11 March 2019
Summary of judgment - M v SE Health and Social Care Trust
11 March 2019
COURT CLARIFIES ARRANGEMENTS FOR APPLICATIONS FOR
EMERGENCY PROTECTION ORDERS
Summary of
Judgment
The
Court of Appeal today clarified the procedure for District Judges (Magistrates’
Courts) when determining applications for Emergency Protection Orders.
On
5 October 2017, the South Eastern Health and Social Care Trust (“the Trust”)
made an application for an Emergency Protection Order (“EPO”) in respect of two
children of pre-school age. The
solicitor to the Trust contacted the solicitors for the mother and father
advising that the application had been served and advising them to travel to
Craigavon Court for the hearing. Later
that afternoon the Trust advised the children’s mother (“the appellant”) of
their intention to bring the application.
During his journey to the courthouse, the appellant’s solicitor received
a telephone call from a member of the court staff and was told he would have to
remain at the back of the courtroom and would not be permitted to speak during
the application. He was also advised
that the appellant would not be permitted into the courtroom during the
hearing. The proceedings had started before
the solicitor arrived and, in accordance with the judge’s direction, he and the
appellant and her witness remained outside the courtroom during the hearing.
The
appellant, the Trust and the Department of Justice (“DoJ”) all agreed before
the Court of Appeal that the application was intended to be, and should have
been, treated as an inter partes
application. It was further agreed that
there was no justification for proceeding on an ex parte basis and the written application did not purport to be
this. Nonetheless, at the outset of the
hearing on 5 October 2017 the Trust applied for leave to proceed ex parte. It told the Court it did so on the ground
that the situation was urgent as this was the only way that it could get the
EPO application heard that evening and the District Judge (Magistrates’ Courts)
(“DJMC”) considered he had no jurisdiction to conduct an inter partes contested
hearing when sitting alone. In his
affidavit he stated that “the notion of somehow re-constituting a Family
Proceedings Court (“FPC”) out of hours did not occur to him”. Following the hearing, the DJMC granted an
EPO and the children were removed from the mother’s care and fostered
separately for a period of seven days (the duration of the EPO).
The
appellant sought the opinion of the Court of Appeal on the following matters:
- Whether it was correct in law for the DJMC to not
allow her, who had been put on notice of the hearing, to give evidence or
make submissions to contest the Trust’s application for an EPO which
sought to remove her children from her care;
- Whether it was correct in law to dismiss the lay
panel members who had been sitting in Craigavon Family Proceedings Court
on 5 October 2017 at 6.20 pm and thereafter at 6.25 pm to proceeding to
hear the application for an EPO ex parte sitting as a magistrates’ court.
The
DJMC sought the opinion of the Court of Appeal on the following matter:
- Whether he was correct in law in holding that a
DJMC, sitting alone, whether in or out of petty sessions, does not have
jurisdiction to hear an application for an EPO unless satisfied that the
application must proceed on an ex parte basis and therefore cannot
entertain representations of evidence from a respondent, regardless of
whether or not the applicant has informed the respondent of the intended
application.
Statutory Framework
The
Children (Allocation of Proceedings) Order (Northern Ireland) 1996 (“the 1996
Order”) provides that applications for EPOs shall be commenced in a
family proceedings court, which is defined as a resident magistrate, who shall
be chairman, and two lay magistrates, of whom one, at least, must be a
woman. There are only two statutory
exceptions to this requirement:
- Schedule 2, paragraph 4 of the Children and Young
Persons Act (NI) 1968 provides that the DJMC shall have the power to act
notwithstanding that any other member “fails to attend and remain present
during the sitting of the court”.
The Court of Appeal said this provision had no application in this
case as the lay magistrates were never asked to attend. It commented that the DJMC was aware
during the course of the sitting of a properly constituted FPC that an
application for an EPO was being brought, the parents had been put on
notice and their solicitors were travelling to court for the purpose of
the hearing. The Court said the lay
magistrates could have been requested to remain to allow a properly
constituted FPC to preside or, alternatively the DJMC could have directed
that attempts be made to recall the lay magistrates who may have just
departed. Instead, the DJMC
explained in his affidavit that “the notion of somehow re-constituting a
FPC out-of-hours did not occur to him”.
- Rule 2(5) of the 1996 Order provides that
proceedings on an ex parte application can be
dealt with by a DJMC sitting alone.
Case law emphasises, however, the extreme gravity of such
applications and the exceptional circumstances which would have to be
established to justify proceeding without the involvement or input of the
parent from whom the Trust proposes to remove the child. This case, however, did not fall into
the principles established by case law which foresee ex parte applications
being made when the case is extraordinarily urgent or when alerting the
parents to the application could prejudice the welfare of the child. The Court noted that in this case the
Trust advised the appellant of their intention to move the application
that day; the Trust served a copy of the proceedings upon her solicitor;
discussions occurred between legal representatives as to the venue for the
hearing; the appellant attended with her witness to contest the hearing
but were excluded from the court; and the legal representatives were
permitted to be present but were expressly forbidden from making
representations.
The
Court of Appeal held that, in light of the above circumstances, the DJMC was
“plainly wrong” to proceed on an ex parte basis:
“A properly constituted court should have been
convened. The indications are that this
would have been readily achievable by taking the simple step of asking the lay
members to remain to allow the existing properly constituted FPC to preside
over the case. Alternatively [the DJMC}
could, if necessary, have directed attempts to have the lay members recalled.”
The
Court said that an inter partes hearing is the presumptive starting point for
an EPO. Such a hearing is generally
necessary to vindicate the common law and Article 6 and 8 ECHR rights of the
parent. It also enhances the rigour and
fairness of the proceedings by ensuring that the court is as fully informed as
possible before being tasked with deciding whether the draconian step of
removing a child from its parent(s) is necessary and justified: “By proceeding ex parte and failing to
convene a properly constituted court the DJMC acted unlawfully with the
consequence that the appellant was denied her right to a fair hearing before a
properly constituted court.”
The
Court also noted that the appellant had suffered further prejudice as the
legislation provides that there is no appeal from the making of an EPO although
the legislation does allow the parent to make an application to discharge the
order. However, a parent is not
entitled to bring such an application if he/she was given notice of the hearing
and was present at the hearing.
The
Court of Appeal said it was surprised to learn that it is not uncommon for some
DJMCs, even within normal court hours, to sit alone to determine inter partes
EPO applications:
“Whether in or out of normal hours the legislative
requirement is clear: EPO applications
must be commenced before a properly constituted FPC. If the urgency of an EPO application required
an inter partes application to be heard out of hours there is no legislative
restriction on the ability of the DJMC to convene the requisite court. The NICTS [Northern Ireland Courts and
Tribunals Service] would in discharge of its duties be required to make the
necessary arrangements to operate the legislative scheme and ensure the
attendance of the lay magistrates as necessary.
If a lay magistrate failed to attend the Court could invoke the
provisions of the [1968 Act] to continue in that member’s absence. Such out-of-hours- applications would only be
required where some urgency required it.
The rules already allow for expedited hearings within normal hours. In light of what we were told DJMCs should be
reminded of their duties under the current legislative provisions”.
NICTS Circular
The
Court expressed surprise as to why the notion of convening an out-of-hours
court did not occur to the experienced DJMC and said the explanation may lie in
the NICTS Circular No. 26/2009 which set out revised arrangements for the
conduct of out of hours emergency applications under the Children (NI) Order
1995 as a consequence of the recommendations endorsed by the Children Order
Advisory Committee. The revised
arrangements provided for the participation of DJMCs in the out-of-hours
service rather than only lay magistrates and the hearing of such applications
at designated courthouses rather than at the lay magistrate’s home. The Circular said nothing about out-of-hours
inter partes applications.
In
a section entitled “Inter Partes Hearing”, the Circular noted that there was no
legislative authority to make provision for a lay magistrate to deal with an
inter parte application and stated that there was no legislative provision for
a DJMC to deal with an inter-parte application out-of-hours. The Court of Appeal commented, however, that
court listings and sittings are matters for the judiciary and there is no
limitation on when a court may be convened.
The role of the NICTS is to provide administrative support for the arrangements
which the judiciary directs in order to give effect to the legislative
requirements surrounding the exercise of judicial authority:
“We have serious concerns about [the provision in the
Circular which states that if the applicant [trust] considers that it is
appropriate to give notice of the hearing to any other party, this should be
indicated to the duty clerk and be communicated by the duty clerk to the DJMC
who will determine if such notice should be given] and the imposition via
administrative circular of a role and jurisdiction which the DJMC does not
possess by virtue of any statute. Not
only is this role not envisaged by statute, it is in fact inconsistent with the
applicable legislative scheme. The
decision whether to move the application with notice is a matter for the Trust,
not the DJMC. The only judicial
supervision required by the legislative scheme is if the Trust apply to move
the application ex parte in which case leave is required.”
The
Court of Appeal also commented that the Circular is inconsistent with
established case law as to the exceptional circumstances required to justify an
ex parte application. This is because
the process envisages, as happened here, the conversion of an inter parte
application into an ex parte application.
The Court said the role of the court in an inter parte application is
confined to determining that application in the proper way with a properly
constituted court. If an ex parte
application is made the DJMC or a lay magistrate sitting alone are empowered
under the 1996 rules to deal with the ex parte application for an EPO. Such ex parte applications, for which leave
must first be obtained, will only be justified in exceptional circumstances. The Court of Appeal said the DOJ should
reconsider the Circular as a matter of urgency.
Conclusion
The
Court of Appeal concluded that the DJMC in this case was plainly wrong to
proceed and order as he did. The DJMC
was required in the circumstances of this case to convene the properly
constituted FPC to determine the Trust’s inter parte application for an EPO and
he failed to do so.
NOTES TO EDITORS
This summary
should be read together with the judgment and should not be read in
isolation. Nothing said in this summary adds to or amends the judgment. The
full judgment will be available on the Judiciary NI website (https://judiciaryni.uk).