A Vision for Family Mediation in Northern Ireland’.  Later in the year Master Wells gave an address on COAC Best Practice Guidance.  Members found both presentations to be extremely informative and useful.

Craigavon

Craigavon Family Court Business Committee covers a wide geographical area, taking in the petty sessions districts of Craigavon, Lisburn, Armagh, Banbridge and Newry & Mourne which make up the County Court Divisions of Craigavon and Armagh & South Down.

A major focus of the Committee has been on the need for more contact centres and it is therefore very pleasing to report that following the availability of funding in the spring of 2008, two contact centres have now been established. The Newry centre (run by Barnardo’s) is based in the Family Resource Centre at Lisdrum House; the Craigavon service (run by Zero-8-Teen) is situated in Moylinn House.  Contact sessions are expected to commence in October when staff will be in post.

Other issues which have been discussed by the Committee include:

The use of mediation at an early stage following parental separation, to prevent the development (in the parent with whom a child resides) an attitude of implacable hostility to contact:

The need for the availability of supervision for contact visits in some Private Law cases:

The future of Cloona Contact Centre:

The Committee recorded its concern about the lack of appropriate provision for family cases being heard at Lisburn Family Proceedings Court.  The absence of adequate accommodation at this very busy court venue to enable parents and their legal representatives to consult in private or to facilitate mediation by the court welfare officer was seen as a significant problem.

The Committee was delighted by the response from the Northern Ireland Court Service to this concern.   All consultation rooms at Lisburn were sound-proofed and redecorated.  Planning permission is also being sought for the erection of an additional temporary structure to house three further consultation rooms.

Dungannon

The Committee met on two occasions within this period. It reported that:
The family court system continues to function at an adequate level within the Division of Fermanagh & Tyrone with no substantial issues to highlight.

However, the lack of coterminosity between the jurisdiction of the Northern Health and Social Care Trust, Southern Health and Social Care Trust and the County Court Division is particularly acute in the east of the Division.

As court welfare officers are employed by individual Health and Social Care Trusts and are accountable to their employers, the issue will remain a problem until such times as the Trust agree to appoint, on a joint basis, one officer.

Londonderry

Unfortunately, this year the Family Court Business Committee continued to deal with familiar problems in relation to delay. 

The general view of the Committee was that there were too few experts willing to undertake the work in the jurisdiction and those that did were overworked thus proving it difficult to meet court timetables. 

Northern Ireland Guardian ad Litem Agency (NIGALA) provided the Committee with a list of experts in the following categories/fields:  Child Psychologist, Senior Clinical Psychologist, Child/Adolescent Psychologist, Consultant Clinical Psychologist and Hearing Disability.  The list included experts from England and Scotland and would be regularly updated by NIGALA. 

Northern Ireland Court Service undertook to provide this list of experts to the Chair of the Solicitor’s Association within the Division for circulation to members. 

The issue of ‘attachment’ experts was also discussed by the Committee.  It was considered that Guardian ad Litems (GALs) or independent social workers should be able to carry out assessments in respect of the less complex cases.  Indeed it was the experience of judicial members of the Committee that on occasions, reports that were obtained seemed to state the obvious. 

NIGALA advised that attachment is a specialist area but that training for GALs is currently being planned. 

Foyle Child Contact Centre has now become well established and efforts continue to ensure that it operates in conjunction with the court.  The Committee agreed that the referral forms that had been previously introduced were working well.  It was further agreed that if appropriate contact was not developing within the setting of the Contact Centre that the parties would be informed and the case referred back to court.    If the Centre was unable to make progress with the parents in advancing contact for the child, alternative options could be identified and investigated at an early stage.  Social Services agreed to consider what facilities they might be in a position to provide in order to progress such difficult contact cases. By adopting such an approach, the limited resource available within the Contact Centre should be utilised to best effect.

The Committee also warmly welcomed and supported reports that a Contact Centre was being planned for the Limavady area.  Funding was also discussed and this year it was again decided to run an Autumn Ball.  This year the proceeds were divided between Foyle Child Contact Centre and Foyle Search and Rescue Centre. Nevertheless over £4000 was raised for the Contact Centre.

Issues Considered/Addressed by the Committee during 2007/08

Article 4 reports

Under Article 4(1) of the Children (Northern Ireland) Order 1995:

"A court considering any question with respect to a child under this Order may ask an authority to arrange for a suitably qualified person to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report."

In 2006, from discussions at the four Family Court Business Committees (FCBCs) it became apparent that in some areas it was taking an increasing amount of time to deliver such reports to the courts, particularly in Private Law cases. Therefore, at the behest of the Advisory Committee, each FCBC chair (through their local court administrator) has since provided regular updates to COAC on the issue.

The purpose of such updates is to provide detailed factual information over a specified period (presently 2 months) for each family court venue on the number of Article 4 reports:

FCBCs have been invited to include the issue as a regular agenda item at their meetings where specific questions on the information supplied could be addressed to the local court administrators, such as the average time taken to secure an Article 4 report in their business area.  Also, the local court administrators would have the opportunity to highlight any case(s) where a report is taking an inordinate time to complete. The matter could then be referred to the director of the relevant Health and Social Care Trust in order that any perceived gaps in the service provided could be identified and addressed by them.

The updates are forwarded to the COAC Secretariat (Northern Ireland Court Service); the information supplied forms the basis of a composite report which is delivered at each meeting of the Advisory Committee as a standing item on the agenda. (See Appendix 3 for information collated for the period 01 April 2007 to 31 March 2008).

Court welfare officers

At the COAC meeting in September 2007, the existing service provided by Court Welfare Officers was discussed. Inconsistencies in delivery of the service were identified across Northern Ireland. 

COAC was advised that £120K had been provided by the Children & Young People’s funding package to support the further development of the service.

The Committee agreed that a group should be convened through the Association of Directors of Social Services (comprising representatives of the five Health and Social Care Trusts) to consider how best to use the new monies to address the acknowledged short fall in the service.  The group sought to utilise the new investment to remedy some of the acknowledged weaknesses within the operation of Private Law from both the Trusts and courts perspective.

The group took an initial view that staff working in this service should be referred to as Court Children’s Officers (CCOs); this appeared to reflect the focus of their work.

The group agreed the following principles:

The group reviewed existing arrangements, response times, protracted cases, mediation and contact with children, reporting arrangements and the existing caseloads of CCOs.

A number of options were considered as to how best to invest the funding. As each Trust has a statutory duty to provide Article 4 welfare reports, it was felt the resources should be used to build upon existing teams.

The long term aim is to ensure that each Trust has an appropriately resourced team to better discharge statutory functions and more effectively meet the needs of the court.

However, as this current investment would not fully meet the long term aim, the modernising of the service must ensure it has the potential to facilitate staff working across Trust boundaries where the court’s boundary extends to more than one Trust area.

The group made the following recommendations:

  1. Utilising the £120k investment, three additional CCOs should be appointed; one for each of the following Trusts – Belfast, Western and Northern.
  2. These new appointees (at senior practitioner grade) should provide a service beyond their employing Trusts’ boundaries to reflect the investment which other Boards’ have made to establish a more responsive service.  The Belfast appointment would benefit both South Eastern and Northern Trust populations.  The Western appointment would benefit both Southern and Northern Trust populations.
  3. Currently, CCOs are graded as social workers, senior practitioners and senior social workers.  There is a need for standardised grading system to reflect the nature of their task.  A common job description, job evaluation and grading should be implemented across Trusts.
  4. The courts could consider developing guidance on the use of verbal and written reports.  Where a written report is requested, it would assist CCOs if there could be greater clarity regarding the focus of the report.
  5. The courts and the Trusts should look at improving accommodation or access to facilities for CCOs.  An appropriate environment would assist them in undertaking work which is often sensitive.
  6. Issues relating to managing parental conflict and protracted Private Law situations could be addressed by establishing additional resources to target more timely child-focused resolutions in partnership with the court.
  7. DHSSPS, Office of Law Reform and Northern Ireland Court Service should continue to seek additional resources to develop an adequately resourced CCO service.
  8. Where cases require family and childcare intervention across Trust boundaries, a clear protocol needs to be in place in relationship to onward transfer of cases and access to services.

The group’s report was received by the Committee in January 2008.  The new CCO posts were to be in place by Autumn 2008.  The Committee also suggested that as a next step, a protocol should be drawn up to include:

The group has reconvened to undertake this assignment.

Educational needs of looked-after children

Research undertaken by the Looked After Children in Education (LACE) Project in Northern Ireland (established in 2001) led to the conclusion that:

"professionals did not always have appropriate information to assist young people to access services and that education is not given a high enough priority for looked after children" and that there was a need for "a strategic and coherent regional framework supporting the education of looked after children and young people".

In England & Wales, evidence about the educational under-achievement of looked-after children was one of the factors which led to the amendment to section 22 of the Children Act 1989 effected by section  52 of the Children Act 2004. This provides that:

"The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child's educational achievement."

In order to achieve a similar goal in respect of looked-after children in Northern Ireland, it has been agreed in principle that the “Education” section in the Care Plan for each looked-after child should be much more comprehensive than at present. 

A proforma[1] for this “Education” section has been reviewed by COAC. Following discussions involving representatives of the judiciary, the Department of Health, Social Services & Public Safety, the Department of Education, the Health & Social Care Trusts and the Education & Library Boards, a pilot scheme is to be carried out to gauge the effectiveness of the proforma.  This pilot, scheduled to take place in October 2008 involves a number of Public Law cases from each of the Health & Social Care Trust areas.

Following any amendments in the light of the pilot scheme, it is hoped that the proforma would be finalised by the end of 2008 and integrated as part of the UNOCINI[2] initiative.

Electronic communications

As highlighted by the HM Revenue and Customs benefit record loss and a number of similar incidents recently, there is an obligation on all involved in the family justice system to ensure that the correct procedures for information security are followed. Particular care needs to be taken when transferring or transporting data, whether electronically (including email) or by paper, internally or externally and having regard to the amount and type of data and the potential harm that could result from unauthorised disclosure.

Against this background, the Secretariat was tasked with seeking inter alia information/clarification on how case specific information[3] might be shared electronically between the Northern Ireland Court Service (‘the Court Service’) and the various participants engaged in that case.

A range of procedures and controls already exist within the Court Service to help to protect information and data. These cover physical countermeasures such as access controls but also include policies, procedures and guidance for staff.

The Children (Northern Ireland) Order 1995 and the Administration of Justice Act 1960 restrict disclosure of information in proceedings in which children are involved.  The disclosure of information by the Court Service may also engage the rights of individuals as data subjects under the Data Protection Act 1998.

Case Based Information

In relation to the sharing of information in specific cases, a pilot was conducted between Belfast Family Proceedings Office and Northern Ireland Guardian Ad Litem Agency Headquarters. This entailed the court office notifying the Agency by email of the appointment of Guardian ad Litems (GALs) and the termination of such appointments in Public Law cases. The Agency reciprocated by advising as to the allocation of particular GALs and legal representatives to specific cases and those GALs filing their reports by email, subject to judicial direction. The pilot has subsequently been extended to all family court offices.

In England & Wales, similar problems have been experienced in relation to the electronic sharing of information particularly with organisations or bodies outside the Government Secure Internet (GSi). This has resulted in the creation of the Criminal Justice Secure eMail (CJSM) facility.  This allows the exchange of email at a ‘RESTRICTED’ level between criminal justice organisations and partner organisations such as law firms.  A request has been made by the Court Service to gain access to this packaged solution designed to deal with precisely the problems that have been encountered. It should result in a much more cost-effective solution delivering secure email functionality with those outside the GSi than would be the case if the Court Service was to implement a bespoke solution.

The Court Service IT network is accredited on an annual basis for the processing of ‘RESTRICTED’ information.  ‘RESTRICTED’ is a protective marking which is determined by the sensitivity of the information and the potential consequences that might result from it falling into the wrong hands.  This position facilitates access to secure intranet services such as GSi, Causeway and Public Services Network (Restricted).  As a general rule all the Court Service information is treated as baseline ‘RESTRICTED’ and protected accordingly.

The Court Service is therefore governed in how it deals with ‘RESTRICTED’ information by the HM Government Protective Marking Scheme (GPMS) which forms part of the Cabinet Office Manual of Protective Security (MPS).  This is a government-wide policy that ensures consistency of handling of sensitive public sector information.  This establishes the operating parameters within which the Court Service must operate.

The MPS clearly states that ‘RESTRICTED’ information cannot be emailed across the internet without some form of approved encryption being applied.  This is quite simply to stop people reading the information as it is passed from server to server, potentially across the world. The Court Service has an obligation to ensure that these standards are applied.  Recent changes in telephone policy also rule out the use of fax as an option for transmitting ‘RESTRICTED’ information.

Work on the service of documents by electronic means more generally is ongoing both for summonses and other court papers; this work would also apply to family courts subject to the constraints mentioned earlier.

Emergency protection orders

In the 7th Annual Report attention was drawn to a judgment of the Omagh Family Proceedings Court, A Trust v M [2005] NIMag4. This had highlighted a number of issues in respect of applications for emergency protection orders (EPOs) under Articles 63 and 64 of the Children (Northern Ireland) Order 1995, most especially in those cases where the application was made out of hours, at the home of a lay magistrate.

During the year now under review, a sub-committee was established comprising representatives of the judiciary, the Northern Ireland Court Service, the Northern Ireland Guardian Ad Litem Agency and Social Services.  Its remit was to review the issues raised in the judgment and to consider what changes in practice were required in order to address these. 

The following recommendations of the sub-committee have been adopted by COAC:

  1. Northern Ireland Court Service should review the training of those clerks participating in the Children Order on-call duty rota. This should be aimed at avoiding confusion between the bare decision by the lay magistrate or District Judge (Magistrates’ Court) (DJ(MC)) to afford an appointment to Social Services on the one hand and the substantive determination as to whether leave should be granted to have the application heard without advance notice to the family.

    One welcome development in this respect is that the Judicial Studies Board has already taken steps to amend the form used by the DJ(MC) or lay magistrate to record the reasons for making that particular decision. 
  2. The Court Service in consultation with DJ(MC)’s should explore the feasibility of having the professional judiciary participate in the out-of-hours service. The sub-committee felt that the practice of the Court Service in approaching only lay magistrates to establish who might be available to deal with the application was merely a convention and that it was desirable that DJ(MC)’s should also be approached.  To that end, DJ(MC)’s should now be supplied with the EPOs pack (currently available to lay magistrates) which includes the documentation used to record the process.
  3. Health & Social Care Trusts and the Legal Services Directorate should be asked to review practice in regard to the supply of legal representation in applications for EPOs outside office hours.  It seems to be almost universal practice that legal representatives do not accompany social workers in applications which are made outside normal office hours.    This is contrary to legal principles.
  4. Out-of-hours applications for EPOs should be heard in court buildings, rather than in private homes.
  5. The Court Service should consider the electronic recording of evidence taken in all EPO applications. This would be the most efficacious way of securing observance of the important principle that a party who was not afforded the opportunity of attending the process should at least be afforded a reliable and sufficient account of the evidence which was relied on.
  6. COAC should consider ways of disseminating guidance to both lawyers and social workers as to when it is appropriate to notify other parties of an intended application and on the legal position which limits the jurisdiction of either lay magistrate or DJ(MC) when sitting out of petty sessions to hear applications without notice to the family (because of urgency).
  7. Rules of Court should be amended to enable a lay magistrate dealing with an out-of-hours application to appoint a Guardian Ad Litem (GAL) if s(he) thinks it appropriate in the circumstances of a case.  Until now, there has been avoidable and unnecessary delay in having a GAL allocated in such circumstances as the case papers have had to be referred to a DJ(MC) for the appointment of a GAL.

Expert fees and the legal services commission

In response to concerns voiced by representatives of various bodies on the Committee in relation to delay in the payment of expert fees in Children (Northern Ireland) Order 1995 cases, a meeting was convened with senior representatives of the Legal Services Commission (LSC).

Essentially, this was to discuss the development of a proforma (which would accompany a C2 application) to be considered and if approved, by the judge determining the application, duly endorsed to that effect and returned to the applicant for onward transmission to the Commission.

Representatives of LSC were impressed by this initiative and any intervention which would expedite the production of all necessary information to enable them to make an early decision in respect of approval or otherwise of an expert’s fee.

In 2008, the LSC increased the limit of its delegated authority for Assessing Officers up to £100 per hour for any experts fee, up to a maximum of £20,000; requests for authority above this amount are referred to an Assessment Committee for consideration.

Video conferencing

Rules to permit video conferencing in all family courts are now in operation and a Guidance Note was endorsed by the Family Judge on 19 November 2007.

Video conferencing is used extensively in the higher courts to assist witnesses from other jurisdictions to give their evidence.  In particular expert witnesses find this means of tendering their evidence to be most helpful; it encourages experts from outside the jurisdiction to accept instructions; it saves the expert witness travel time and it reduces costs.  Video link is also used by expert witnesses in this jurisdiction who practice outside the greater Belfast area.

Video conferencing is also used in family courts as a means of special measures for vulnerable witnesses, involved in domestic violence or alleged abuse cases. 

It may be possible to make further use of video link facilities, such as non-molestation applications by minors.

A full copy of the Guidance Note is available at www.courtsni.gov.uk by following the links to ‘Publications’, ‘Judicial Decisions’ and then ‘Practice Directions’.

Appendix 1

The Membership of the Committee (1st April 2007 to 31st March 2008)

Chair

The Honourable Mr Justice Weir High Court Judge (Family Division) High Court of Justice in Northern Ireland

Vice Chair Designate

The Honourable Mr Justice Morgan
(from 17/01/08)
High Court Judge (Family Division) High Court of Justice in Northern Ireland

Members

His Honour Judge Rodgers County Court Judge and Family Judge of the Belfast Family Care Centre
Her Honour Judge Philpott QC (replaced by His Honour Judge Marrinan from 17/01/08) Recorder of Londonderry and Family Judge of the Londonderry Family Care Centre
Her Honour Judge Loughran County Court Judge and Family Judge of the Craigavon Family Care Centre
His Honour Judge McFarland County Court Judge and Family Judge of the Dungannon Family Care Centre
Master Wells Master of the Office of Care and Protection, High Court of Justice in Northern Ireland
District Judge (Magistrates’ Court) Meehan Council of District Judges (Magistrates’ Court) Northern Ireland
Mr Ronnie Williamson Executive Director of the Northern Ireland Guardian Ad Litem Agency
Mrs Janet Leckey Chair of the Northern Ireland Lay Magistrates Association
Mr Fergal Bradley Head of Child Care Policy Directorate, DHSSPS
Mr Paul Martin Chief Officer, Office of Social Services
Mrs Catherine Dixon Solicitor
Mr Cecil Worthington (replaced by Mr Brian Dornan from 13/09/07) Representative of the Association of Directors of Health & Social Services Board
Mr Hugh Connor Director of Social Services, Eastern Health & Social Services Board
Mrs Gillian McGaughey Barrister at Law
Mrs Wendy Beggs (replaced by Ms K Minnis from 17/01/08) Directorate of Legal Services, Central Services Agency
Miss Brenda Donnelly Official Solicitor to the Supreme Court
Mrs Laura McPolin Civil Law Reform Division, DFP
Mr Eric Strain (replaced by Mr Chris Heatley from 13/09/07) Northern Ireland Court Service
Ms Tara Caul (replaced by Ms K Stevenson from 17/01/08) Children in Northern Ireland
Mrs Audrey Quigley (DHSSPS)}
Mr Austin Harper (NI Court Service)}
Secretariat

Appendix 2

Statistics

The statistics which form the basis of the tables and figures in this appendix are collected from the Children (Northern Ireland) Order 1995 (‘the Order’) business in all the courts in Northern Ireland. Except where otherwise indicated, all figures and tables cover the financial year 2007/08[4]

Wardship Actions

At the time of introduction of the 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 Order. Since its introduction, wardship actions have remained at a consistently low level with no significant change observed in recent years (Table 1) since the sharp decrease following the introduction of the Order (Figure 1).

Table 1: Wardship Actions (April 2003 – March 2008)

Wardship Actions 03/04 04/05 05/06 06/07 07/08
Non- Emergency 2 2 1 16 2
Immediate Provision 15 15 17 1 11
Jurisdiction 0 2 1 0 1

Figure 1: Wardship Actions (Trend statistics 1995 – 2007/08)

95 96 97 98 99 00 00/01 01/02 01/02 02/03 03/04 04/05 05/06 06/07 07/08
Non emergency 140 135 7 3 1 0 0 4 4 9 2 2 1 16 2
Immediate provision 182 126 1 1 3 0 8 7 7 13 15 15 17 1 11
Jurisdiction 85 51 0 6 14 0 16 8 8 1 0 2 1 0 1

Applications and Disposals

Tables 2a and 2b show the number of applications lodged and disposed of in all court tiers for 2007/08. Applications lodged out-numbered disposals causing an increasing number of outstanding applications.  For a breakdown of applications received and dealt with by the Family Care Centres and their related courts, please see Tables 8 and 9.

Table 2a: Applications 01/04/07 – 31/03/08

Applications High Court County Court Magistrates' Court Total
High Court Care Centre Other FPC Other
Public Law 25 28 0 431 0 484
Private Law 158 146 0 3242 0 3546
Total 183 174 0 3673 0 4030

Table 2b: Disposals 01/04/07 – 31/03/08

Disposals High Court County Court Magistrates' Court Total
High Court Care Centre Other FPC Other
Public Law 42 86 0 426 0 554
Private Law 120 227 0 2635 0 2982
Total 162 313 0 3061 0 3536

Figure 2 shows the number of applications lodged and disposed of each year since 2003.

Figure 2 Applications Lodged and Disposed of (April 2003 – March 2008)

Year Lodged Disposed of
2003/04 6534 6154
2004/05 5897 5624
2005/06 5939 5683
2006/07 5211 4875
2007/08 4030 3536

During 2007/08, 12% of applications lodged concerned Public Law and 88% concerned Private Law.  In terms of disposals, 16% of applications disposed of concerned Public Law and 84% concerned Private Law (See Figures 3a & 3b).

Figure 3(a)  Applications Lodged (April 2007 – March 2008)

Percentage
Public Law 12%
Private Law 88%

Figure 3(b) Applications Disposed of (April 2007 – March 2008)

Percentage
Public Law 16%
Private Law 84%

The following graphs depict applications lodged and disposed of in each year from 2003/04 to 2007/08 by the type of orders made.

Figure 4a depicts the number of applications for supervision orders lodged and disposed of. Figures show that these orders have remained relatively steady over the past five years.

Children Order Public Law Applications Lodged and Disposed of  

(April 2003 - March 2008)

Figure 4(a)

Year Lodged Disposed of
2003/04 21 31
2004/05 29 30
2005/06 12 12
2006/07 31 18
2007/08 12 29

Figure 4b depicts the number of applications for care orders lodged and disposed of. Figures show that these orders have shown a downward trend over the past five years. Figures overall have decreased by 45% for care applications lodged and 37% for such applications disposed of.

Figure 4(b)

Year Lodged Disposed of
2003/04 526 409
2004/05 415 365
2005/06 357 306
2006/07 336 240
2007/08 287 259

Figure 4c depicts the number of applications for emergency protection orders (EPOs) lodged and disposed of. Figures show that these orders have shown a downward trend between 2003 and 2006 and then an upward motion in 2007. Overall, the numbers of applications for EPOs lodged and disposed of are relatively small and any trend should therefore be treated with caution.

Figure 4(c)

Year Lodged Disposed of
2003/04 94 94
2004/05 80 81
2005/06 52 57
2006/07 32 28
2007/08 55 80

In terms of the court tier for lodgments and disposals, figures are depicted below. Figure 4d shows applications lodged and disposed of in the Family Proceedings Court; these have shown a decrease over the past 5 years. 2007/08 figures show a decrease in lodgments (24%) and a decrease in disposals (32%) since 2006/07 in these courts.

Figure 4(d) Applications Lodged & Disposed of in Family Proceedings Court (April 2003 - March 2008)

Year Lodged Disposed of
2003/04 5987 5480
2004/05 5442 5007
2005/06 5451 5200
2006/07 4802 4484
2007/08 3673 3061

Figure 4e shows applications lodged and disposed of in the Family Care Centre; these have remained relatively steady over the past 5 years. 2007/08 figures show a decrease in lodgments (31%) with an increase in disposals (26%) since 2006/07 in these courts.

Figure 4(e) Applications Lodged & Disposed of in Family Care Centre (April 2003 - March 2008)

Year Lodged Disposed of
2003/04 270 256
2004/05 251 328
2005/06 308 317
2006/07 252 249
2007/08 174 313

Figure 4f shows applications lodged and disposed of in the High Court; these have remained relatively steady over the past 4 years. 2007/08 figures show an increase in both lodgments (17%) and disposals (14%) since 2006/07 at this court tier.

Figure 4(f) Applications Lodged & Disposed of in High Court (April 2003 - March 2008)

Year Lodged Disposed of
2003/04 274 411
2004/05 186 274
2005/06 180 166
2006/07 157 142
2007/08 183 162

Care applications & secure accommodation applications accounted for the majority of Public Law orders (60%) in 2007/08 (Figure 5a). Secure accommodation orders in 2006/07 were 8% of all Public Law orders and make up 30% in 2007/08; emergency protection orders in 2006/07 were 3% of all Public Law orders and make up 13% in 2007/08. The percentage of orders classed as ‘other’ has decreased from 50% in 2006/07 to 11% in 2007/08.

Figure 5(a) Public Law Orders Made (April 2007 – March 2008)

Percentage
Care 30%
Supervision 4%
Education Supervision 4%
Emergency Protection 13%
Secure Accommodation 30%
Article 53 Contact 4%
Recovery 4%
Other Orders / Applications 11%

The most common types of order made in Private Law were ‘other orders/applications' (49%) and contact (permission) (28%) (Figure 5b). In 2006/07, contact orders were 54% of all Private Law orders and make up 28% in 2007/08; residence orders in 2006/07 were 31% of all Private Law orders and make up 17% in 2007/08. The percentage of orders classed as ‘other’ has increased from 1% in 2006/07 to 49% in 2007/08.

Figure 5(b) Private Law Orders Made (April 2007 – March 2008)

Percentage
Contact Permission 28%
Contact Refusal 0%
Parental Responsibility 2%
Residence 17%
Prohibitive Steps 2%
Specific Issues 2%
Other Orders / Applications 49%

Transfers

Table 3 shows the number of cases transferred and the reasons for transfer quoted. The most numerous reason given for transfer from the Family Proceedings Court was ‘other’ (45%) while for transfers from the Family Care Centre, the main reasons were complexity and ‘other’ (33% and 56% respectively in 2007/08). During 2007/08 transfers from the Family Proceeding Court to the Family Care Centre made up 81% of all applications transferred.

Table 3: Transfer of Business (Reasons) 01/04/07 – 31/03/08

From Convenience Urgency Gravity Importance Complexity Consolid-ation Other Total reasons[5]
High Court
Chancery 0 0 0 0 0 0 1 1
Wardship & Adoption 0 0 0 0 0 0 6 6
Sub-Total 0 0 0 0 0 0 7 7
Care Centre
Belfast 0 0 1 0 11 2 20 34
Dungannon 0 0 0 0 2 1 1 4
Londonderry 0 0 0 0 4 0 2 6
Craigavon 0 0 0 0 0 2 6 8
Sub-Total 0 0 1 0 17 5 29 52
Family ProceedingsCourt
Ballymena 3 0 2 0 13 4 15 37
Belfast 3 0 0 0 27 3 23 56
Dungannon 0 0 0 0 3 4 5 12
Omagh 0 0 0 0 1 0 0 1
Londonderry 1 0 0 0 18 3 24 46
Newry 0 0 0 0 8 3 17 28
Ards 1 2 0 0 8 9 3 23
Craigavon 1 0 1 0 4 4 11 21
Lisburn 0 0 0 0 10 0 12 22
Strabane 0 0 0 0 0 0 1 1
Coleraine 0 0 0 0 0 1 1 2
Enniskillen 0 0 0 0 0 0 1 1
Antrim 0 0 0 0 0 0 1 1
Sub-Total 9 2 3 0 92 31 114 251
NI - Total 9 2 4 0 109 36 150 310

Disposal Times[6]

Table 4 and Figure 6 show the relative disposal times for both Public Law and Private Law cases in each court tier for 2007/08. In the Family Proceedings Court, average disposal times were 23 weeks for Public Law and 22 weeks for Private Law cases. In the Family Care Centre, it was 44 weeks for Public Law cases and 32 weeks for Private Law cases. Public Law cases in the High Court took 46 weeks and Private Law cases took 41 weeks.  Lodgment to disposal times for Public Law and Private Law cases have decreased by 4 and 2 weeks respectively between 2006/07 and 2007/08 overall.  It should be noted that due to relatively small numbers at the High Court and the Care Centre, it takes very few long cases to substantially affect the average time taken to dispose of cases.

Table 4: Disposal Times 01/04/07 – 31/03/08

Lodged to final hearing times (in weeks) for cases entered in the designated courts
High Court Care Centre Family Proceedings Court Total
Public Law 46.4 44.3 23.0 28.1
Private Law 41.0 32.4 21.9 23.4

Figure 6 Disposal Time in Weeks (April 2007 – March 2008)

Court Type Private Public
All Court Types 23 28
FPC 22 23
Care Centre 32 44
High Court 41 46

Disposal Types

Table 5 shows the distribution of the different types of disposal made for 2007/08.  Consent orders accounted for 42% of orders made.

Table 5: Orders and Disposals 01/04/07 – 31/03/08

Order Made by Consent Other Order Total
Authority to Keep child in Secure Accommodation 117 95 212
C2 Leave Granted to Commence-Final Order 0 13 13
Care Order 77 130 207
Child Assessment Order 0 2 2
Contact Order 1581 586 2167
Contact with a child in Care 0 28 28
Declaration of Parentage 22 15 37
Discharge Care Order 37 15 52
Discharge Emergency Protection Order 3 7 10
Discharge Prohibited Steps Order 0 1 1
Education Supervision Order 0 27 27
Emergency Protection Order (EPO) 15 65 80
Extension of an EPO 10 0 10
Family - Adjourn Generally 0 33 33
Family Assistance Order 0 5 5
Financial Provision 2 1 3
Leave to change surname by which child is known 1 2 3
Leave to remove child from the UK 1 0 1
Leave to Withdraw 0 66 66
Free Text Formal Order 0 2 2
Non-Molestation Order 0 9 9
Order or Directions Final 299 2408 2707
Order Terminating Appointment of GAL 279 141 420
Parental Responsibility Order 129 39 168
Prohibition on Further Proceedings (Art 179(14)) 0 53 53
Prohibited Steps Order 27 97 124
Recovery of a child 4 22 26
Residence Order 936 427 1363
Schedule 1 Financial Provision Direct Payment 0 2 2
Specific Issues Order 76 64 140
Strike Out 0 105 105
Supervision Order 18 11 29
Vary Contact Order 0 6 6
Warrant to Assist Person Authorised by an EPO 1 6 7
Other 0 447 447
Total 3635 4930 8565

In 2006/07, 7899 interim orders were made; the number of interim orders increased by 11% to 8776 in 2007/08.  These were made up primarily of contact, residence and care orders (Table 6).

Table 6: Interim Orders Made 01/04/07 – 31/03/08

Business Interim Order
Parental Responsibility 10
Contact: Permission 4186
Residence 1024
Prohibited Steps 244
Specific Issues 25
Care 3186
Supervision 75
Secure Accommodation 15
Non-molestation 11
Total 8776

Age of Children

Table 7 shows the distribution of children's ages. Just over one third (34%) of children involved in cases were within the 0-4 years old category (Figure 7).

Table 7: Children Subject to Applications

Age and Gender of children involved7: 01/04/07 – 31/03/08
Age Range Number of children in respect of whom orders have been made
0-4 5-8 9-12 13-16
Male 808 679 533 267 2287
Female 774 690 568 335 2367
Unspecified 4 6 8 2 20
Total 1586 1375 1109 604 4674

Figure 7 Age and Gender of Children Involved (April 2007 - March 2008)

Age (Years) Male Female
0 to 4 808 774
5 to 8 679 690
9 to 12 533 568
13 to 16 267 335

Annual Comparisons

Figure 8 presents the number of orders and disposals for 2003/04 to 2007/08.  Parental responsibility disposals decreased by 47% between 2006/07 and 2007/08.  Contact (permission) disposals decreased by 12% between 2006/07 and 2007/08. The number of applications for residence orders disposed of also decreased by 6% between 2006/07 and 2007/08 and care applications disposed of decreased by 8% between 2006/07 and 2007/08.

Figure 8 Orders & Disposals (April 2003 - March 2008)

Year Parental Responsibility Contact Permission Residence Care
2003/04 377 2282 1427 447
2004/05 438 2537 1519 343
2005/06 384 2595 1520 292
2006/07 315 2471 1449 280
2007/08 168 2167 1363 259

Table 8: Business Volume - Care Centres and Related Courts Applications: 01/04/07 – 31/03/08

Public Private Total
Belfast
Care Centre 18 42 60
County Court 0 0 0
Family Proceedings Court 210 1732 1942
Magistrates' Court 0 0 0
Total 228 1774 2002
Dungannon
Care Centre 3 11 14
County Court 0 0 0
Family Proceedings Court 58 248 306
Magistrates’ Court 0 0 0
Total 61 259 320
Londonderry
Care Centre 1 3 4
County Court 0 0 0
Family Proceedings Court 26 438 464
Magistrates' Court 0 0 0
Total 27 441 468
Craigavon
Care Centre 6 90 96
County Court 0 0 0
Family Proceedings Court 137 824 961
Magistrates' Court 0 0 0
Total 143 914 1057

Table 9: Business Volume - Care Centres and Related Courts Disposals: 01/04/07 – 31/03/08

Public Private Total
Belfast
Care Centre 53 88 141
County Court 0 0 0
Family Proceedings Court 246 1431 1677
Magistrates' Court 0 0 0
Total 299 1519 1818
Dungannon
Care Centre 5 18 23
County Court 0 0 0
Family Proceedings Court 46 196 242
Magistrates' Court 0 0 0
Total 51 214 265
Londonderry
Care Centre 5 15 20
County Court 0 0 0
Family Proceedings Court 26 320 346
Magistrates' Court 0 0 0
Total 31 335 366
Craigavon
Care Centre 23 106 129
County Court 0 0 0
Family Proceedings Court 108 688 796
Magistrates' Court 0 0 0
Total 131 794 925

Appendix 3

Article 4 Reports – Overview (1st April 2007 to 31st March 2008)

Court Location New Reports requested in period Outstanding Reports to be filed in period New Reports to be filed in period Reports Actually Filed Extensions sought in period Otherwise Accounted For
Belfast
FPC & FCC
192 153 49 163 46 22
Ballymena
FPC
83 77 10 74 14 9
Londonderry
FPC & FCC
33 40 13 33 16 10
Dungannon
FPC & FCC
37 58 6 39 26 8
Newry
FPC
59 59 11 49 29 11
Newtownards
FPC
125 194 35 115 123 43
Craigavon
FPC & FCC
36 54 3 29 23 14
Lisburn
FPC
11 16 2 8 9 1
High Court 27 24 7 20 13 2
TOTAL 603 675 136 530 299 120

NB: More than one extension of time for the presentation of the Report to the court can be applied for



Footnotes

  1. [1] A copy of the proforma is available on request to the COAC secretariat (DHSSPS)
  2. [2] A common assessment form ‘Understanding the Needs of Children in Northern Ireland’ for understanding and meeting the needs of vulnerable children in Northern Ireland
  3. [3] For the purposes of this paper, case specific information is defined as Article 4 reports, Guardian ad Litem reports and skeletal arguments.
  4. [4]Prior to 2007/08 there may be more than one application per child and more than one child per case; in 2007 a new computer system was introduced therefore caution should be used when comparing figures prior to 2007.
  5. [5]There may be more than one reason given for transfer of a case.
  6. [6]Disposal times include the time spent at other court tiers before determination.
  7. [7]Includes children not subject to an application disposed of.