Child Protection

The Northern Ireland law protecting neglected and abused children is largely comprised in the Children (Northern Ireland) Order 1995. This largely replicated the Children Act 1989 in England and Wales.

Where there is a risk of significant harm, the threshold for intervention applies. Social services will endeavor not to intervene unless the case is serious.

Social services may apply to court for a care order, supervision order, emergency protection order, child assessment order, secure accommodation order, or education supervision order.

The above types of orders are public orders involving the intervention of the Health and Social Care Authority. This is in contrast to private orders that may be entered by parents and others relating to the upbringing and care of children.

A court may make the latter types of private orders in an application by social services if it believes this is appropriate.

Intervention by social services in a family raises human rights issues. The European Convention on Human Rights guarantees respect for private and family life. It declares, however, that a public authority may interfere with the rights only where this is necessary in the interest of various factors, including the protection of health and the protection of the rights and freedom of others.

Where intervention takes place, it must be objectively necessary. The response must be proportionate. The intervention must take place in accordance with fair procedures.

The Children’s (Northern Ireland) Order provides that no proceedings affecting a child’s upbringing, that child’s welfare shall be the paramount consideration. This plays a role in both public proceedings and in proceedings by social services by way of intervention. The child’s welfare is the overriding factor.

When all the relevant facts, relationships, claims, and wishes are taken into account, the course to be followed is that which is most in the interest of the child’s welfare.

It appears in the United Kingdom courts that placing the child’s interests as paramount is consistent with the Convention on Human Rights.

As for private family law matters, the courts ought to have regard to a number of circumstances in relation to the child:

• The ascertainable wishes and feelings of the child relative to his age and understanding.
• Physical, emotional, and educational needs.
• The effect of a change in circumstances.
• Age, sex, background, and characteristics which the court considers relevant.
• How much the child has suffered or is at risk of suffering.
• The ability of his parents or others to meet his needs.
• The rights and powers available under the Children’s Order.

The Children’s Order provides a number of general principles which should apply.

It is a principle that the courts should not make an order in family proceedings unless it considers that doing so is better than making no order. The legislation directs courts to avoid delays in view of the likely effect of a delay on the child’s welfare. In order to implement these principles, the courts actively manage cases to ensure that they proceed expeditiously.

The court will hold case management hearings giving directions in relation to the progress of the case.

The organization of the courts in children’s and matrimonial matters generally is different from that in ordinary civil cases. High Court cases are heard by the family division of the High Court. The county courts that deal with family matters are deemed Family Care Centers. The Family Proceedings Court is the magistrates’ court when dealing with family matters.

Applications in relation to children are generally made in the Family Proceedings Court unless proceedings are ongoing in another court. In the latter case, the application must be made to the relevant court.

Cases may be allocated and transferred between the above courts depending on the circumstances, complexity, and seriousness of the issue. The transfer may take place on the application by a party or by the court on its own motion. Transfers are relatively unusual and are likely to take place only to the High Court in complex cases.

The department has issued detailed guidance in relation to the children’s orders. The Health and Social Services Board each have an Area Child Protection Committee. The committees supervise the child protection system in the health board areas. The ACPC includes members of the relevant professionals, the police, probation, and certain social services, and voluntary organizations.

Each health trust has a child protection panel; these bodies assess the manner in which the child protection system functions. It is comprised of representatives similar to those on the ACPC.

Private bodies may be authorized to apply for a child intervention order. Formerly, the NSPCC, a private body, undertook applications under the predecessor legislation. This is relatively rare under the new legislation.

Guardian ad litem is a representative appointed to represent the interests of the child in Child Care Proceedings. Guardian ad litem are social workers appointed by the court for the purpose of providing an independent report of the child’s circumstances and officers who are dealing with the child in its best interest, a panel of guardians are maintained.

The guardian is to have regard to the principle that the child’s welfare is paramount in compiling his or her report; they are to advise the court in relation to certain matters, including the child’s understanding, the child’s wishes in respect to the matter, the appropriate forum and options open to the court and their suitability. A guardian may be directed to advise on particular matters. He or she may also advise on matters that he or she believes relevant to the court.

The guardian has powers to undertake investigations, interviews, and inspect documents and instruct lectures for the purpose of the role. The solicitor is instructed by the guardian to advise the child. The solicitor must be satisfied as to the ability of the child to give instructions, taking into account the views of the guardian and the experts. However, if the child is incapable of instructing, the guardian may do so.

Trusts are obliged to investigate cases where it appears the child is suffering or likely to suffer significant harm. The court may order an investigation to be carried out arising from matters disclosed in family proceedings; the trust is obliged to complete an investigation within eight weeks and give reasons as to why and whether it is appropriate to apply for a care or supervision order.