ES's application
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 05 September 2007 |
| Neutral Citation | [2007] NIQB 58 |
| Year | 2007 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 05 September 2007 |
1
Neutral Citation no. [2007] NIQB 58 Ref:
GILC5850
Judgment: approved by the Court for handing down Delivered:
5/9/07
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY
ES FOR JUDICIAL REVIEW
AND IN THE MATTER OF THE DECISIONS TAKEN BY
A COMMUNITY HEALTH AND SOCIAL SERVICES TRUST ON 26 MAY
2006
AND IN THE MATTER OF DECISIONS TAKEN BY THE FAMILY
PROCEEDINGS COURT SITTING AT BALLYMENA
ON 26 MAY 2006 AND 31 MAY 2006
________
GILLEN
[1] The judgment in this case is being distributed on the strict
understanding that in any report no person other than the advocates or the
solicitors instructing them may be identified by name or location and that
in particular ,the anonymity of the child and the adult members of her
family must be strictly preserved
APPLICATION
[2] These are applications by the mother and father of a child whom I shall
identify as K born on 28 April 2006. They arise out of an Emergency
Protection Order (EPO) made by the Family Proceedings Court sitting at
Ballymena courthouse on 26 May 2006 and 31 May 2006. For the purposes of
protecting the identity of the child K (now aged 1) I shall identify the first
named applicant, the mother, as X and the second-named applicant, the
father, as Y.
[3] As will be clear from the background that I shall shortly set out events
have now moved on and it is no longer necessary for the applicants to
challenge, as they initially did, the decision of the Family Proceedings Court.
Rather the applicants now rely on the matter as one of public interest and
seek:
2
(a) A declaration that the provisions of Article 64(9)(a) and 64(9)(b) of
the Children (Northern Ireland) Order 1995 (the 1995 Order) are
incompatible with Article 6 of the European Convention on Human
Rights and Fundamental Freedoms(“the Convention“) in that the
provisions leave an individual with no right of appeal against
EPOs.
(b) A declaration that the provisions of Article 64(10) of the 1995 Order
are incompatible with Articles 6 and 8 of the Convention as they
deny an individual the right to apply to discharge an EPO in
circumstances where the individual was present at the hearing at
which the Order was made.
(c) A declaration that the provisions of Article 64(8) of the 1995 Order
are incompatible with Articles 6 and 8 of the Convention as the
Articles deny an individual the right to apply to discharge an EPO
before the expiry of the period of 72 hours beginning with the
making of the Order.
(d) A declaration that the provisions of Article 64(8), (9)(a), (9)(b) and
(10) in totality are incompatible with Article 6 and 8 of the
Convention.
Background
[4] Because of developments that occurred in this case since its inception,
the factual matrix became less important than the discrete legal issue that
arose under Articles 6 and 8 of the Convention . The background facts are as
follows.
(1) A Health and Social Services Trust, which I do not propose to
name, (“the Trust”) had harboured concerns about the mother of
the child who is the subject of this application since 2003 following
the birth of twins to her. She had a history of mental health
problems including self harm, suicide attempts, anxiety and
depression coupled with drug and alcohol abuse. She had
displayed an inability to cope with parenting her twins despite a
high level of professional support. These two children had been
freed for adoption in March 2006. The Trust had also entertained
concerns about the father Y since 2001 fuelled by the belief that he
was using heroin and had taken a number of overdoses. In March
2006 the as yet unborn child K was placed on the Child Protection
Register. On 18 May 2006 a community midwife had contacted the
Trust expressing concerns about X’s mental health.
3
(2) On 23 May 2006, at the suggestion of C, a senior practitioner social
worker of the Trust, X and Y had agreed to K staying overnight
with her paternal grandparents. This had occurred after an incident
when Y had telephoned the Trust to say that X had threatened to
kill herself by cutting her throat.
(3) On 24 May 2006 K remained in the home of her paternal
grandparents and X moved into their home with a view to her
parenting K with the support and rest that she needed.
(4) On 26 May 2006 the PSNI attended the home of X and Y about 6.00
am after a domestic dispute between the couple had been reported.
However when the PSNI arrived at their home, X had returned to
the home of the paternal grandparents. When the police arrived at
home of the grandparents, the grandmother was found to be
intoxicated and incoherent.
(5) C, together with the PSNI and another social worker, visited the
grandparents home at about 11.30 am on 26 May 2006. C deposed
that she found the smell of alcohol to be overwhelming. She
noticed the grandmother to be intoxicated, tripping over the stairs
in her presence and she observed X to be dishevelled with
tearstains down her face and cheek. X informed her that the
grandparents had been drinking the night before, that she herself
had consumed three to four vodka drinks the night before and she
had left K in the sole care of the grandparents whilst she had
returned to her own home when a dispute ensued.
(6) In explaining the risks to K, C discussed with X the option of K
being accommodated by the Trust. She observed X to become very
upset and although after a considerable period of time she stated
she would agree to the Trust accommodating K, C entertained
grave concerns about her capacity to give a full and valid
agreement in light of her emotional state, presentation, demeanour
and consumption of alcohol.
(7) The PSNI present on 26 May 2006 shared those concerns and took
the child into police protection for 72 hours due to expire on
Monday 29 May 2006.
(8) C met X in the company of a social worker and a PSNI officer about
1.30 pm on 26 May 2006. C then made contact with X’s General
Practitioner who agreed to visit her and alert the Trust’s crisis
response team. At this point it had not been possible to make
contact with Y, the PSNI having been unable to elicit a response
from him at his home address. However the evidence from the
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