In the matter of an application by the Official Solicitor on behalf of N and R for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 2005 |
| Neutral Citation | [2005] NIQB 75 |
| Date | 08 December 2005 |
| Court | Queen's Bench Division (Northern Ireland) |
Neutral Citation No. [2005] NIQB 75 Ref:
GILC5435
Judgment: approved by the Court for handing down Delivered:
8/12/2005
(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 THE OFFICIAL SOLICITOR
ON BEHALF OF N AND R FOR JUDICIAL REVIEW
________
GILLEN J
Introduction
[1] In this matter the Official Solicitor as next friend of a child N born 22
October 1992 and a child R born 25 July 1995,both of whom are subjects of
pending Care Order proceedings before a Family Proceedings Court issued
by a Community Hospital Trust (“the Trust”), seeks the following relief:
(i) A declaration that the learned Resident Magistrate hearing this case
had no jurisdiction to make an Order of 22 June 2005 ordering that the
guardian ad litem make disclosure of her notes of conversations with the
mother of these children and with the children themselves to the mother and
to the other parties in the proceedings .
(ii) Further, or in the alternative, if the learned Resident Magistrate did
have jurisdiction to make the said Order for disclosure, a declaration that he
erred in law in exercising his discretion to order disclosure against the
guardian ad litem (“gal”) to the extent that he did or at all.
(iii) An Order of Certiorari to remove into this Honourable court and quash
the said decision.
(iv) An Order of Mandamus to compel the learned Resident Magistrate to
consider the application for disclosure according to law.
The grounds upon which relief is claimed are, as amended, set out as follows
by the applicant:
2
“(1) The learned Resident Magistrate had no power, no authority and/or
jurisdiction to make an Order for disclosure against the guardian ad litem
given that his powers are restricted to those set out in the Children (Northern
Ireland) Order 1995 and the Magistrates Courts (Children (Northern Ireland)
Order 1995) Rules (Northern Ireland) 1996. These powers do not include the
power to order disclosure. (By way of contrast, a judge in the County Court
or High Court does have a power to order disclosure. The Family
Proceedings Rule (NI) 1996 provide at Rule 1.4 that the Supreme Court Rules
and County Court Rules apply with the necessary modifications to “the
practice and procedure in family proceedings”. This means that the Rules in
each of those courts on discovery apply (for example, Order 24 of the
Supreme Court Rules applies to all family proceedings).
(2) If the learned Resident Magistrate did have power to order the said
disclosure he erred in law in exercising his discretion to do so in that:
“(a) He failed to recognise that the Guardian ad
Litem is not, in fact, a party to the proceedings but
rather a person appointed under Article 60 of the
Children (NI) Order 1995 with a duty to safeguard
the interests of the child.
(b) He failed to consider whether, and explain
why, any disclosure was necessary for the fair
disposal of the proceedings.
(c) He failed to consider whether, and explain
why, disclosure was necessary beyond the
guardian ad litem’s record of the disputed
conversation with the child’s mother.
(3) To the extent that it is or may be contended that disclosure is necessary
for the purposes of a fair trial pursuant to Article 6 of the European
Convention on Human Rights:
(a) Parliament has deliberately decided not to
allow orders for disclosure to be made in the
Family Proceedings Court.
(b) The fact that there is a power to order
disclosure in the County Court and the High Court
does not mean that it is necessary for a fair trial in
the Family Proceedings Court – see in this context
the judgment of Gillen J in Re Butler [2004] NI 93
at page 109, paragraph 36.”
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