Guide to Case Management in Private Law Proceedings

1.1     The object of this Guide (“the Object”) is to provide an effective means of managing the conduct of proceedings in which an application is made for an order under the provisions of Part III1 of the Children (Northern Ireland) Order 19952 (“the Order”) and under Article 7(1)(c) of the Order3, by a person who is not an “authority”4 within the terms of the Order, which:

  1. is consistent with the contents of Article 3 of the Order5;
  2. is consistent with the overriding objective set out in Order 1 rule 1A of the Rules of the Court of Judicature (Northern Ireland) 19806;
  3. promotes a consistent and predictable approach in all courts dealing with such proceedings;
  4. identifies the substantive issues at as early a stage as possible and encourages the prompt resolution of such issues in a just manner either by agreement or by trial;
  5. promotes the recording of core information in an efficient manner and in an accessible form.

1.2     This Guide applies to all proceedings under the Order of the nature specified in paragraph 1.1 above issued on or after 1st. March 2013.  A court may decide to apply any of the provisions of this Guide to proceedings issued before that date where it considers that to do so would further the Object.  In so far as is practicable a court may apply it to all other private law proceedings.

1.3     In some cases a court may decide to depart from the provisions of this Guide in the best interests of the child or children concerned in the proceedings but should record why it has done so.

1.4     This Guide is to be read with, and is subject to, the Order, the Family Proceedings Rules (Northern Ireland) 19967 (as amended) and the Magistrates’ Courts (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 19968 (as amended).

1.5     The parties are expected to co-operate actively with each other and with the court in achieving the Object.

1.6     In this Guide a reference to a day by which something is to be done is a reference to the number of working days after the date of issue of proceedings, not including the date of issue.

1.7     In this Guide any reference to a “judge” or “court” includes;

  1. a judge of the Court of Judicature;
  2. a County Court judge;
  3. a District Judge (Magistrates’ Court) whether sitting with, or, exceptionally,  without Lay Magistrates.

1.8     In this Guide the term “private law proceedings” means proceedings of the nature referred to in paragraph 1.1.  Where there are concurrent private law and public law proceedings the latter shall take precedence unless the court otherwise directs.

1.9     In this Guide the term alternative dispute resolution includes mediation, conciliation, arbitration and any other form of alternative dispute resolution.
If the parties do engage in some form of alternative dispute resolution which affects a child, a court which is asked to make an order or to decide that it is better for the child not to make an order or to dispose of proceedings by granting leave to withdraw will require to be satisfied that in so far as a child is concerned the resolution proposed is in the best interests of each child concerned.

1.10   In this Guide  reference to the timetable for the child is a reference to a document which sets out any anticipated event in the child’s life which is likely to be significant to the child including, but not limited to, any change in home address or placement, any change of school, any significant examination, the making or review of any statement of special educational needs, any hospital admission or examination by a paediatrician or other specialist.

1.11   Where this Guide provides for the disclosure of documents, all documents disclosed shall be treated in the same manner as if they had been filed in court in the course of proceedings and shall not be disclosed to any other person without;

  1. the consent of the party making the disclosure and every other party to whom the disclosure has been made; or
  2. in any case where proceedings have been commenced, the leave of the court.

The Key Stages

2.1     The basis of the system is to identify what is to occur at each stage of the proceedings and encourage the court and the parties to achieve each necessary step in the proceedings at as early a stage as is consistent with the Object.  It is, however, recognised that every key stage may not be appropriate to every case, that time limits may sometimes need to be extended or abridged, that a stage may overlap with an earlier or subsequent stage and that the court needs to retain flexibility to enable it to deal with differing or changing circumstances.

2.2     It is intended that judicial continuity be maintained so that the judge who will eventually decide the case will manage it, wherever possible, continuously from an early stage.  It is therefore essential that each case be allocated or, if necessary, transferred to the appropriate level of court at the earliest practicable stage.

2.3     The principles set out in the Notes for Guidance in relation to the Allocation of Family Proceedings (which is appended to the Guide to Case Management in Public Law Proceedings and which is also appended to this Guide) apply to the allocation of private law proceedings as they do to public law proceedings.  Where a court transfers an application it shall record its detailed reasons for such transfer and transmit them with the papers.

2.4     The key stages are;

  1. Pre-proceedings;
  2. The commencement of proceedings;
  3. The First Directions Hearing;
  4. Case Management Hearing;
  5. Final Review Hearing;
  6. Final Hearing.

Stage 1 – Pre-proceedings

3.1     Except where it is not possible to do so consistently with the best interests of the child or where immediate intervention is required, a party considering the issue of private law proceedings shall first;

  1. consider whether some form of alternative dispute resolution might, in all the circumstances of the case, provide a means of resolving the issues between the parties more consistently with the Object than proceedings in court;
  2. communicate with all other likely parties retaining a permanent, contemporaneous record (usually a copy letter or e-mail) of the communication with the purpose of encouraging agreement between the parties and in a manner consistent with that purpose.

3.2     person who receives a communication sent under paragraph 3.1(2) shall respond promptly by use of a similar means and again retaining a similar record.

3.3     Communications between the potential parties under paragraph 3.1(2) and 3.2 shall;

  1. state the proposals of the party sending or receiving the communication in relation to all matters apparently in issue between the potential parties (with reasons);
  2. state, in a summary and non-contentious way, the facts which that party considers relevant to the matters apparently in issue;
  3. state the view of the party sending or receiving the communication in relation to alternative dispute resolution (where appropriate, with reasons);
  4. be written in a way which encourages rather than discourages agreement.

3.4     The initial communication of the potential party under paragraph 3.1(2) and the initial response of each potential party to that communication shall be open.   Where further communications are exchanged each party making a communication shall consider whether it should not also be an open communication.

3.5     Any relevant documents held by one only of the potential parties should be disclosed to all other relevant potential parties at the earliest possible stage provided that such disclosure is not contrary to the best interests of the child.

Stage 2 - The commencement of proceedings

4.1     If proceedings are to be commenced the following documents shall be prepared, filed in court and served on all parties;

  1. Form C1 (accompanied, where appropriate, by Form C1A);
  2. a document showing a proposed timetable for each child, with detailed reasons;
  3. if any child has been the subject of a UNOCINI or other social services’ report a copy of each and every such report.

4.2     There shall be strict compliance with the Guidance Notes provided in respect of the statutory forms.  Each relevant question must be openly, honestly and comprehensively answered.  All relevant information must be given.  It is not acceptable to answer by reference to some other document and, in particular, it is not acceptable to attach an actual or a draft statement that has not been directed by the court.

4.3     Copies of all relevant open communications sent in compliance with paragraphs 3.1(2) or 3.2 and any documents attached to such communications shall be attached to the Form C1.

4.4     Where leave is required for the issue of proceedings, the application for leave shall be accompanied by a draft of the application for which leave is sought.  The draft application shall indicate the intended parties should leave be granted and have attached to it copies of all relevant communications sent under paragraph 3.1(2) and any accompanying documents.   The court may grant leave without a hearing.   If leave is not so granted, the court will fix a date for a leave hearing and direct which persons (if any) in addition to the applicant for leave are to be given notice of the hearing.

Stage 3 – The First Directions Hearing

5.1     The First Directions Hearing will be held as soon as practicable after the service of proceedings.  The purposes of the first directions hearing are to explore resolution of the issues between the parties and, if resolution is not possible, to give directions as to when and how the outstanding issues are to be determined.

5.2     At the First Directions hearing the court shall consider whether to direct the parties to engage in some form of alternative dispute resolution.

5.3     The court shall consider and give directions upon such of the following matters as appear relevant;

  1. The service of proceedings or notice of the proceedings and /or any accompanying documents on any other person;
  2. The representation of any child whom the court considers ought to be represented in the proceedings under the appropriate Family Proceedings Rules;
  3. The representation of any party who is or may be under a disability;
  4. For transfer, if appropriate:
  5. The timetable for the child;
  6. How and by whom the wishes and feelings of each child are to be ascertained;
  7. The filing of statements or evidence (if considered necessary);
  8. The disclosure of documents between the parties (if considered necessary);
  9. The filing of reports (if appropriate);
  10. The carrying out of Police or Social Services checks;
  11. A timetable for the conduct of the proceedings which is consistent with the timetable for the child;
  12. The identification of issues suitable for early decision;
  13. Whether any expert evidence is required (including any form of paternity test);.
  14. If the instruction of expert witnesses cannot be dealt with at that time, the fixing of a date by which any application for leave to instruct an expert and leave to disclose papers is to be filed and for the hearing of any such application9;
  15. The filing of case summaries;
  16. Any issue concerning disclosure of documents filed in court to any person who is not a party to the proceedings;
  17. The ordering of any investigation under Article 56 of the Order;
  18. Any direction to the Court Children’s Officer, including directions as to the completion of the appropriate referral form, the provision of information and documents relating to any prior Social Services involvement with the child and/or family of the child and the disclosure of any areas of agreement or disagreement identified between the parties whether as the result of any form of alternative dispute resolution or otherwise.10
  19. The fixing of a date for a Case Management Hearing and the giving of directions ancillary thereto (which may include the holding of a joint consultation);
  20. If it appears appropriate to do so, the fixing of a date for Final Hearing.

Stage 4 – Case Management Hearing(s)

6.1     The Case Management Hearing shall take place by day 40 after the First Directions Hearing (or, in the case of proceedings in a Family Proceedings Court, by the next available sittings of the court thereafter) or as otherwise directed by the court at the First Directions Hearing.

6.2     The object of the Case Management Hearing is to scrutinise compliance with the directions given at the First Directions hearing and give all necessary further directions for Final Hearing.  To that end the court will;

  1. Fix a date for Final Hearing (if it has not already done so) and give all necessary directions ancillary thereto, including the filing of trial bundles;
  2. Scrutinise compliance with the timetable for the child and all prior directions of the court;
  3. Consider and resolve any outstanding disclosure issues;
  4. Consider and determine any outstanding issues relating to expert evidence including the necessity of the attendance of any expert witness, court children’s officer or social worker providing a report under Article 4 of the Order and, if evidence from such a person is required, the receipt of such evidence by video-link, telephone or other electronic means;
  5. Consider any issues in relation to alternative dispute resolution;
  6. Consider whether any issue requires an Issue Resolution Hearing;
  7. Direct any meeting of experts (if considered appropriate);
  8. Direct a joint consultation (if considered appropriate) in advance of the Outstanding Issues Hearing;
  9. Direct the parties to identify those key issues which can be agreed and those which cannot;
  10. If considered appropriate, direct the filing of skeleton arguments, statements of those core issues have been agreed and those which have not (including the extent of and reasons for any disagreement) and of a draft of the Final Order sought by each party;
  11. Fix a date for the Final Review Hearing.

6.3     An Issue Resolution Hearing is a hearing held in advance of trial to;

  1. Resolve any issues which appear capable of resolution;
  2. Determine any issues which require to be determined in advance of trial;
  3. Deal with any issues which any party seeks to have determined but which do not appear to the court to be key issues which require to be determined at trial.

6.4     An Issue Resolution Hearing may be held at any time and may be combined with a Case Management Hearing.  The court may direct that evidence is to be taken, to what that evidence is to relate and the order in which each party shall adduce evidence and cross-examine witnesses.

6.5     Every effort should be made to deal with all case management issues at one hearing but it is recognised that in some cases that may not be possible, in which event the court, bearing in mind the timetables, will endeavour to deal with all such issues as soon as possible.

Stage 5 – Final Review Hearing

7.1     The purposes of the Final Review Hearing are to receive any report arising out of any alternative dispute resolution, consider whether a Final Order can be made without the necessity of a Final Hearing and, if it can not, ensure that the case is ready for trial.  The Final Review Hearing will be held as directed by the court and in any event not later than 2 weeks before the date fixed for Final Hearing.  The court may direct that a joint consultation be held between 3 and 7 days before the Final Review Hearing in order to review compliance with the directions already given and the timetable for the child and consider whether a Final Order can be made without the necessity of a Final Hearing and, if it cannot, what further directions (if any) may be required for the Final Hearing.  To that end consideration should be given to;

  1. Core issues and skeleton arguments;
  2. Witness template;
  3. Any revised time estimate;
  4. Readiness for trial;
  5. Any further identification and resolution or narrowing of issues;
  6. The possibility of evidence being received by video-link, telephone or other electronic means;
  7. The terms of any Final Order which might be made without the necessity of a Final Hearing;

7.2     If further directions are required then the party seeking such directions must file a draft list of proposed directions no later than 12 noon 2 working days before the Final Review Hearing.

7.3     If it appears that a Final Order can be made without the necessity of a trial then the court must be informed forthwith and a draft of the Final Order sought by the parties must be filed with the court as soon as possible thereafter.  The court may direct a hearing at any time for the purpose of making a Final Order and vacating all outstanding directions.

Stage 6 – Final Hearing

8        The Final Hearing shall take place in accordance with the timetable and, unless a split trial has been directed, resolve all outstanding issues.  At the conclusion of the hearing or any element of a split hearing, consideration shall be given to any need for anonymisation of any judgment and whether any judgment or any documents filed in court ought to be disclosed to any person not a party to the proceedings.

General

9.1     Nothing in this Guide is intended to affect the issue of applications to secure emergency relief and nothing in this Guide is intended to delay the issue of proceedings in cases where that is required in the interests of the child.

9.2     The solicitor and counsel (where instructed) who has conduct of the case and is likely to have conduct of the trial should attend every review and substantive hearing and joint consultation.  Where, exceptionally, this is not possible then another counsel and/or solicitor, as the case may be, who is familiar with the issues in the proceedings should attend.

9.3     In the event that it becomes apparent that it is not possible to comply with any date set by the court or this Guide within which anything is to be done, any party who becomes aware that compliance is not possible must apply to the court at the earliest possible opportunity, with detailed reasons, to vary the relevant date.

9.4     The court will facilitate the making or interlocutory orders administratively without a hearing when that can be done with the consent of all parties and without detriment to the interests of the child.  To that end the court must be informed that any such application is made with the consent of all the parties and written consents provided.

9.5     Wherever the facilities are available to the court and to the parties, the court will actively encourage the use of technology, including electronic information exchange and video or telephone conferencing.

Alternative Dispute Resolution

10.1   Alternative Dispute Resolution in its various forms has assumed an increasingly important role in private law proceedings and the court will encourage the parties to use a suitable form of alternative dispute resolution for the resolution of any issue wherever it is available within the timetable for the child, in the best interests of the child and reasonably practicable and safe.

10.2   It is acknowledged that there are cases in which some forms of alternative dispute resolution are not appropriate and may only serve to delay the resolution of the issues.   For example, mediation and/or conciliation may not be suitable in cases in which there are or have been issues as to serious physical and/or mental abuse by one party of another, or where a party suffers from a disability or is otherwise particularly vulnerable or where the dispute between the parties appears to be particularly intractable or where Social Services are actively involved with the child in relation to child protection issues or where a party has demonstrated a previous disregard for court orders or negotiated resolutions.

10.3   Where appropriate, the court will adjourn proceedings to allow a suitable form of alternative dispute resolution to be employed.

10.4   The court will require those providing any form of alternative dispute resolution to report to the court as to the progress and outcome of such process and the positions taken by each party.  The parties engaging in alternative dispute resolution which relates to a child must be made aware before they do so that by agreeing to do so each party will have irrevocably consented to the person providing alternative dispute resolution reporting to the court as directed by the court.

10.5   In the event that a person providing alternative dispute resolution is of the view that there are reasonable grounds for believing that a child has suffered or is likely to suffer significant harm within the terms of Article 50 of the Order then that person must forthwith report all material circumstances to the court and the relevant Health and Social Services Trust.

23rd. November 2012

1 Orders for residence or contact, permitting the change of a child’s name, permitting a child to be taken out of the United Kingdom for more than one month and other orders with respect to children, including orders varying or discharging such orders.

2 1995 (NI 2)

3 Parental responsibility order.

4 “authority” means a Health and Social Services Board and a Health and Social Care Trust

5 Article 3 provides that the child’s welfare is to be the paramount consideration and sets out the welfare check-list.

6 The overriding objective is to enable the court to deal with cases justly which includes, so far as is practicable;
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which bare proportionate to-
      (i) the amount of money involved;
     (ii) the importance of the case;
    (iii) the complexity of the issues; and
    (iv) the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

7 SR 1996/322

8 SR 1996/323

9 The hearing of any application for leave to instruct an expert and the disclosure of documents ought to take place as soon as practicable after the filing of the relevant application and need not await the Case Management Hearing.

10 It is anticipated that the provision of a report by a Court Children’s Officer may take up to 8 weeks.