orthern Ireland Commissioner for Children and Young People's application
| Jurisdiction | Northern Ireland |
| Judgment Date | 2007 |
| Neutral Citation | [2007] NIQB 115 |
| Date | 21 December 2007 |
| Year | 2007 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation no. [2007] NIQB 115 Ref:
GILF7001
Judgment: approved by the Court for handing down Delivered:
21/12/07
(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 FOR JUDICIAL REVIEW BY
THE NORTHERN IRELAND COMMISSIONER FOR CHILDREN AND
YOUNG PEOPLE OF DECISIONS MADE BY PETER HAIN THE
SECRETARY OF STATE AND DAVID HANSON THE MINISTER OF
STATE
_________
GILLEN J
The application
[1] Leave to bring this Judicial Review was granted on 12 September 2006.
In this matter the Northern Ireland Commissioner for Children and Young
People (“the applicant”) seeks to challenge the legality of and quash the
decisions of Peter Hain the Secretary of State and David Hanson the Minister
of State (“the respondents”) to introduce into law, to lay before Parliament
and to enact Article 2 of the Law Reform (Miscellaneous Provisions)
(Northern Ireland) Order 2006 (“Article 2 of the2006 Order ” or “the
impugned article “). In short this impugned article provides for a defence of
reasonable chastisement of a child to a charge of assault. In addition the
applicant challenges the legality of Article 2 of the 2006 Order seeking a
declaration of incompatibility of the legislation with the European
Convention on Human Rights and Fundamental Freedoms (“the
Convention”). In the applicant’s amended Order 53 statement the relief
sought is set out at paragraph 3 and the grounds on which such relief is
sought are set out at paragraph 4. In the course of a wide-ranging skeleton
argument, Ms Higgins QC, who appeared on behalf of the applicant with Ms
McMahon, refined the grounds under five general headings :
(i) Illegality (or lack of vires) on the basis that Article 2 breaches
Convention rights namely Articles 3, 8 and 14 of the Convention and the
provisions of the United Nations Convention on the Rights of the Child 1989
(“UNCRC”) and is therefore unlawful or of no legal effect pursuant to s. 6 of
the Human Rights Act 1998 (“HRA 98”) or s. 24 and s.26 of the Northern
Ireland Act 1998 (“NIA 98”);
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(ii) An unfair and unreasonable denial of a legitimate expectation that the
applicant would be consulted with before a policy decision was taken by the
respondents on the question of the physical punishment of children;
(iii) An unfair and unreasonable denial of legitimate expectation that the
respondents would not depart from the principles and policies stipulated in
the Office of Law Reform(“ OLR”) consultation document and the Children’s
Strategy in the absence of any cogent explanation for doing so;
(iv) Breaches of the principles of fairness and unreasonableness in failing to
take account of various relevant and important matters; and
(v) Irrationality on the grounds of perversity and of mistaken
understanding of the facts.
[2] The applicant
The applicant is the Northern Ireland Commissioner for Children and Young
People (“the Commissioner”) and derives her power from the Children and
Young People (NI)Order 2003(“the 2003 Order”).Articles 6,7and 14 of the 2003
Order are as follows :
“6. Principal aim of the Commissioner
(1) The principal aim of the Commissioner in
exercising his functions under this Order is to
safeguard and promote the rights and best interests of
children and young persons. ….
(3) In determining whether and, if so, how to
exercise his functions under this Order, the
Commissioner shall have regard to –
(a) the importance of the role of parents in the
upbringing and development of their children;
and
(b) any relevant provisions of the United Nations
Convention on the Rights of the Child.
Functions of the Commissioner
Duties of the Commissioner
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7.-(1) The Commissioner shall promote –
(a) an understanding of the rights of children and
young persons;
(b) an awareness of the importance of those rights
and a respect among children and young
persons for the rights of others; and
(c) an awareness of matters relating to the best
interests of children and young persons.
(2) The Commissioner shall keep under review the
adequacy and effectiveness of law and practice
relating to the rights and welfare of children
and young persons.
(3) The Commissioner shall keep under review the
adequacy and effectiveness of services
provided for children and young persons by
relevant authorities.
(4) The Commissioner shall advise the Secretary of
State, the Executive Committee of the
Assembly and a relevant authority on matters
concerning the rights or best interests of
children and young persons –
(a) as soon as reasonably practicable after receipt
of a request for advice; and
(b) on such other occasions as the Commissioner
thinks appropriate.
……………………………………….
Power to bring, intervene in or assist in legal
proceedings
14.-(1) Subject to the following provisions of this
Article, the Commissioner may in any court or
tribunal –
(a) bring proceedings (other than criminal
proceedings) involving law or practice
concerning the rights or welfare of children or
young persons;
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5 cases
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Allister (James Hugh) et al’s Application AND In the matter of the Protocol NI
...a constitutional statute in the case of Re Northern Ireland Commissioner for Children and Young People’s Application for Judicial Review [2007] NIQB 115. [86] That said, there had been relatively few references to “constitutional statutes” in the case law. In Watkins v Home Office [2006] UK......
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The Children's Rights Alliance for England v Secretary of State for Justice G4s Care and Justice Services (uk) Ltd and Another (Interested Parties)
...Commissioner for Children and Young People of Decisions Made by Peter Hain the Secretary of State and David Hanson the Minister of State [2007] NIQB 115. In that case the Northern Ireland Commissioner for Children and Young People sought to challenge the legality of and to quash the decisio......
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R The Children's Rights Alliance for England v The Secretary of State for Justice G4s Care and Justice Services (uk) Ltd and Another (Interested Parties) The Equality and Human Rights Commission (Intervener)
...care and in considerable detail. Thereafter, following an extremely ample treatment of the decision of Gillen J in Northern Ireland Commissioner for Children and Young People [2007] NIQB 115, he upheld the submission that Mr Hermer's client was not a victim within the meaning of s.7(1) and ......
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K v Public Prosecution Service
...law unless incorporated into it by some legislative act (per Gillen J in Re Northern Ireland Commissioner for Children and Young People [2007] NIQB 115). Having taken all those matters into account, the Panel refused the application to exclude the interview evidence. [5] The appellant appli......
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