The Children (Northern Ireland) Order 1995: Articles 8 and 29; children in voluntary care; contact arrangements; public and private law.

Author:O'Halloran, Kerry
Position:Northern Ireland - Case study
 
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In the Matter of the South Eastern Health and Social Care Trust v. C The Court of Appeal (Kerr LCJ, Higgins LJ and Girvan LJ) Delivered 3 April 2009

This case concerned an application for judicial review by C, the father of four children, from an order made by Coghlin LJ who had quashed a decision made by the District Judge in the Family Proceedings Court. The District Judge had determined that he did not have jurisdiction to hear and determine an application brought by C for a contact order made under Article 8 of the Children (Northern Ireland) Order 1995. As explained by Girvan LJ:

The case raises an important question, apparently not yet decided by higher authority, namely whether a Family Proceedings Court has jurisdiction to make a contact order in relation to children who are accommodated by an authority under voluntary care arrangements where they are not the subject of a care order or an interim care order.

Background

Towards the end of 2007, C and the children's mother, SB, agreed to their four children: JC (aged eight), DC (aged seven), DC (aged five) and AC (aged three), being placed in voluntary care accommodation with foster carers under the supervision of the Trust. As would be normal in such cases, an agreement was entered into between the parents and the Trust in relation to the fostering of the children. This agreement made provision for (inter alia) contact between the parents and the children twice a week, with the Trust to make the necessary arrangements to facilitate that contact.

In January 2008, the mother applied for a residence order and the Trust responded with proceedings for a care order. At a timetabling meeting in March 2008, the District Judge fixed the full hearing of the application for October 2008. In the meantime, the parents agreed that they were not withdrawing their consent to the voluntary care arrangements and the Trust saw no need to pursue an interim care order in respect of the children, who were not perceived to be at risk of harm.

The issue of parental contact was a constant 'thorn in the side' in the relationship between the parents and the Trust. There were parental complaints about the frequency and the organisation of contact from the outset. The Trust decided to bring those issues before the court and attempted to do so in May by making an application under Article 53 of the 1995 Order. This was misconceived because Article 53 only comes into play when an interim or full care order is actually in place and the application was dismissed.

However, the District Judge decided to list the interim care order application which, if it resulted in such an order being granted, would enable the court to rule on parental contact in the meantime pending determination of the full care application. Counsel for the parents submitted to the court that it had power to grant an Article 8 contact order as there was no express provision in the Order that precluded the making of such an order...

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